Sanidad Vs COMELEC

7/16/2018 SUPREME COURT REPORTS ANNOTATED VOLUME 073
VOL. 73, OCTOBER 12, 1976 333

Sanidad vs. Commission on Elections
No. L-44640. October 12, 1976.
*
PABLO C. SANIDAD and PABLITO V. SANIDAD, petitioner, vs. HONORABLE COMMISSION ON

ELECTIONS and HONORABLE NATIONAL TREASURER, respondents.
No. L-44684. October 12, 1976.
*
VICENTE M. GUZMAN, petitioner, vs. COMMISSION ELECTIONS, respondent.

No. L-44714. October 12, 1976.
*
RAUL M. GONZALES, RAUL T. GONZALES, JR., and ALFREDO SALAPANTAN, petitioners, vs.
HONORABLE COMMISSION ON ELECTIONS and HONORABLE NATIONAL TREASURER,
respondents.
_______________
*
EN BANC.
334
334 SUPREME COURT REPORT ANNOTATED

MARTIN, J., (ponente)
Constitutional law; Valid source of statute may be challenged by one who will sustain direct injury as a result
of its enforcement.—We rule that the petitioners in L-44640 (Pablo C. Sanidad and Pablito V. Sanidad) possess
locus standi to challenge the constitutional premise of Presidential Decree Nos. 991, 1031 and 1033. It is now an
ancient rule that the valid source of a statute—Presidential Decrees are of such nature—may be contested by one
who will sustain a direct injury as a result of its enforcement. At the instance of taxpayers, laws providing for the
disbursement of public funds may be enjoined, upon the theory that the expenditure of public funds x x x for the
purpose of executing an unconstitutional act constitutes a misapplication of such funds. The breadth
http://www.central.com.ph/sfsreader/session/00000164a3a59b0889a9c9c3003600fb002c009e/t/?o=False 1/125
of P.D. No. 991 carries an appropriation of Five Million Pesos for the effective implementation of its purposes.
Presidential Decree No. 1031 appropriates the sum of Eight Million Pesos to carry out its provisions. The interest of
the aforenamed petitioners as taxpayers in the lawful expenditure of these amounts of public money sufficiently
clothes them with that personality to litigate the validity of the Decrees appropriating said funds.
Same; Amending process of the Constitution raises a judicial question. —The amending process, both as to
proposal and ratification, raises a judicial question. This is especially true in cases where the power of the
Presidency to initiate the amending process by proposals of amendments, a function normally exercised by the
legislature, is seriously doubted.
Same; Political question; Political questions are associated with the wisdom, not legality, of a particular act.—
Political questions are neatly associated with the wisdom, not the legality of a particular act. Where the vortex of the
controversy refers to the legality or validity of the contested act, that matter is definitely justiciable or non-political.
Same; Same; Issue of whether the President can assume the power of a constituent assembly is a justiciable
question.—What is in the heels of the Court is not the wisdom of the act of the incumbent President in proposing
amendments to the Constitution, but his constitutional authority to perform such act or assume the power of a
constituent assembly. Whether the amending process confers on the President that power to propose amendments is
therefore a downright justiciable question.
Same; Same; Whether the constitutional provision on amending procedures has been followed or not is a
proper subject of inquiry, not
335
VOL. 73, OCTOBER 12, 1976 335
by the people who exercise no power of judicial review, but by the Supreme Court.—Whether, therefore, that
constitutional provision has been followed or not is indisputably a proper subject of inquiry, not by the people
themselves—of course—who exercise no power of judicial review, but by the Supreme Court in whom the people
themselves vested that power, a power which includes the competence to determine whether the constitutional
norms for amendments have been observed or not. And, this inquiry must be done a priori not a posteriori, i.e.,
before the submission to and ratification by the people.
Same; Same; There are two periods contemplated in the constitutional life of the nation, i.e., period of
normalcy and period of transition.—There are, therefore, two periods contemplated in the constitutional life of the
nation, i.e., period of normalcy and period of transition. In times of normalcy, the amending process may be initiated
by the proposals of the (1) regular National Assembly upon a vote of three-fourths of all its members; or (2) by a
Constitutional Convention called by a vote of two-thirds of all the Members of the National Assembly. However the
calling of a
Constitutional Convention may be submitted to the electorate in an election voted upon by a majority vote of all the
members of the National Assembly. In times of transition, amendments may be proposed by a majority vote of all
the members of the interim National Assembly upon special call by the interim Prime Minister.
Same; Same; President will determine when interim National Assembly shall initially be convened.—This
Court in Aquino v. COMELEC had already settled that the incumbent President is vested with that prerogative of
discretion as to when he shall initially convene the interim National Assembly.
Same; Same; Philippines is in a crisis today and in such a situation governmental powers generally
concentrated in the President.—In general, the governmental powers in crisis government—the Philippines is a
crisis government today—are more or less concentrated in the President. According to Rossiter, “(t)he concentration
of government power in a democracy faced by an emergency is a corrective to the crisis inefficiencies inherent in
the doctrine of the separation of powers. x x x There are moments in the life of any government when all powers
must work together in unanimity of purpose and action, even if this means the temporary union of executive,
legislative, and judicial power in the hands of one man. The more complete the separation of powers in a
constitutional system, the more difficult and yet the more necessary will be their fusion in time of crisis. x x x The
power of the state in crisis must not only be concentrated and expanded; it must also be freed from the normal
system of constitutional and legal limitations.” x x x The
336
rationalebehind such broad emergency powers of the Executive is the release of the government from the “the
paralysis of constitutional restraints” so that the crisis may be ended and normal times restored.
Same; Same; Presidential exercise of legislative powers a valid act in times of martial law.—The presidential
exercise of legislative powers in times of martial law is now a conceded valid act. That sun clear authority of the
President is saddled on Section 3 (pars. 1 and 2) of the Transitory Provisions.
Same; Same; It is within constitutional and legal bounds for the President to assume the constituent powers of
the interim National Assembly.—Would it then be within the bounds of the Constitution and of law for the President
to assume that constituent power of the interim Assembly vis-a-vis his assumption of that body’s legislative
functions? The answer is yes. If the President has been legitimately discharging the legislative functions of the
interimAssembly, there is no reason why he cannot validly discharge the function of that Assembly to propose
amendments to the Constitution, which is but adjunct, although peculiar, to
its gross legislative power. This, of course, is not to say that the President has converted his office into a constituent
assembly of that nature normally constituted by the legislature. Rather, with the interimNational Assembly not
convened and only the Presidency and the Supreme Court in operation, the urges of absolute necessity render it
imperative upon the President to act as agent for and in behalf of the people to propose amendments to the
Constitution. x x x The President’s action is not a unilateral move. As early as the referendums of January 1973 and
February 1975, the people had already rejected the calling of the interim National Assembly.
Same; Same; In the Philippines sovereignty resides in the people.—In the Philippines, a republican and unitary
state, sovereignty “resides in the people and all government authority emanates from them.” x x x This is the
concept of popular sovereignty. It means that the constitutional legislator, namely, the people, in sovereign. In
consequence, the people may thus write into the Constitution their convictions on any subject they choose in the
absence of express constitutional prohibition.
Same; Same; The October 16, 1976 referendum-plebiscite is a resounding call to the people to exercise their
sovereign power as constitutional legislator.—The October 16 referendum-plebiscite is a resounding call to the
people to exercise their sovereign power as constitutional legislator. The proposed amendments, as earlier
337
VOL. 73, OCTOBER 12, 1976 337
discussed, proceed not from the thinking of a single man. Rather, they are the collated thoughts of the sovereign will
reduced only into enabling forms by the authority who can presently exercise the powers of government. In equal
vein, the submission of those proposed amendments and the question of martial law in a referendum-plebiscite
expresses but the option of the people themselves implemented only by the authority of the President. Indeed, it may
well be said that the amending process is a sovereign act, although the authority to initiate the same and the
procedure to be followed reside somehow in a particular body.
Same; Same; Fact that the people are simultaneously asked to answer a referendum and a plebiscite question
does not infirm the referendum- plebiscite.—The fact that the voting populace are simultaneously asked to answer
the referendum question and the plebiscite question does not infirm the referendum-plebiscite. There is nothing
objectional in consulting the people on a given issue, which is of current one and submitting to them for ratification
of proposed constitutional amendments.
Same; Same; Plebiscite; Referendum; “Plebiscite” and “Referendum” distinguished.—A “referendum” is
merely consultative in character. It is simply a means of assessing public reaction to the given issues submitted to
the people for their consideration, the calling of which is derived from or within the totality of the executive power
of the President. It is participated
on by all citizens from the age of 15, regardless of whether or not they are illiterates, feeble-minded, or ex-convicts.
A “plebiscite,” on the other hand, involves the constituent act of those “citizens of the Philippines not otherwise
disqualified by law, who are eighteen years of age or over, and who shall have resided in the Philippines for at least
one year and in the place wherein they propose to vote for at least six months preceding the election.” Literacy,
property, or any other substantive requirement is not imposed.It is generally associated with the amending process of
the Constitution, more particularly, the ratification aspect.
Same; Same; Martial Law; Martial law does not stultify freedom of dissent.—There appears to be no valid
basis for the claim that the regime of martial law stultifies in the main the freedom of dissent. That speaks of a
bygone fear. The martial law regime which, in the observation of Justice Fernando, “is impressed with a mild
character” recorded no State imposition for a muffled voice. To be sure, there are restraints of the individual liberty,
but on certain grounds no total suppression of that liberty is aimed at. The machinery for the referendum-plebiscite
on October 16 recognizes all the embracing
338
freedoms of expression and assembly. The President himself had announced that he would not countenance any
suppression of dissenting views on the issues, as he is not interested in winning a “yes” or “no” vote, but on the
genuine sentiment of the people on the issues at hand. Thus, the dissenters soon found their way to the public
forums, voicing out loud and clear their adverse views on the proposed amendments and even on the valid
ratification of the 1973 Constitution, which is already a settled matter.
Same; Same; The time for deliberation of the referendumplebiscite questions, a period of three weeks, is not
too short.—The period from September 21 to October 16, or a period of 3 weeks, is not too short for free debates or
discussions on the referendum-plebiscite issues. The questions are not new. They are the issues of the day. The
people have been living with them since the proclamation of martial law four years ago. The referendums of 1973
and 1975 carried the same issue of martial law.
Same; Same; Constituent body may fix the time when the people may act in a plebiscite.—The constituent
body or in the instant cases, the President, may fix the time within which the people may act. This is because, first,
proposal and ratification are not treated as unrelated act, x x x; second, it is only when there is deemed to be a
necessity therefor that amendments are to be proposed, the reasonable implication being that when proposed: they
are to be considered and disposed of presently; and third, ratification is but the expression of the approbation of the
people, hence, it must be done contemporaneously.
CASTRO, C.J., concurring:
Same; Amendments; Absence of constitutional provision or provisions on modes in accordance with which
formal changes in fundamental law may be effected during first stage of transition period; Stages in transition
period.—During the present transition period of our political development, no express provision is extant in the
Constitution regarding the agency or agent by whom and the procedure by which amendments thereto may be
proposed and ratified—a fact overlooked by those who challenge the validity of the presidential acts in the premises.
This is so because there are at least two distinctly perceptible stages in the transition from the old system of
government under the 1935 Constitution to the new one established by the 1973 Constitution. The first stage
comprises the period from the effectivity of the Constitution on January 17, 1973 to the time the interim National
Assembly is convened by the incumbent President
339
VOL. 73, OCTOBER 12, 1976 339
and the interim President and the interim Prime Minister are chosen (Article XVII, Sections 1 and 3[1]). The second
stage embraces the period from the date the interim National Assembly is convened to the date the Government
described in Articles VII to IX of the Constitution is inaugurated, following the election of the members of the
regular National Assembly (Article XVII, Section 1) and the election of the regular President and Prime Minister.
Same; Same; Amendments to Constitution may be effected during first stage of transition period by the people
in the manner then see fit and through the agency they choose; Reasons.—The power to amend the Constitution or
to propose amendments thereto “x x x is part of the inherent powers of the people—as the repository of sovereignty
in a republican state, such as ours—to make, and, hence, to amend their own Fundamental Law.” As such, it is
undoubtedly a power that only the sovereign people, either directly by themselves or through their chosen delegate,
can wield. Since it has been shown that the people, inadvertently or otherwise, have not delegated that power to any
instrumentality during the current stage of our hegira from crisis to normalcy, it follows of necessity that the same
remains with them for them to exercise in the manner they see fit and through the agency they choose. And, even if
it were conceded that—as it is reputedly the rule in some jurisdictions—a delegation of the constituent authority
amounts to a complete divestiture from the people of the power delegated which they may not thereafter unilaterally
reclaim from the delegate, there would be no violence done to such rule, assuming it to be applicable here, inasmuch
as that power, under the environmental circumstances adverted to, has not been delegated to anyone in the first
place. The constituent power during the first stage of the transition period belongs to and remains with the people,
and accordingly may be exercised by them—how and when—at their pleasure.
Same; Same; Submission to people of proposed amendments within the time frame allowed therefor a
sufficient and proper submission.—Little need be said of the claimed insufficiency and impropriety of the
submission of the proposed amendments for ratification from the standpoint of time. The thesis cannot be disputed
that a fair submission presupposes an adequate time lapse to enable the people to be sufficiently enlightened on the
merits or demerits of the amendments presented for their ratification or rejection. However, circumstances there are
which unmistakably demonstrate that the desideratum is met. Even if the proposals appear to have been formalized
only upon the promulgation of Presidential Decree No. 1033 on September 22, 1976, they are actually the
crystallization of sentiments that for so long have preoccupied the minds of the people and their authorized
representatives, from the
340
very lowest level of the political hierarchy. Hence, unlike proposals emanating from the legislative body, the same
cannot but be said to have been mulled over, pondered upon, debated, discussed and sufficiently understood by the
great masses of the nation long before they ripened into formal proposals.
Fernando, J. (Concurring in the result and dissenting in part):
Constitutional law; Courts; The judiciary must survey things as they are in the light of what they must
become.—It is inappropriate to resolve the complex problems of a critical period without full awareness of the
consequences that flow from whatever decision is reached. Jural norms must be read in the context of social facts.
There is need therefore of adjusting inherited principles to new needs. For law, much more so constitutional law, is
simultaneously a reflection of and a force in the society that it controls. No quality then can be more desirable in
constitutional adjudication than that intellectual and imaginative insight which goes into the heart of the matter. The
judiciary must survey things as they are in the light of what they must become. It must inquire into the specific
problem posed not only in terms of the teaching of the past but also of the emerging political and legal theory,
especially so under a leadership notable for its innovative approach to social problems and the vigor of its
implementation. This on the one side.
Same; Same; Courts must also be conscious that the conclusion reached by it has support in the law that must
be applied.—It must equally be borne in mind though that this Court must ever be conscious of the risk inherent in
its being considered as a mere subservient instrument of government policy, however admittedly salutary or
desirable. There is still the need to demonstrate that the conclusion reached by it in cases appropriate for its
determination has support in the law that must be applied.
To my mind that was the norm followed, the conclusion reached being that the three petitions must be dismissed. I
am in agreement.
Same; Same; Martial law; I dissent from proposition that there is concentration of powers in President during a
crisis government.—It is with regret however that based on my reading of past decisions both Philippine and
American, and more specifically my concurring opinion in Aquino v. Ponce Enrile, I must dissent from the
proposition set forth in the able and scholarly opinion of Justice Martin that there is concentration of power in the
President during a crisis government. Consequently, I cannot see my way clear to accepting the view that the
authority to propose amendments is not open to question. At the very least, serious doubts could be entertained on
the matter.
341
VOL. 73, OCTOBER 12, 1976 341
Same; Same; Same; President Marcos has maintained that Proclamation No. 1081 was based on the
Constitution and its reality could be passed upon by the Supreme Court. For me, that is quite reassuring.—It cannot
be said that the martial rule concept of Rossiter, latitudinarian in scope, has been adopted, even on the assumption
that it can be reconciled with out the Constitution. What is undeniable is that President Marcos has repeatedly
maintained that Proclamation No. 1081 was precisely based on the Constitution and that the validity of acts taken
thereunder could be passed upon by the Supreme Court. For me, that is quite reassuring, persuaded as I am likewise
that the view of Rossiter is opposed to the fundamental concept of our polity, which puts a premium on freedom.
Same; Same; Same; Rossiter’s view, on concentration of powers on President during a crisis, now possesses
juristic significance, however, after the decision in Aquino vs. COMELEC.—Candor and accuracy compel the
admission that such a conclusion has to be qualified. For in the opinion of the Court in the aforecited Aquino v.
Commission on Election, penned by Justice Makasiar, the proposition was expressly affirmed “that as Commander-
in-Chief and enforcer or administrator of martial law, the incumbent President of the Philippines can promulgate
proclamations, orders and decrees during the period of Martial Law essential to the security and preservation of the
Republic, x x x as well as to meet the impact of a worldwide recession, inflation or economic crisis which presently
threatens all nations including highly developed countries. To that extent. Rossiter’s view, mainly relied upon, now
possesses juristic significance.
Same; Same; Same; What for me gives cause for concern is that the opinion of the Court which introduced an
alien element in the limited concept of martial law would be allowed further incursion.—What, for me at least, gives
cause for concern is that with the opinion of the Court this intrusion of what I would consider an alien element in the
limited concept of martial law as set forth in the Constitution would be allowed further incursion into the corpus of
the law with the extensive citation from the last
chapter of his work, the main theme of which is “concentration of governmental power in a democracy (as) a
corrective to the crisis inefficiencies inherent in the doctrine of separation of powers.” It is to the credit of the late
Professor Rossiter as an objective scholar that in very same last chapter, just three pages later, he touched explicitly
on the undesirable aspect of a constitutional dictatorship.
Same; Same; Same; Although Considerable progress has been achieved under martial rule, dangers posed by
martial rule prevents
342
concurrence from Rossiter concept of power concentration.—It is by virtue of such considerations (“The
reinstitution of any of these features is a perilous matter, a step to be taken only when the dangers to a free state will
be greater if the dictatorial institution is not adopted”—Rossiter) that I find myself unable to share the view of those
of my brethren who would accord recognition to the Rossiter concept of concentration of governmental power in the
Executive during periods of crisis. This is not to lose sight of the undeniable fact that in this country through the
zeal, vigor, and energy lavished on projects conducive to the general welfare, considerable progress has been
achieved under martial rule. A fair summary may be found in a recent address of the First Lady before the delegates
to the 1976 International Monetary Fund-World Bank Joint Annual Meeting: “The wonder is that so much as been
done in so brief a time. Since September 1972, when President Marcos established the crisis government, peace and
order have been restored in a country once avoided as one of most unsafe in the world. We have liberated millions
of Filipino farmers from the bondage of tenancy, in the most vigorous and extensive implementation of agrarian
reform.” x x x The very idea of a crisis, however, signifies a transitory, certainly not a permanent, state of things.
President Marcos accordingly has not been hesitant in giving utterance to his conviction that full implementation of
the modified parliamentary system under the present Constitution should not be further delayed. The full restoration
of civilian rule can thus be expected.
Same; Same; I find myself unable to join readily in the majority’s conviction (that since the interim Assembly
is not likely to be convened, the President possesses the power to propose amendments to the Constitution). —The
basic issue posed concerns the boundaries of the power of the President during this period of martial law, more
precisely whether it covers proposing amendments to the Constitution. There is the further qualification if the stand
of respondents be taken into account that the interim National Assembly has not been convened and is not likely to
be called into session in deference to the wishes of the people as expressed in three previous referenda. It is the
ruling of the majority that the answer be in the affirmative such authority being well within the area of presidential
competence. Again I find myself unable to join readily in that conviction. It
does seem to me that the metes and bounds of the executive domain, while still recognizable, do appear blurred, x x
x For me, the stage of certitude has not been reached. I cannot simply ignore the vigorous plea of petitioners that
there is a constitutional deficiency consisting in the absence of any constituent power on the part of the President,
the express provision of the Constitution conferring it on the interim National Assembly. The
343
VOL. 73, OCTOBER 12, 1976 343
learned advocacy reflected in the pleadings as well as the oral discourse of Solicitor General Estelito P. Mendoza
failed to erase the grave doubts in my mind that the Aquino Doctrine as to the possession of legislative competence
by the President during this periods of transition with the interimlawmaking body not called into session be thus
expanded. The majority of my brethren took that step, I am not prepared to go that far. I will explain why.
Same; Same; Same; Recognition of power of President to propose constitutional amendments is best with
obstacles.—The way, for me, is beset with obstacles. In the first place, such an approach would lose sight of the
distinction between matters legislative and constituent. That is implicit in the treatise on the 1935 Constitution by
Justices Malcolm and Laurel. x x x Dean Sinco, a well-known authority on the subject, was quite explicit. Thus: “If
there had been no express provision in the Constitution granting Congress the power to propose amendments it
would be out side its authority to assume that power x x x”
Same; Same; Same; The President’s power to propose constitutional amendment cannot be implied during this
transition stage as solely the interim National Assembly is mentioned.—Nor is this all. In the main opinion of
Justice Makasiar as well as that of the then Justice, now Chief Justice Castro, support for the ruling that the
President cannot be deemed as devoid of legislative power during this transition stage is supplied by implications
from explicit constitutional provisions. That is not the case with the power to propose amendments. It is solely the
interimNational Assembly that is mentioned. That is the barrier that for me is well-nigh insurmountable.
Same; Same; Same; What would justify step taken by the President is the necessity that unless such authority
be recognized, there may be paralyzation of governmental activities. While not squarely applicable, such approach
has a persuasive quality, as far as power to propose amendments is concerned.—If I limit myself to entertaining
doubts rather than registering a dissent on this point, it is solely because of the consideration, possessed of weight
and significance, that there may be indeed in this far- from-quiescent and static period a need for amendments. I do
not feel confident therefore that a negative vote on my part would be warranted. What would justify the step taken
by the President, even if no complete
acceptance be accorded to the view that he was a mere conduit of the barangays on this matter, is that as noted in
both qualified concurrences by Justices Teehankee and Muñoz Palma in Aquino, as far as the legislative and
appropriation powers are concerned, is the necessity
344
that unless such authority be recognized, there may be paralyzation of governmental activities. While not squarely
applicable, such an approach has, to my mind, a persuasive quality as far as the power to propose amendments is
concerned. Thus, I would confine myself to the expression of serious doubts on the question rather than a dissent.
Same; Same; Same; Judicial review goes no further than to checking infractions of the fundamental law.—The
constitutional issue posed as thus viewed leaves me free to concur in the result that the petitions be dismissed. That
is to accord respect to the principle that judicial review goes no further than to checking clear infractions of the
fundamental law, except in the field of human rights where a much greater vigilance is required. That is to make of
the Constitution a pathway to rather than a barrier against a desirable objective.
Same; Same; Same; Prohibition; There is still discretion that may be exercised, prohibition being an equitable
remedy. There are, for me, potent considerations against acceding to the plea.—With the illumination thus supplied,
it does not necessarily follow that even a dissent on my part would necessarily compel that I vote for the relief
prayed for. Certainly this is not to belittle in any way the action taken by petitioners in filing these suits. That, for
me, is commendable. It attests to their belief in the rule of law. Even if their contention as to lack of presidential
power be accepted in their entirety, however, there is still discretion that may be exercised on the matter, prohibition
being an equitable remedy. There are, for me, potent considerations that argue against acceding to the plea.
Same; Same; Same; Petitioners’ plea is fraught with pernicious consequences: prospect of interim Assembly
being convened is dim; of greater weight is pronouncement of the President that the plebiscite is intended only to
solve an anomaly of a country devoid of a legislative body and to provide machinery to hasten end of martial law.—
With the prospect of the interim National Assembly being convened being dim, if not non- existent, if only because
of the result in three previous referenda, there would be, no constitutional agency other than the Executive, who
could propose amendments, which, as noted, may urgently press for adoption. Of even greater weight, to my mind,
is the pronouncement by the President that this plebiscite is intended not only to solve a constitutional anomaly with
the country devoid of a legislative body but also to provide the machinery by which the termination of martial law
could be hastened That is a consummation devotedly to be wished. That does militate strongly against
the stand of petitioners. The obstruction they would pose may be fraught with pernicious consequences.
Same; Same; Same; Sovereignty resides in the people. The
345
VOL. 73, OCTOBER 12, 1976 345
destiny of the country lies in their keeping.—It may not be amiss to refer anew to what I deem the cardinal character
of the jural postulate explicitly affirmed in both the 1935 and the present Constitutions that sovereignty resides in
the people. So I made clear in Tolentino v. Commission on Elections and thereafter in my dissent in Javellana v. The
Executive Secretary and my concurrence in Aquino v. Commission on Elections. The destiny of the country lies in
their keeping. The role of leadership is not to be minimized. It is crucial; it is of the essence. Nonetheless, it is their
will, of given expression in a manner sanctioned by law and with due care that there be no mistake in its appraisal,
that should be controlling. There is all the more reason then to encourage their participation in the power process.
That is to make the regime truly democratic.
Same; Same; Same; Amendments to the Constitution gives rise to a justiciable questions.—There is
reassurance in the thought that this Court has affirmed its commitment to the principle that the amending process
gives rise to a justiciable rather than to a political question. So it has been since the leading case of Gonzales v.
Commission on Elections.
Same; Same; Same; This Court has shunned the role of a mere interpreter and exercises creative power.—It can
be said with truth, therefore, that there has invariably been a judicial predisposition to activism rather than self-
restraint. The thinking all these years has been that it goes to the heart of constitutionalism. It may be said that this
Court has shunned the role of a mere interpreter and exercises creative power. It has to that extent participated in the
molding of policy. It has always recognized that in the large and undefined field of constitutional law, adjudication
partakes of the quality of statecraft. The assumption has been that just because it cannot by itself guarantee the
formation, much less the perpetuation of democratic values or, realistically, it cannot prevail against the pressure of
political forces if they are bent in other directions, it does not follow that it should not contribute its thinking to the
extent that it can. It has been asked, it will continue to be asked, to decide momentous questions at each critical stage
of this nation’s life.
Same; Same; Same; Immortality does not inhere in judicial opinions.— There must be, however, this caveat.
Judicial activism gives rise to difficulties, in an era of transformation and change. A society in fiux calles for
dynamism in the law, which must be responsive to the social forces at work. It cannot remain unresponsive. It must
be sensitive to life. It must avoid the regidity of legal ideas. It must at all cost avoid the temptation of wallowing in
the wasteland of meaningless obstractions. It must face
stubborn reality. While it is has to have a feel for the complexities of times, there is the danger
346
that the Court may be swept too far and too fast in the surge of novel concepts. For the past is entitled to a hearing; it
cannot just be summarily ignored. x x x There must be awareness on the truth that a new juridical age born before its
appointed time may be the cause of unprecedented it avail that may not end at birth. It is by virtue of such
considerations that I did strive for a confluence of principle and practicality. I must confess that I did approach the
subject with some misgivings and certainly without any illusion of omniscience. I am comforted by the thought that
immortality does not inhere in judicial opinions.
Same; Same; Same; Popular sovereignty requires both freedom of its manifestation and accuracy in
ascertaining the people’s will.—Again, to reiterate one of my cherished convictions, I am encouraged by adherence
to the principle of popular sovereignty, which to be meaningful, however, requires both freedom in its manifestation
and accuracy in ascertaining the people’s will as thus expressed.
Same; Same; Same; It is only plebiscite proper, not referendum that is impressed with authoritative force.—It
is likewise commendable that a distinction is made between two aspects of the coming poll, the referendum, and the
plebiscite proper. It is only the latter that is impressed with an authoritative force. So the Constitution requires.
Same; Same; Same; Freedom of speech and assembly and constructive criticism should be welcomed.—Lastly,
there should be, x x x full respect for intellectual freedom embracing free speech and press, free assembly and free
association. There should be no thought of branding the opposition as the enemy and the expression of its views as
anathema. Dissent, it is fortunate: to note, has been encouraged. It has not been identified as disloyalty. Dissenters
should be encouraged to air their views. Constructive criticism is to be welcomed not so much because the
opposition has a right to be heard but because it may have something worth hearing. That is to ensure a ferment of
ideas, an interplay of knowledgeable minds. It must be clear though that it is not allowable to preach sedition under
a cloak of dissent, to advocate disorder in the name of protest. To speak in the traditional language of constitutional
law, the clear and present danger principle as a limitation on such freedoms must be observed.
TEEHANKEE, J., dissenting:
Constitutional law; Political question; Question as to constitutionality of Presidential Decree Nos. 991, 1031
and 1033 not a
347
VOL. 73, OCTOBER 12, 1976 347
political question; Reasons.—The question of whether the Legislative acting as a constituent assembly or the
Constitutional Convention called for the purpose, in proposing amendments to the people for ratification followed
the constitutional procedure and requirements on the amending process is perforce a justiciable question and does
not raise a political question of policy or wisdom of the proposed amendments, which if properly submitted, are
reserved for the people’s decision. The substantive question presented in the case at bar of whether the President
may legally exercise the constituent power vested in the interim National Assembly (which has not been granted to
his office) and propose constitutional amendments is preeminently a justiciable issue.
Same; Amendments; Amendments to Constitution may be effected during transition period only in accordance
with constitutional provision on amendments; Reasons.—Where the proposed amendments are violative of the
Constitutional mandate of the amending process not merely for being a “partial amendments” of a “temporary or
provisional character” but more so for not being proposed and approved by the department vested by the
Constitution with the constituent power to do so, and hence transgressing the substantive provision that it is only the
interim National Assembly, upon special call of the interim Prime Minister, by a majority vote of all its members
that may propose the amendments, the Court must declare the amendments proposals null and void. This is so
because the Constitution is a “superior paramount law, unchangeable by ordinary means” but only by the particular
mode and manner prescribed therein by the people. As Stressed by Cooley, “by the Constitution which they
establish, (the people) not only tie up the hands of their official agencies but their own hands as well; and neither the
officers of the State, nor the whole people as an aggregate body, are liberty to take action in opposition to this
fundamental law.”
Same; Same; Same; Presidential without constituent power to propose and approve amendments to the
Constitution to be submitted to the people for ratification in a plebiscite; Reasons.—The transcendental constituent
power to propose and approved amendments to the Constitution as well as set up the machinery and prescribe the
procedure for the ratification of his proposals has been withheld from the President (Prime Minister) as sole
repository of the Executive Power, presumably in view of the immense powers already vested in him by the
Constitution but just importantly, because by the very nature of the constituent power, such amendments proposal
have to be prepared, deliberated and matured by a deliberative assembly of representatives such as the interim
National Assembly and hence may not be antithetically entrusted to one man.
348
Same; Same; During transition period, interim National Assembly with constituent power to propose
amendments to Constitution; Reasons.— During the stage of transition the interim National Assembly alone
exercises the constituent power to propose amendments, upon special call therefor. This is reinforced by the fact that
section 15 of the Transitory Provisions does not grant to the interim National Assembly the same power granted to
the regular National Assembly of calling a constitutional convention, thus expressing the will of the Convention
(and presumably of the people upon ratification) that if ever the need to propose amendments arose during the
limited period of transition, the interim National Assembly alone would discharge the task and no constitutional
convention could be called for the purpose.
Same; Same; Submission to people of proposed amendments within the time frame allowed therefor not a
sufficient and proper submission; Reasons.—Aside from the inadequacy of the limited time given for the people’s
consideration of the proposed amendments, there can be no proper submission because the proposed amendments
are not in proper form and violate the cardinal rule of amendments of written Constitutions that the specific
provisions of the Constitution being repealed or amended as well as how the specific provisions as amended would
read, should be clearly stated in careful and measured terms. There can be no proper submission because the
vagueness and ambiguity of the proposals do not sufficiently inform the people of the amendments for conscientious
deliberation and intelligent consent or rejection.
BARREDO,J., concurring:
Constitutional law; Political question; Question as to constitutionality of Presidential Decree Nos. 991, 1031
and 1033 not a political question; Reasons.—The main question is not in reality one of jurisdiction, for there can be
no conceivable controversy, especially one involving a conflict as to the correct construction of the Constitution,
that is not contemplated to be within the judicial authority of the courts to hear and decide. The judicial power of the
courts being unlimited and unqualified, it extends over all situations that call for the ascertainment and protection of
the rights of any party allegedly violated, even when the alleged violator is the highest official of the land or the
government itself.
Same; Amendments; During transition period, President with authority to propose amendments to the
Constitution.—In the peculiar situation in which the government is today, it is not
349
VOL. 73, OCTOBER 12, 1976 349
incompatible with the Constitution for the President to propose the subject amendments for ratification by the people
in a formal plebiscite under the supervision of the Commission on Elections. On the contrary, in the absence of any
express prohibition in the letter of the Charter, the Presidential Decree in question is entirely consistent with the
spirit and the principles underlying the Constitution. The correctness of this conclusion should become even more
patent, when one considers the political developments that the people have brought about since the ratification of the
Constitution on January 17, 1973.
Same; Same; President with constituent power to propose amendments to the Constitution; Reasons.—It may
not be supposed that just because the officer or body designed by the constitutional convention to perform the
constituent function of formulating proposed amendments has been rendered inoperative by the people themselves,
the people have thereby foreclosed the possibility of amending the Constitution no matter how desirable or
necessary this might be. In this connection, by the very nature of the office of the Presidency in the prevailing
scheme of government we have—it being the only political department of the government in existence —it is
consistent with basic principles of constitutionalism to acknowledge the President’s authority to perform the
constituent function, there being no other entity or body lodged with the prerogative to exercise such function.
Same; Same; Transitory provision of Constitution regarding convening of interim National Assembly rendered
legally inoperative by political developments.—As a result of the political developments since January 17, 1973 the
transitory provision envisioning the convening of the interim National Assembly have been rendered legally
inoperative. There is no doubt that for the President to convoke the interim National Assembly as such would be to
disregard the will of the people—something no head of a democratic republican state like ours should do. The
reasons that motivated the people to enjoin the convening of the Assembly—the unusually larged and unmanageable
number of its member and the controversial morality of its automatic composition consisting of all the incumbent
elective national executive and legislative officials under the Old Constitution who would agree to join it and the
delegates themselves to the Convention who had voted in favor of the Transitory Provisions—apply not only to the
Assembly as an ordinary legislature but perhaps more to its being a constituent body. And to be more realistic, it is
but natural to conclude that since the people are against politicians in the old order having anything to do with the
formulation of national policies, there must be more reasons for them to frown on said politicians taking part in the
amendments of the fundamental law,
350
specially because the particular amendment herein involved calls for the abolition of the interim National Assembly
to which they belong and its substitution by the Batasang Pambansa.
Makasiar, J. (Concurring and dissenting)
Constitutional law; Political question; Since validity of proposed constitutional amendments is to be ultimately
decided by the people, same as political.—Since the validity or effectivity of the proposed amendments is to be
decided ultimately by the people in their sovereign capacity, the question is political as the term is defined in
Tañada, et al. vs. Cuenco, et al. (103 Phil. 1051), which is a bar to any judicial inquiry, for the reasons stated in Our
opinion in Javellana, et al. vs. Executive Secretary, et al. (L-36142), x x x. The procedure for amend is not
important. Ratification by the people is all that is indispensable to validate an amendment. Once ratified, the method
of making the proposal and the period for submission become irrelevant.
Same; Same; The contrary view negates the very essence of republican democracy.—The contrary view
negates the very essence of a republican democracy—that the people are sovereign—and renders meaningless the
emphatic declaration in the very first provision of Article II of the 1973 Constitution that the Philippines is a
republican state, sovereignty resides in the people and all government authority emanates from them. It is axiomatic
that sovereignty is illimitable. The representatives cannot dictate to the sovereign people. They may guide them; but
they cannot supplant their judgment. x x x. There are thousands upon thousands among the citizenry, who are not in
the public service, who are more learned and better skilled than many of their elected representatives.
Same; Same; Since the President can legislate as enforcer of martial rule, he can also exercise the power of the
interim National Assembly to propose amendments to the Constitution.—Moreover, We already ruled in Aquino, et
al. vs. Comelec, et al. (L-4004 Jan. 31, 1975; 62 SCRA 275, 298- 302) that the President as enforcer or administrator
of martial rule during the period of martial law can legislate; and that he has the discretion as to when to convene the
interim National Assembly depending on prevailing conditions of peace and order. In view of that fact that the
interim National Assembly has no been convoked in obedience to the desire of the people clearly expressed in the
1973 referenda, the President therefore remains the lone law-making authority while martial law subsists.
Consequently, he can also exercise the power of the interim National Assembly to proposed amendments to the New
Constitution.
351
VOL. 73, OCTOBER 12, 1976 351
Same; Same; If President can call a constitutional convention, a constituent power, he can likewise propose
amendments to the constitution.
—If, as conceded by petitioner Vicente Guzman (L-44684), a former delegate, to the 1971 Constitutional
Convention x x x, the President, during the period of martial law, can call a constitutional convention for the
purpose, admittedly a constituent power, it stands to reason that the President can likewise legally proposed
amendments to the fundamental law.
Antonio, J. (concurring)
Constitutional law; Political question; Political question refer to those which are decided by the people in their
sovereignty capacity.—At the threshold, it is necessary to clarify what is a “political question.” It must be noted that
this devices has been utilized by the judiciary “to avoid determining question it is ill-equipped to determine or that
could be settled in any event only with the effective support of the political branches.” x x x it (political question)
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 of executive branches of
government.
Same; Same; Absences of satisfactory criterion for judicial determination or appropriateness of attributing
finality to action of the political departments is a dominant consideration in determining when an issue is political.—
In determining whether an issue falls within the political question category, the absence of a satisfactory criterion for
a judicial determination or the appropriateness of attributing finality to the action of the political departments of
governments is a dominant consideration. This was explained by Justice Brennan in Baker v. Carr (369 U.S. 186,
217).
Same; Same; Since the people gave binding force and effect to the new Constitution, their objection against the
convening of the interim Assembly must be respected.—The action of the President in suspending the convening the
interim National Assembly has met the overwhelming approval of the people in subsequent referenda. Since it was
the action by the people that gave binding force and effect to the new Constitution, then it must be accepted as a
necessary consequence that their objection against the immediate convening of the interimNational Assembly must
be respected as a positive mandate of the sovereign.
Same; Same; The term “people” as sovereign is comprehensive in
352
its context.—In the Philippines, which is a unitary state, sovereign “resides in the people x x x.” The term “people”
as sovereign is comprehensive in its context. The people, as sovereign creator of all political reality, is not merely
the enfranchised citizens but the political unity of the people. It
connotes therefore, a people which exists not only in the urgent present but in the continuum of history.
Same; Same; Absent the interim National Assembly which can exercise constituent powers, either the people
should exercise that power themselves or through any other instrumentality.—Absent an interimNational Assembly
upon whom the people, through the Constitution, have delegated the authority to exercise constituent powers, it
follows from necessity that either the people should exercise that power themselves or through any other
instrumentality they may choose. For Law, like Nature, abhors a vacuum (nature vacuum abhorret).
Same; Same; Whether the President has authority to act for the people in submitting proposals to amend the
Constitution is essentially a political question.—The question then is whether the President has authority to act for
the people in submitting such proposals for ratification at the plebiscite of October 16. The political character of the
question is, therefore, particularly manifest, considering that ultimately it is the people who will decide whether the
President has such authority. It certainly involves a matter which is to be exercised by the people in their sovereign
capacity, hence, it is essentially political, not judicial.
Same; Same; Right of the people to regulate their own government and alter or abolish the Constitution must
be recognized, not limited by the Court.—This is but a recognition that the People of the Philippines have the
inherent, sole and exclusive right of regulating their own government, and of altering or abolishing their
Constitution, whenever it may be necessary to their safety or happiness. There appears to be no justification, under
the existing circumstances, for a Court to create by implication a limitation on the sovereign power of the people.
Same; Same; Basic premise of republicanism is that the ordinary citizen can be trusted to determine his
political destiny.—Indeed, the basic premise of republicanism is that the ordinary citizen, the common man can be
trusted to determine his political destiny. Therefore, it is time that the people should be accorded the fullest
opportunity to decide the laws that shall provide for their governance. For in the ultimate analysis, the success of the
national endeavor shall depend on the vision, discipline and firmness of the moral will of
353
VOL. 73, OCTOBER 12, 1976 353
every Filipino.
MUÑOZ PALMA, J., dissenting:
Constitutional law; Amendments; Amendments to constitution may be effected during transition period only in
accordance with constitutional provisions on amendments; Reasons.—The Filipino people, wanting to
ensure to themselves a democratic republican from of government, have promulgate a Constitution whereby the
power to govern themselves has been entrusted to and distributed among three branches of government; they have
also mandated in clear and unmistakable terms the methods by which provisions in their fundamental Charter may
be amended or revised. Having done so, the people are bound by these constitutional limitations. For while there is
no surrender or abdication of the people’s ultimate authority to amend, revise, or adopt a new Constitution, sound
reason demands that they keep themselves within the procedural bounds of the existing fundamental law. The right
of the people to amend or change their Constitution if and when the need arises is not to be denied, but we assert that
absent a revolutionary state or condition in the country, the change must be accomplished through the ordinary,
regular and legitimate processes provided for in the Constitution.
Same; Same; President without constituent power to propose amendments to the Constitution; Reasons.—
Legislative power is essentially different form constituent power; on does not encompass the other unless so
specified in the Charter, and the 1973 Constitution contains provisions in this regard. The state of necessity brought
about by the current political situation provides no source of power to propose amendments to the existing
Constitution. Must we “bend the Constitution to suit the law of the hour?” or cure its defects “by inflicting upon it a
wound which nothing can heal,” commit one assault after the other” until all respects for the fundamental law is lost
and the powers of government are just what those in authority please to call them?”
Concepcion, Jr., J.: (concurring)
Constitutional law; Political question; Political question defined.—The term “political question” x x x refers to
those questions which, under the constitution, are to be decided by the people in their sovereign capacity, or in
regard to which full discretionary authority has been delegated to the Legislature or executive branch of the
Government. It is concerned with the issues dependent upon the Wisdom, not legality, of a particular measure.
354
Same; Same; Issue of whether President may propose to the people amendments to Constitution is not a
political question as it involves determination of conflicting claims of authority.—Here, the question raised is
whether the President has authority to propose to the people amendments to the Constitution which the petitioners
claim is vested solely upon the National Assembly, the constitutional convention called for the purpose, and the
interim National Assembly. This is not a political question since it involves the determination of conflicting claims
of authority under the constitution.
Same; Same; The people’s authority to amend the Constitution cannot be gainsaid.—The authority to amend
the Constitution was removed form the interimNational Assembly and transferred to the seat of sovereignty itself.
Since the Constitution emanates from the people who are the repository of all political powers, their authority to
amend the Constitution through the means they have adopted, aside from those mentioned in the Constitution,
cannot be gainsaid.
Same; Same; Martial law; In proposing amendments to the Constitution, the President is not exercising his
martial law powers, he is merely acting to carry out the will of the people.—Not much reflection is also needed to
show that the President did not exercise his martial law legislative powers when he proposed amendments to the
Constitution. He was merely acting as an instrument to carry out the will of the people. Neither could he convene the
interim National Assembly, x x x without doing violence to the people’s will expressed overwhelmingly when they
decided against convening the interim assembly for at least seven years.
Same; Same; The period granted for people to consider the proposed constitutional amendments is reasonably
long enough to afford intelligent discussion.—The period granted to the people to consider the proposed
amendments is reasonably long and enough to afford intelligent discussion of the issues to be voted upon. PD 901
has required the barangays to hold assemblies or meetings to discuss and debate on the referendum questions, which
in fact they have been doing. Considering that the proposed amendments came from the representative of the people
themselves, the people must have already formed a decision by this time on what stand to take on the proposed
amendments come the day for the plebiscite.
MARTIN, J.:
The capital question raised in these prohibition suits with preliminary injunction relates to the power of
the incumbent
355
VOL. 73, OCTOBER 12, 1976 355

President of the Philippines to propose amendments to the present Constitution in the absence of the
interim National Assembly which has not been convened.
On September 2, 1976 President Ferdinand E. Marcos issued Presidential Decree No. 991 calling for a
national referendum on October 16, 1976 for the Citizens Assemblies (“barangays”) to resolved, among
other things, the issues of martial law, the interim assembly, its replacement, the powers of such
replacement, the period of its the President
http://www.central.com.ph/sfsreader/session/00000164a3a59b0889a9c9c3003600fb002c009e/t/?o=False
21/125
existence, the length of his present powers.
of 1
the period for the exercise by
Twenty days after or on September 22, 1976, the president issued another related decree, Presidential
Decree No. 1031, amending the previous Presidential Decree No. 991, by declaring the provisions of
Presidential Decree No. 229 providing for the manner of voting and canvass of votes in “barangays”
(Citizens Assemblies) applicable to the national referendum-plebiscite of October 16, 1976. Quite
relevantly, Presidential Decree No. 1031 repealed inter alia, Section 4, of is quoted Presidential Decree
No. in the footnote below.
991, 2
the full text of which (Section 4)
On the same date of September 22, 1976, the President issued Presidential Decree No. 1033, stating
the question to be submitted to the people in the referendum-plebiscite on October 16, 1976. The Decree
recites in its “whereas” clauses that the people’s continued opposition to the convening of the interim
National Assembly evinces their desire to have such amendment, providing for a new interim legislative
body, which will be submitted directly to the people in the referendum-plebiscite of October 16.
The question ask, to wit:
Do you want martial law to be continued? Whether or not you want martial law to be continued, do you
_______________
1
“(1) (2)
Sec. 3, PD 991, September 2, 1976.
2
"SEC. 4. Who shall participate.—Every Filipino citizen, literate or not, fifteen years of age or over who has resided in the
barangay for at least six months shall participate in the consultation in his barangay. Provided, however, That any person who
may not be able to participate in the consultations of his barangay may not do so in any barangay most convenient to him;
Provided, further, That no barangay member shall participate in more than one barangay consultation.
356

approve the following amendments to the Constitution? For the purpose of the second question, the referendum shall
have the effect of a plebiscite within the contemplation of Section 2 of Article XVI of the Constitution.
PROPOSED AMENDMENTS:
1.
There shall be, in lieu of the interim National Assembly, an interim Batasang Pambansa. Members of the interim
Batasang Pambansa which shall not be more than 120, unless otherwise provided by law, shall include the
incumbent President of the Philippines, representatives elected from the different regions of the nation, those who
shall not be less than eighteen years of age elected by their respective sectors, and those chosen by the incumbent
President from the members of the Cabinet. Regional representatives shall be apportioned among the regions in
accordance with the number of their respective inhabitants and on the basis of a uniform and progressive ratio while
the sectors shall
be determined by law. The number of representatives from each region or sector and the, manner of their election
shall be prescribed and regulated by law.
2.
The interim Batasang Pambansa shall have the same powers and its members shall have the same functions,
responsibilities, rights, privileges, and disqualifications as the interim National Assembly and the regular National
Assembly and the members thereof. However, it shall not exercise the power provided in Article VIII, Section 14(1)
of the Constitution. 3.
The incumbent President of the Philippines shall, within 30 days from the election and selection of the members,
convene the interim Batasang Pambansa and preside over its sessions until the Speaker shall have been elected. The
incumbent President of the Philippines shall be the Prime Minister and he shall continue to exercise all his powers
even after the interim Batasang Pambansa is organized and ready to discharge its functions and likewise he shall
continue to exercise his powers and prerogatives under the nineteen hundred and thirty five. Constitution and the
powers vested in the President and the Prime Minister under this Constitution.
4.
The President (Prime Minister) and his Cabinet shall exercise all the powers and functions, and discharge the
responsibilities of the regular President (Prime Minister) and his Cabinet, and shall be subject only to such
disqualifications as the President (Prime Minister) may prescribe. The President (Prime Minister) if he so desires
may appoint a Deputy Prime Minister or as many Deputy Prime Ministers as he may deem necessary. 5.
The incumbent President shall continue to exercise legislative powers until martial law shall have been lifted.
6.
Whenever in the judgment of the President (Prime Minister), there exists a grave emergency or a threat or
imminence thereof, or whenever the interim Batasang Pambansa or the regular National Assembly fails or is unable
to act adequately on any matter for any
357
VOL. 73, OCTOBER 12, 1976 357
reason that in his judgment requires immediate action, he may, in order to meet the exigency, issue the necessary
decrees, orders or letters of instructions, which shall form part of the law of the land.
7.
The barangays and sanggunians shall continue as presently constituted but their functions, powers, and composition
may be altered by law. Referenda conducted thru the barangays and under the supervision of the Commission on
Elections may be called at any time the government deems it necessary to ascertain the will of the people regarding
any important matter whether of national or local interest.
8.
9.
http://www.central.com.ph/sfsreader/session/00000164a3a59b0889a9c9c3003600fb002c009e/t/?o=False 24/125 All
provisions of this Constitution not inconsistent with any of these amendments shall continue in full force and effect.
These amendments shall take effect after the incumbent President shall have proclaimed that they have been ratified
by a majority of the votes cast in the referendum-plebiscite.”
The Commission on Elections was vested with the exclusive supervision and control of the October 1976
National Referendum-Plebiscite.
On September 27, 1976, PABLO C. SANIDAD and PABLITO V. SANIDAD, father and son,
commenced L-44640 for Prohibition with Preliminary Injunction seeking to enjoin the Commission on
Elections from holding and conducting the Referendum Plebiscite on October 16; to declare without force
and effect Presidential Decree Nos. 991 and 1033, insofar as they propose amendments to the
Constitution, as well as Presidential Decree No. 1031, insofar as it directs the Commission on Elections to
supervise, control, hold, and conduct the Referendum-Plebiscite scheduled on October 16, 1976.
Petitioners contend that under the 1935 and 1973 Constitutions there is no grant to the incumbent
President to exercise the constituent power to propose amendments to the new Constitution. As a
consequence, the Referendum-Plebiscite on October 16 has no constitutional or legal basis.
On October 5, 1976, the Solicitor General filed the comment for respondent Commission on Elections.
The Solicitor General principally maintains that petitioners have no standing to sue; the issue raised is
political in nature, beyond judicial cognizance of this Court; at this state of the transition period, only the
incumbent President has the authority to exercise constituent power; the referendum-plebiscite is a step
towards normalization.
On September 30, 1976, another action for Prohibition with Preliminary Injunction, docketed as L-
44684, was instituted by
358

VICENTE M. GUZMAN, a delegate to the 1971 Constitutional Convention, asserting that the power to
propose amendments to, or revision of the Constitution during the transition period is expressly conferred
on the Article XVII of the interim Constitution.
National 3
Assembly under Section 16,
Still another petition for Prohibition with Preliminary Injunction was filed on October 5, 1976 by
RAUL M. GONZALES, his son RAUL, JR., and ALFREDO SALAPANTAN, docketed as L-44714, to
restrain the implementation of Presidential Decrees relative to the forthcoming Referendum-Plebiscite of
October 16.
These last petitioners argue that even granting him legislative powers under Martial Law, the
incumbent President cannot act as a
constituent assembly to propose amendments to the Constitution; a referendum-plebiscite is untenable

under the Constitutions of 1935 and 1973; the submission of the proposed amendments in such a short
period of time for deliberation renders the plebiscite a nullity, to lift Martial Law, the President need not
consult the people via referendum; and allowing 15-year olds to vote would amount to an amendment of
the Constitution, which confines the right of suffrage to those citizens of the Philippines 18 years of age
and above.
We find the petitions in the three entitled cases to be devoid of merit.
I
Justiciability of question raised.
1. As a preliminary resolution, We rule that the petitioners in L- 44640 (Pablo C. Sanidad and Pablito V.
Sanidad) possess locus standi to challenge the constitutional premise of Presidential Decree Nos. 991,
1031, and 1033. It is now an ancient rule that the valid source of a statute—Presidential Decrees are of
such nature—may be contested by one who will sustain a direct injury as a result of its enforcement. At
the instance of taxpayers, laws providing for the disbursement of public funds may be enjoined, upon the
theory that the
_______________
3
“SEC. 15. The interim National Assembly, upon special call by theinterim Prime Minister, may, by a majority vote of all its
Members, propose amendments to this Constitution. Such amendments shall take effect when ratified in accordance with Article
Sixteen thereof.”
359
VOL. 73, OCTOBER 12, 1976 359

expenditure of public funds by an officer of the State for the purpose of such executing funds. 4
an unconstitutional act constitutes a misapplication of The breadth of Presidential Decree No. 991 carries
an appropriation of its of Eight purposes. Million of 5
Five Pesos Presidential Million to carry Decree Pesos out its for No. provisions.
the 1031 effective appropriates 6
The implementation interest the of sum the aforenamed petitioners as taxpayers in the lawful expenditure
of these amounts of public money sufficiently clothes them with that personality to litigate the validity of
the Decrees appropriating said funds. open
25/125
Moreover, as regards taxpayer’s discretion to entertain the same or suits, not. 7
this For Court the enjoys that present case, We deem it sound to exercise that discretion affirmatively so
that the authority upon which the disputed Decrees are predicated may be inquired into.
2. The Solicitor General would consider the question at bar as a pure political one, lying outside the
domain of judicial review. We disagree. raises a
26/125
The judicial amending question.
process 8
This both as to proposal and ratification, is especially true in cases where the power of the Presidency to
initiate the amending process by proposals of amendments, a function normally exercised by the
legislature, is seriously doubted. Under the terms of the 1973 Constitution, the power to propose
amendments to the Constitution resides in the interim National Assembly during the period of transition
(Sec. 15, Transitory Provisions). After that period, and the regular National Assembly in its active
session, the power to propose amendments becomes ipso facto the prerogative of the regular National
Assembly (Sec. 1, pars. 1 and 2 of Art. XVI, 1973 Constitution). The normal course has not been
followed. Rather than calling the interim National Assembly to constitute itself into a constituent
assembly, the incumbent President undertook the proposal of amendments and submitted the
_______________
4
Pascual v. Secretary of Public Works, 110 Phil. 331 (1960).
5
Section 18.
6
Section 5.
7
Tan v. Macapagal, L-34161, Feb. 29, 1972, 43 SCRA 677, Fernando,J., ponente. See also Standing to Secure Judicial
Review, Jaffe, 74 Harvard Law Review 1265 (May 1961).
8
Concurring and dissenting opinion of Justice Fernando in the Plebiscite Cases (Planas v. Comelec, 49 SCRA 105). See
Martial Law and the New Society in the Philippines, Supreme Court, 1976, at 152.
360

proposed amendments thru Presidential Decree 1033 to the people in a Referendum-Plebiscite on October
16. Unavoidably, the regularity of the procedure for amendments, written in lambent words in the very
Constitution sought to be amended, raises a contestable issue. The implementing Presidential Decree Nos.
991, 1031, and 1033, which commonly purport to have the force and effect of legislation are assailed as
invalid, thus the issue of the validity of said Decrees is plainly a justiciable one, within the competence of
this Court to pass upon. Section 2 (2), Article X of the new Constitution provides: “All cases involving
the constitutionality of a treaty, executive agreement, or law shall be heard and decided by the Supreme
Court en banc, and no treaty, executive agreement, or law may be declared unconstitutional without the
concurrence of at least ten Members. * * *.” The Supreme Court only of treaties and statutes, has the last
word in but also of the Constitution the construction itself. 9
not The amending, like all other powers organized in the Constitution, is in
form a delegated and hence a limited power, so that the Supreme Court is vested with that authority to
determine whether that power has been discharged within its limits.
Political questions are neatly associated with the wisdom, not the legality of a particular act. Where the
vortexof the controversy refers to the legality or validity of the contested act, that matter is definitely
justiciable or non-political. What is in the heels of the Court is not the wisdom of the act of the incumbent
President in proposing amendments to the Constitution, but his constitutional authority to perform such
act or to assume the power of a constituent assembly. Whether the amending process confers on the
President that power to propose amendments is therefore a downright justiciable question. Should the
contrary be found, the actuation of the President would merely be a brutum fulmen. If the Constitution
provides how it may be amended, the judiciary as the interpreter of that authority Constitution, assumed
can was declare valid or whether not.
10
the procedure followed or the

We cannot accept the view of the Solicitor General, in
________________
9
Orfield, Amending the Federal Constitution, 111.
10
Separate Opinion of Justice Concepcion in the Ratification Cases (Javellana v. the Executive Secretary, 50 SCRA 30),
Martial Law and the New Society in the Philippines, 1976, Supreme Court, 210-224, quoting Tañada v. Cuenco, 103 Phil. 1051.
361
VOL. 73, OCTOBER 12, 1976 361

pursuing his theory of non-justiciability, that the question of the President’s authority to propose
amendments and the regularity of the procedure adopted for submission of the proposals to the people
ultimately lie in the judgment of the latter. A clear Descartes fallacy of vicious circle. Is it not that the
people themselves, by their sovereign act, provided for the authority and procedure for the amending
process when they ratified the present Constitution in 1973? Whether, therefore, that constitutional
provision has been followed or not is indisputably a proper subject of inquiry, not by the people
themselves—of course—who exercise no power of judicial review, but by the Supreme Court in whom
the people themselves vested that power, a power which includes the competence to determine whether
the constitutional norms for amendments have been observed or not. And, this inquiry must be done a
priori not a posteriori, i.e., before the submission to and ratification by the people.
Indeed, the precedents evolved by the Court on prior constitutional cases underline the preference of
the Court’s majority to treat such issue of Presidential role in the amending process as
http://www.central.com.ph/sfsreader/session/00000164a3a59b0889a9c9c3003600fb002c009e/t/?o=False 11
27/125
one of non-political impression. In the Plebiscite Cases,

11
the contention of the Solicitor General

that the issue on the legality of Presidential Decree No. 73 “submitting to the Filipino people (on January
15, 1973) for ratification or rejection the Constitution of the Republic of the Philippines proposed by the
1971 Constitutional Convention and appropriating funds therefor, “is a political one, was rejected and the
Court unanimously considered the justiciable in nature. Subsequently, in the Ratification issue Cases
as 12
involving the issue of whether or not the validity of Presidential Proclamation No. 1102, “announcing the
Ratification by the Filipino people of the Constitution proposed by the 1971 Constitutional Convention,”
partakes of the nature of a political question, the affirmative stand of the Solicitor General was dismissed,
the Court ruled that the question raised is justiciable. Chief Justice Concepcion, expressing the majority
view, said, “(T)hus, in the aforementioned plebiscite cases, We rejected the theory of the respondents
therein that the question whether Presidential Decree No. 73 calling a plebiscite to be held on January 15,
1973,
_______________
11
See Martial Law and the New Society in the Philippines, Supreme Court, 1976, at 121.
12
Idem, at 210.
362

for the ratification or rejection of the proposed new Constitution, was valid or not, was not a proper
subject of judicial inquiry because, they claimed, it partook of a political nature, and We unanimously
declared that the issue was a justiciable one. With identical unanimity. We overruled the respondents
contention in the 1971 habeas corpus cases, questioning Our authority to determine the constitutional
sufficiency of the factual bases of the Presidential proclamation suspending the privilege of the writ of
habeas corpus on August 21, 1971, despite the opposite view taken by this Court in Barcelon vs. Baker
and Montenegro vs. Castañeda, insofar as it adhered to the former case, which view We, accordingly,
abandoned and refused to apply. For the same reason, We did not apply and expressly political-question
modified, theory in Gonzales adopted in vs. Mabanag Commission vs. Lopez on Elections, Vito”
13
The the
return to Barcelona vs. Baker and Mabanag vs. Lopez Vito, urged by the Solicitor General, was decisively
refused by the Court. Chief Justice Concepcion continued: “The reasons adduced in support thereof are,
however, substantially the same as those given in support of the political question theory advanced in said
habeas corpus and plebiscite cases, which were carefully considered by this Court and found by it to be
legally unsound and constitutionally
untenable. As a consequence. Our decision in the aforementioned habeas corpus cases partakes of the
nature and effect of a stare decisis which gained added weight by its virtual reiteration.”
II
The amending process as laid out in the new Constitution
_______________
13
The view of the Chief justice was shared by Justices Makalintal (later Chief Justice), Zaldivar, Castro (present Chief
Justice), Fernando, and Teehankee. Justice Barredo qualified his vote, stating that “in as much as it is claimed that there has been
approval by the people, the Court may inquire into the question of whether or not there has actually been such an approval, and,
in the affirmative, the Court should keep its hands-off out of respect to the people’s will, but, in the negative, the Court may
determine from both factual and legal angles whether or not Article XV of the 1935 Constitution has been complied with.”
Justices Makasiar, Antonio and Esguerra hold that the issue is political and “beyond the ambit of judicial inquiry.”
363
VOL. 73, OCTOBER 12, 1976 363

1.Article XVI of the 1973 Constitution on Amendments ordains:
“SECTION 1. (1.) Any amendment to, or revision of, this Constitution may be proposed by the National Assembly
upon a vote of three-fourths of all its Members, or by a constitutional convention.
(2) The National Assembly may, by a vote of two-thirds of all its Members, call a constitutional convention or,
by a majority vote of all its Members, submit the question of calling such a convention to the electorate in an
election.
SECTION 2. Any amendment to, or revision of, this Constitution shall be valid when ratified by a majority of the
votes cast in a plebiscite which shall be held not later than three months after the approval of such amendment or
revision.”
In the present period of transition, the interim National Assembly instituted in the Transitory Provisions is
conferred with that amending power. Section 15 of the Transitory Provisions reads:
“SECTION 15. The interim National Assembly, upon special call by the interim Prime Minister, may, by a majority
vote of all its Members, propose amendments to this Constitution. Such amendments shall take effect when ratified
in accordance with Article Sixteen hereof.”
There are, therefore, two periods contemplated in the constitutional life of the nation, i.e., period of
normalcy and period of transition. In times of normalcy, the amending process may be initiated by the
proposals of the (1) regular National Assembly upon a vote of three- fourths of all its members; or (2) by
a Constitutional Convention called by a vote of two-thirds of all the Members of the National Assembly.
However the calling of a Constitutional Convention may be submitted to the electorate in an election
voted upon by a majority vote of all the members of the National Assembly. In times of transition,
amendments may be proposed by a majority vote of all the Members of the interim National Assembly
upon special call by the 2. interim This Court Prime in Minister.
Aquino v. COMELEC,
14
had already settled that the incumbent President is vested

with that prerogative of discretion as to when he shall initially convene
_______________
14
62 SCRA 275, Referendum Case, Martial Law and the New Society in the Philippines, Supreme Court, 1976, at 1071.
364

the interim National Assembly. Speaking for the majority opinion in that case, Justice Makasiar said:
“The Constitutional Convention intended to leave to the President the determination of the time when he
shall initially convene the interim National Assembly, consistent with the prevailing conditions of peace
and order in the country.” Concurring, Justice Fernandez, himself a member of that Constitutional
Convention, revealed: “(W)hen the Delegates to the Constitutional Convention voted on the Transitory
Provisions, they were aware of the fact that under the same, the incumbent President was given the
discretion as to when he could convene the interim National Assembly; it was so stated plainly by the
sponsor, Delegate Yaneza; as ‘immediately’, a matter of fact, made by Delegate the proposal that it be
Pimentel (V), was rejected.”
convened
15
The President’s decision to defer the

convening of the interim National Assembly soon found support from the people themselves. In the
plebiscite of January 10-15, 1973, at which the ratification of the 1973 Constitution was submitted, the
people voted against the convening of the interim National Assembly. In the referendum of July 24, 1973,
the Citizens Assemblies (“bagangays”) reiterated their sovereign will to withhold the convening of the
interimNational Assembly. Again, in the referendum of February 27, 1975, the proposed question of
whether the interim National Assembly shall be initially convened was eliminated, because some of the
members of Congress and delegates of the Constitutional Convention, who were deemed automatically
members of the interim National Assembly, were against its inclusion since in that referendum of
January, 1973, the people had already resolved against it.
3. In sensu strictiore, when the legislative arm of the state undertakes the proposals of amendment to a
Constitution, that body is engaged not in in the the usual amending function process.
of lawmaking. 16 Rather,
It is not legislating when it is exercising a peculiar power bestowed upon it by the fundamental charter
itself. In the Philippines, that power is provided for in Article XVI of the 1973 Constitution (for the
_______________
15
Idem, at 1079-1081.
16
In the United States, all amendments to the Federal Constitution, except the Twenty-First Amendment, had been proposed
by the U.S. Congress, Modern Constitutional Law, Antieau, Vol. 2, 1969 ed., at 482.
365
VOL. 73, OCTOBER 12, 1976 365

regular National Assembly) or in Section 15 of the Transitory Provisions (for the interim National
Assembly). While ordinarily it is the business of the legislating body to legislate for the nation by virtue
of constitutional conferment, amending of the Constitution is not legislative in character. In political
science a distinction is made between constitutional content of an organic character and that of a
legislative of law.
17 proposed character. The distinction, however, Such being the amendment is a case, misnomer.
approval 18
is one of policy, not of the President of any The prerogative of the President to approve or disapprove
applies only to the ordinary cases of adoption legislation. of amendments The President to the has
Constitution.
nothing to 19
do with proposition or
III
Concentration of Powers in the President during crisis government.
1. In general, the governmental powers in crisis government—the Philippines concentrated is in a the
crisis President.
government 20
today—are more According to Rossiter, or less “(t)he concentration of government power in a democracy
faced by an emergency is a corrective to the crisis inefficiencies inherent in the doctrine of the separation
of powers. In most free states it has generally been regarded as imperative that the total power of the
government be parceled out among three mutually independent branches—executive, legislature, and
judiciary. It is believed to be distructive of
_______________
17
The Amending of the Federal Constitution by Orfield, 1942, 48-53; 103-105.
18
Black’s Constitutional Law, Hornkbook series, at 42.
19
Hollingsworth v. Virginia, 3 Dall. 378.
20
There are 3 types of crisis in the life of a democratic nation First, is war particularly a war to repel invasions, when a state
must convert its peacetime political and social order into a wartime fighting machine and overmatch the skill and efficiency of
the enemy. Second, is rebellion, when the authority of a constitutional government is resisted openly by a large numbers of its
citizens who are engaged in violent insurrection against the enforcement of its laws or are bent on capturing it illegally or even
destroying it altogether. Third is economic depression—a crisis greater than war. Rossiter, Constitutional Dictatorship, at 6.
366

constitutionalism if any one branch should exercise any two or more types of power, and certainly a total
disregard of the separation of powers is, as Madison wrote in the Federalist, No. 47, ‘the very definition
of tyranny.’ In normal times the separation of powers forms a distinct obstruction to arbitrary
governmental action. By this same token, in abnormal times it may form an insurmountable barrier to a
decisive emergency action in behalf of the state and its independent existence. There are moments in the
life of any government when all powers must work together in unanimity of purpose and action, even if
this means the temporary union of executive, legislative, and judicial power in the hands of one man. The
more complete the separation of powers in a constitutional system, the more difficult and yet the more
necessary will be their fusion in time of crisis. This is evident in a comparison of the crisis potentialities
of the cabinet and presidential systems of government. In the former the all-important harmony of
legislature and executive is taken for granted; in the latter it is neither guaranteed nor to be to
confidently expected. As a result, cabinet is more easily established and more trustworthy than
presidential dictatorship. The power of the state in crisis must not only be concentrated and expanded; it
must legal
32/125
also limitations.
be freed 21
John from Locke, the normal on the system other of constitutional hand, claims for and the executive in
its own right a broad discretion capable even of setting aside which the the legislative ordinary laws
power in had the not meeting provided.
of 22
special The rationale exigencies behind for
such broad emergency powers of the Executive is the release of the government from “the paralysis of
constitutional restraints” so that the crisis may be ended and normal times restored.
2. The presidential exercise of legislative powers in times of martial law is now a conceded valid act.
That sun clear authority of the Provisions, President thus:
is saddled 23
on Section 3 (pars. 1 and 2) of the Transitory
“The incumbent President of the Philippines shall initially convene the interim National Assembly and shall preside
over its
_______________
21 Constitutional Dictatorship by Clinton Rossiter, 288-290.
22 Corwin, The President Office and Powers, at 371.
23 See Separate Opinion of the Chief Justice (then Justice Castro in the Referendum Case
(Aquino v. Comelec), at p. 1084, Martial Law and the New Society in the Philippines, Supreme
Court, 1976.
367
VOL. 73, OCTOBER 12, 1976 367
sessions until the interimSpeaker shall have been elected. He shall continue to exercise his powers and prerogatives
under the nineteen hundred and thirty-five Constitution and the powers vested in the President and the Prime
Minister under this Constitution until he calls upon the interim National Assembly to elect the interim President and
the interim Prime Minister, who shall then exercise their respective powers vested by this Constitution. All
proclamations, orders, decrees, instructions, and acts promulgated, issued, or done by the incumbent President shall
be part of the law of the land, and shall remain valid, binding, and effective even after lifting of martial law or the
ratification of this Constitution, unless modified, revoked, or superseded by subsequent proclamations, orders,
decrees, instructions, or other acts of the incumbent President, or unless expressly and explicitly modified or
repealed by the regular National Assembly.”
“It is unthinkable,” said Justice Fernandez, a 1971 Constitutional Convention delegate, “that the
Constitutional Convention, while giving to the President the discretion when to call the interim National
Assembly to session, and knowing that it may not be convened soon, would create a vacuum in the
exercise of legislative powers. there would Otherwise, be paralyzation with no of one the to entire
exercise governmental the lawmaking machinery.”
powers, 24
Paraphrasing Rossiter, this is an extremely important factor in any constitutional dictatorship which
extends over a period of time. The separation of executive and legislature ordained in the Constitution
presents a distinct obstruction to efficient crisis government. The steady increase in executive power is
not too much a cause for worry as the steady increase in the magnitude and complexity of the problems
the President has been called upon by the Filipino people to solve in their behalf, which involve rebellion,
subversion, secession, recession, inflation, and economic crisis—a crisis greater than war. In short, while
conventional constitutional law just confines the President’s power as Commander-in-Chief to the
direction of the operation of the national forces, yet the facts of our political, social, and economic
disturbances had convincingly shown that President in meeting to take the emergency same, indefinite
measures.
power 25
should be attributed to the
_______________
24
Separate Opinion of Justice Fernandez in same case, at 1129 of Martial Law and the New Society in the Philippines:
25
See Corwin, The President Office and Powers, at 305.
368

IV
Authority of the incumbent President to propose amendments to the Constitution.
1. As earlier pointed out, the power to legislate is constitutionally consigned to the interim National
Assembly during the transition period. However, the initial convening of that Assembly is a matter fully
addressed to the judgment of the incumbent President. And, in the exercise of that judgment, the President
opted to defer convening of that body in utter recognition of the people’s preference. Likewise, in the
period of transition, the power to propose amendments to the Constitution lies in the interim National
Assembly upon special call by the President (Sec. 15 of the Transitory Provisions). Again, harking to the
dictates of the sovereign will, the President decided not to call the interim National Assembly. Would it
then be within the bounds of the Constitution and of law for the President to assume that constituent
power of the interim Assembly vis-a-vis his assumption of that body’s legislative functions? The answer
is yes. If the President has been legitimately discharging the legislative functions of the interim Assembly,
there is no reason why he cannot validly discharge the function of that Assembly to propose amendments
to the Constitution, which is but adjunct, although peculiar, to its gross legislative power. This, of course,
is not to say that the President has converted his office into a constituent assembly of that nature normally
constituted by the legislature. Rather, with the interim National Assembly not convened and only the
Presidency and the Supreme Court in operation, the urges of absolute necessity render it imperative upon
the President to act as agent for and in behalf of the people to propose amendments to the Constitution.
Parenthetically, by its very constitution, the Supreme Court possesses no capacity to propose amendments
without constitutional infractions. For the President to shy away from that actuality and decline to
undertake the amending process would leave the governmental machinery at a stalmate or create in the
powers of the State a destructive vacuum, thereby impeding the objective of a crisis government “to end
the crisis and restore normal times.” In these parlous times, that Presidential initiative to reduce into
concrete forms the constant voices of the people reigns supreme.
369
VOL. 73, OCTOBER 12, 1976 369

After all, constituent the President now, are
http://www.central.com.ph/sfsreader/session/00000164a3a59b0889a9c9c3003600fb002c009e/t/?o=False 35/125 assemblies mere
agents or of constitutional the people. 26
conventions, like
2. The President’s action is not a unilateral move. As early as the referendums of January 1973 and
February 1975, the people had already rejected the calling of the interim National Assembly. The Lupong
Tagapagpaganap of the Katipunan ng mga Sanggunian, thePambansang Katipunan ng mga Barangay, and
the Pambansang Katipunan ng mga Barangay, representing 42,000 barangays, about the same number of
Kabataang Barangay organizations, Sanggunians in 1,458 municipalities, 72 provinces, 3 sub-provinces,
and 60 cities had informed the President that the prevailing sentiment of the people is for the abolition of
the interim National Assembly. amendments Other to the issues Constitution.
concerned 27
the The lifting of martial law and national organizations of Sangguniang Bayan presently proposed to
settle the issues of martial law, the interim Assembly, its replacement, the period of its existence, of its
present the powers length of in the a referendum period for the to be exercise held on by October the
President
16.
28
The Batasang Bayan (legislative council) created under Presidential Decree 995 of September 10, 1976,
composed of 19 cabinet members, 9 officials with cabinet rank, 91 members of the Lupong
Tagapagpaganap (executive committee) of the Katipunan ng mga Sangguniang Bayan voted in session to
submit directly to the people in a amendments plebiscite on October to the Constitution, 16, the including
previously the issue quoted of martial proposed
law.
29
Similarly, the “barangays” and the “sanggunians” endorsed to the President the submission of the
proposed amendments to the people on October 16. All the foregoing led the President to initiate the
proposal of amendments to the Constitution and the subsequent issuance of Presidential Decree No. 1033
on September 22, 1976 submitting the questions (proposed amendments) to the people in the National
Referendum-Plebiscite on October 16.
V
The People as Sovereign.
1. Unlike in a federal state, the location of sovereignty in a
_______________
26
Orfield, Amending the Federal Constitution, at 55.
27
Daily Express, Sept. 27, 1976; Times Journal, Sept. 17, 1976.
28
Sunday Express, September 5, 1976.
29
Daily Express, September 23, 1976.
370

unitary state is easily seen. In the Philippines, a republican and unitary state, sovereignty authority
emanates from
36/125 “resides them. 30
in In the its people fourth and all government meaning, Savigny would treat “people” as “that particular
organized assembly of individuals power exists.”
in 31
which, This is according to the Constitution, the highest that the constitutional legislator,
the concept namely, of popular the people, sovereignty. is sovereign.
It means 32
In consequence, the people may thus write into the Constitution their convictions constitutional on
prohibition.
any subject 33
they This choose in the absence of express Constitution “is an experiment,
as is all because, life is an as experiment.”
Holmes said, 34
“The the
necessities of orderly government,” wrote Rottschaefer, “do not require that one generation should be
permitted to permanently fetter all self-limiting future generations.” decision of the A constitution people
when is they based, adopt therefore, it.
35
upon a
2. The October 16 referendum-plebiscite is a resounding call to the people to exercise their sovereign
power as constitutional legislator. The proposed amendments, as earlier discussed, proceed not from the
thinking of a single man. Rather, they are the collated thoughts of the sovereign will reduced only into
enabling forms by the authority who can presently exercise the powers of the government. In equal vein,
the submission of those proposed amendments and the question of martial law in a referendum- plebiscite
expresses but the option of the people themselves implemented only by the authority of the President.
Indeed, it may well be said that the amending process is a sovereign act, although the authority to initiate
the same and the procedure to be followed reside somehow in a particular body.
_______________
30
Section 1, Article II, 1973 Constitution.
31
See Orfield, Amending the Federal Constitution, 140-143. The first meaning includes all persons living within the state
during the whole time of the existence of the state; the second, the sum of all individuals as an organized group living within the
state at the same time; and the third, the organized group of individuals living the state with the exception of the government.
32
Friedrich, The Philosophy of Law in Historical Perspective, 1963, at 221.
33
Orfield, Amending the Federal Constitution, at 105.
34
Abrams v. United States, 250 U.S. 616, 630.
35
Op Cit., at 221.
371
VOL. 73, OCTOBER 12, 1976 371


VI
Referendum-Plebiscite not rendered nugatory by the participation of the 15-year olds.
1. October 16 is in parts a referendum and a plebiscite. The question —(1) Do you want martial law to be
continued?—is a referendum question, wherein the 15-year olds may participate. This was prompted by
the desire of the Government to reach the larger mass of the people so that their true pulse may be felt to
guide the President in pursuing his program for a New Order. For the succeeding question on the
proposed amendments, only those of voting age of 18 years may participate. This as contemplated in
Section 2, Article XVI of
37/125
is the the new plebiscite Constitution.
aspect, 36
On this second question, it would only be the votes of those 18 years old and above which will have valid
bearing on the results. The fact that the voting populace are simultaneously asked to answer the
referendum question and the plebiscite question does not infirm the referendumplebiscite. There is
nothing objectionable in consulting the people on a given issue, which is of current one and submitting to
them for ratification of proposed constitutional amendments. The fear of commingled votes (15-year olds
and 18-year olds above) is readily dispelled by the provision of two ballot boxes for every barangay
center, one containing the ballots of voters fifteen years of age and under eighteen years eighteen, of age
and and above.
another 37
The containing ballots in the the ballots ballot of box voters for voters fifteen years of age and under
eighteen shall be counted ahead of the ballots of voters eighteen years and above contained in another
ballot box. And, the results of the referendum-plebiscite shall contained be separately in each of the
prepared two boxes.
for 38
the age groupings, i.e., ballots
2. It is apt to distinguish here between a “referendum” and a “plebiscite.” A “referendum” is merely
consultative in character. It is simply a means of assessing public reaction to
_______________
36
“Any amendment to, or revision of, this Constitution shall be valid when ratified by a majority of the votes cast in a
plebiscite which shall be held not later than three months after the approval of such amendment or revision.”
37
See Sec. 9, PD No. 229.
38
Secs. 13 and 14, PD No. 229.
372

the given issues submitted to the people for their consideration, the calling of which executive power of
38/125 is the derived President.
from 39
It is or participated within the in totality by all citizens of the
from the illiterates, age feeble-minded, of fifteen, or regardless ex-convicts.
of whether 40
A “plebiscite,” or not they are on the other hand, involves the constituent act of those “citizens of the
Philippines not otherwise disqualified by law, who are eighteen years of age or over, and who shall have
resided in the Philippines for for at at least least six one months year and preceding in the place the
election.”
wherein they 41
Literacy, propose property, to vote
or any other substantive requirement is not imposed. It is generally associated with the amending process
of the Constitution, more particularly, the ratification aspect.
VII
Freedoms of expression and assembly not disturbed.
1. There appears to be no valid basis for the claim that the regime of martial law stultifies in main the
freedom to dissent. That speaks of a bygone fear. The martial law regime which, in the observation of
Justice Fernando, “is impressed with a mild character” recorded no State imposition for a muffled voice.
To be sure, there are restraints of the individual liberty, but on certain grounds no total suppression of that
liberty is aimed at. The machinery for the referendum- plebiscite on October 16 recognizes all the
embracing freedoms of expression and assembly. The President himself had announced that he would not
countenance any suppression of dissenting views on the but issues, on the genuine as he is sentiment not
interested of the in people winning on a the “yes” issues or “no” at hand.
vote, 42
Thus, the dissenters soon found their way to the public forums, voicing out loud and clear their adverse
views on the
_______________
39
Separate Opinion of Justice Palma in the Referendum Case (Aquino v. COMELEC), at 1135, Martial Law and the New
Society in the Philippines, 1976, Supreme Court.
40
Separate Opinion of Justices Makalintal and Castro in the Ratification Case (Javellana v. The Executive Secretary, 50
SCRA 30), at 292-293, Martial Law and the New Society in the Philippines.
41
Sec. 1, Article VI, 1973 Constitution.
42
See Daily Express, September 29, 1976.
373
VOL. 73, OCTOBER 12, 1976 373

proposed amendments Constitution, which is and already even a on settled the valid matter.
ratification 43
Even government of the 1973
employees have been held by the Civil Service Commission free to participate the referendum-plebiscite
in public discussion issues.
and 44
even campaign for their stand on
VIII
Time for deliberation is not short.
1. The period from September 21 to October 16 or a period of 3 weeks is not too short for free debates or
discussions on the referendum-plebiscite issues. The questions are not new. They are the issues of the
day. The people have been living with them since the proclamation of martial law four years ago. The
referendums of 1973 and 1975 carried the same issue of martial law. That notwithstanding, the contested
brief period for discussion is not without counterparts in previous plebiscites for constitutional
amendments. Justice Makasiar, in the Referendum Case, recalls: “Under the old Society, 15 days were
allotted for the publication in three consecutive issues of the Official Gazette of the women’s suffrage
amendment to the Constitution before the scheduled plebiscite on April 30, 1937 (Com. Act No. 34). The
constitutional amendment to append as ordinance the complicated Tydings- Kocialskowski was published
in only three consecutive issues of the Official Gazette for 10 days prior to the scheduled plebiscite (Com.
Act 492). For the 1940 Constitutional amendments providing for the bicameral Congress, the reelection
of the President and Vice- President, and the creation of the Commission on Elections, 20 days of
publication in three consecutive issues of the Official Gazette was fixed (Com. Act No. 517). And the
Parity Amendment, an involved constitutional amendment affecting the economy as well as the
independence of the Republic was publicized in three consecutive issues Act No. of 73).”
the Official 45
Gazette for 20 days prior to the plebiscite (Rep.
2. It is worthy to note that Article XVI of the Constitution makes no provision as to the specific date
when the plebiscite
_______________
43
See Times Journal, September 30, 1976.
44
Times Journal, October 2, 1976.
45
See Martial Law and the New Society, 1976, Supreme Court, at 1082-83.
374

shall be held, but simply states that it “shall be held not later than three Coleman months v. Miller,
after 46 the the approval United
of such amendment or revision.” In States Supreme court held that this matter of submission involves “an
appraisal of a great variety of
relevant conditions, political, social and economic,” which “are essentially political and not justiciable.”
The constituent body or in the instant cases, the President, may fix the time within which the people may
act. This is because, first,proposal and ratification are not treated as unrelated acts, but as succeeding steps
in a single endeavor, the natural inference being that they are not to be widely separated in time; second,it
is only when there is deemed to be a necessity therefor that amendments are to be proposed, the
reasonable implication being that when proposed, they are to be considered and disposed of presently, and
third, ratification is but the expression contemporaneously.
of the approbation 47
In the words of the of people, Jameson, hence, “(a)n it must alteration be done of the Constitution
proposed today has relation to the sentiment and the felt needs of today, and that, if not ratified early
while that sentiment may fairly be supposed to exist, it ought to be regarded as waived, and [proper not
body].”
again to 48
be voted upon, unless a second time proposed by
IN RESUME The three issues are:
1.
Is the Question of the constitutionality of Presidential Decrees Nos. 991, 1031 and 1033 political or
justiciable? 2.
During the present stage of the transition period, and under the environmental circumstances now
obtaining, does the President possess power to propose amendments to the Constitution as well as set up
the required machinery and prescribe the procedure for the ratification of his proposals by the people? 3.
Is the submission to the people of the proposed amendments within the time frame allowed therefor a
sufficient and proper submission?
______________
46
307 U.S. 433, see Cases in Constitutional Law, 3rd ed., Cushman and Cushman, 12-13.
47
Dillon v. Gloss, 256 U.S. 368.
48
Willoughby on the Constitution of the Untied States, Vol. 1, 595-96.
375
VOL. 73, OCTOBER 12, 1976 375

Upon the first issue, Chief Justice Fred Ruiz Castro and Associate Justices Enrique M. Fernando, Claudio
Teehankee, Antonio P. Barredo, Cecilia Muñoz Palma, Hermogenes Concepcion Jr. and Ruperto G.
Martin are of the view that the question posed is justiciable, while Associate Justices Felix V. Makasiar,
Felix Q. Antonio and Ramon C. Aquino hold the view that the question is political.
Upon the second issue, Chief Justice Castro and Associate Justices Barredo, Makasiar, Antonio,
Aquino, Concepcion Jr. and Martin voted in the affirmative, while Associate Justices Teehankee and
Muñoz Palma voted in the negative. Associate Justice Fernando, conformably to his concurring and
dissenting opinion in Aquino vs. Enrile (59 SCRA 183), specifically dissents from the proposition that
there is concentration of powers in the Executive during periods of crisis, thus raising serious doubts as to
the power of the President to propose amendments.
Upon the third issue, Chief Justice Castro and Associate Justices Barredo, Makasiar, Aquino,
Concepcion Jr. and Martin are of the view that there is a sufficient and proper submission of the proposed
amendments for ratification by the people. Associate Justices Barredo and Makasiar expressed the hope,
however, that the period of time may be extended. Associate Justices Fernando, Makasiar and Antonio are
of the view that the question is political and therefore beyond the competence and cognizance of this
Court. Associate Justice Fernando adheres to his concurrence in the opinion of Chief Justice Concepcion
in Gonzales vs. COMELEC (21 SCRA 774). Associate Justices Teehankee and Muñoz Palma hold that
prescinding from the President’s lack of authority to exercise the constituent power to propose the
amendments, etc., as above stated, there is no fair and proper submission with sufficient information and
time to assure intelligent consent or rejection under the standards set by this Court in the controlling cases
of Gonzales, supra, and Tolentino vs. COMELEC (41 SCRA 702).
Chief Justice Castro and Associate Justices Barredo, Makasiar, Antonio, Aquino, Concepcion Jr. and
Martin voted to dismiss the three petitions at bar. For reasons as expressed in his separate opinion,
Associate Justice Fernando concurs in the result. Associate Justices Teehankee and Muñoz Palma voted
to grant the petitions.
ACCORDINGLY, the vote being 8 to 2 to dismiss, the said petitions are hereby dismissed. This
decision is immediately
376

executory.
SO ORDERED.
Castro, C.J., states the reasons for his concurrence in a separate opinion.
Fernando, J., concurs in the result and, conformably to his opinion in Aquino v. Ponce Enrile (59
SCRA 183) dissents from the proposition that there is concentration of powers in the President, during
martial law.
Teehankee, J., files a dissenting opinion. Barredo, J.,concurs in a separate opinion. Makasiar, J., concurs
and dissents in a separate opinion.
Antonio J., concurs in a separate opinion. Muñoz Palma, J., dissents in a separate opinion. Aquino, J., in
the result. Concepcion, J., concurs in a separate opinion.
CONCURRING OPINION
CASTRO, C.J.:
From the challenge as formulated in the three petitions at bar and the grounds advanced by the Solicitor
General in opposition thereto, as well as the arguments adduced by the counsels of the parties at the
hearing had on October 7 and 8, 1976, three vital issues readily project themselves as the centers of
controversy, namely:
(1)
Is the question of the constitutionality of Presidential Decrees Nos. 991, 1031 and 1033 political or
justiciable? (2)
During the present stage of the transition period, and under the environmental circumstances now
obtaining, does the President, possess power to propose amendments to the Constitution as well as set up
the required machinery and prescribe the procedure for the ratification of his proposals by the people? (3)
Is the submission to the people of the proposed amendments within the time frame allowed therefor a
sufficient and proper submission?
I First Issue
377
VOL. 73, OCTOBER 12, 1976 377

The threshold question is not at all one of first impression. Specifically on the matter of proposals to
amend the Constitution, this Court, in Mabanag vs. Lopez Vito (78 Phil. 1), inceptively announced the
dictum that—
“Proposal to amend the Constitution is a highly political function performed by the Congress in its sovereign
legislative capacity and committed to its charge by the Constitution itself. The exercise of this power is even
independent of any intervention by the Chief Executive. If on grounds of expediency scrupulous attention of the
judiciary be needed to safeguard public interest, there is less reason for judicial inquiry into the validity of a
proposal than into that of a ratification.” In time, however, the validity of the said pronouncement was eroded. In the
assessment of the Court itself—
“The force of this precedent has been weakened, however, by Suanes vs. Chief Accountant of the Senate (81
Phil. 818), Avelino vs. Cuenco (L-2581,
March 4 and 14, 1949), Tañada vs. Cuenco (L-10520, February 28, 1957), and Macias vs. Commission on Elections
(L-18684, September 14, 1961).
xxxx
“In short, the issue whether or not a Resolution of Congress—acting as a constituent assembly—violates the
Constitution is essentially justiciable, not political, and, hence, subject to judicial review, and, to the extent that this
view may be inconsistent with the stand taken in Mabanag vs. Lopez Vito (supra), the latter should be deemed
modified accordingly. The Members of the Court are unanimous on this point.” (Gonzales vs. Commission on
Elections, et al., L-28196, November 9, 1967, 21 SCRA 774, 786-787).
The abandonment of the Mabanag vs. Lopez Vito doctrine appears to have been completed when, in
Javellana vs. Executive Secretary, et al. (L-36142, March 31, 1973, 50 SCRA 30), six members of the
Court concurred in the view that the question of whether the 1973 Constitution was ratified in accordance
with the provisions of Article XV (Amendments) of the 1935 Constitution is inherently and essentially
justiciable.
As elucidated therein, with extensive quotations from Tañada vs. Cuenco (103 Phil. 1051)—
“ ‘x x x the term ‘political question’ connotes, in legal parlance, what it means in ordinary parlance, namely, a
question of policy in matters concerning the government of a State, as a body politic. In other words, in the language
of Corpus Juris Secundum (supra), it refers to ‘those questions which, under the Constitution, are to be
378
decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been
delegated to the Legislature or executive branch of the government.’ It is concerned with issues dependent upon the
wisdom, not legality, of a particular measure.’ “Accordingly, when the grant of power is qualified, conditional or
subject to limitations, the issue on whether or not the prescribed qualifications or conditions have been met, or the
limitations respected, is justiciable or non-political, the crux of the problem being one of legality or validity of the
contested act, not its wisdom. Otherwise, said qualifications, conditions or limitations— particularly those
prescribed or imposed by the Constitution—would be set at naught.” (Javellana vs. Executive Secretary, supra).
So it is in the situation here presented. The basic issue is the constitutional validity of the presidential acts
of proposing amendments to the Constitution and of calling a referendumplebiscite for the ratification of
the proposals made. Evidently, the question does not concern itself with the wisdom of the exercise of the
authority claimed or of the specific amendments proposed. Instead the inquiry vel non is focused solely
on the
existence of the said power in the President—a question purely of legality determinable thru interpretation
and construction of the letter and spirit of the Constitution by the Court as the final arbiter in the
delineation of constitutional boundaries and the allocation of constitutional powers.
For the Court to shun cognizance of the challenge herein presented, especially in these parlous years,
would be to abdicate its constitutional powers, shirk its constitutional responsibility, and deny the people
their ultimate recourse for judicial determination.
I have thus no hesitancy in concluding that the question here presented is well within the periphery of
judicial inquiry.
II Second Issue
The main question stands on a different footing; it appears unprecedented both here and elsewhere. Its
solution, I believe, can be found and unraveled only by a critical assessment of the existing legal order in
the light of the prevailing political and factual milieu.
To be sure, there is an impressive array of consistent jurisprudence on the proposition that, normally or
under
379
VOL. 73, OCTOBER 12, 1976 379

normal conditions, a Constitution may be amended only in accord with the procedure set forth therein.
Hence, if there be any such prescription for the amendatory process—as invariable there is because one of
the essential parts of a Constitution is the so-called “constitution of sovereignty” which comprises the
provision or provisions on the modes in accordance with which formal changes in the fundamental law
may be effected—the same would ordinarily be the controlling criterion for the validity of the
amendments sought.
Unfortunately, however, during the present transition period of our political development, no express
provision is extant in the Constitution regarding the agency or agent by whom and the procedure by
which amendments thereto may be proposed and ratified—a fact overlooked by those who challenge the
validity of the presidential acts in the premises. This is so because there are at least two-distinctly
perceptible stages in the transition from the old system of government under the 1935 Constitution to the
new one established by the 1973 Constitution.
The first stage comprises the period from the effectivity of the Constitution on January 17, 1973 to the
time the Interim National Assembly is convened by the incumbent President and the interim President and
the interim Prime Minister are chosen (Article XVII, Sections 1 and 3[1]. The existence of this stage as an
obvious fact of the nation’s political life was recognized by the Court in Aquino vs. Commission on
Elections, et al. (L-40004, January 31, 1975, 62
SCRA 275), when it rejected the claim that, under the 1973 Constitution, the President was in duty bound
to convene the interim National Assembly soon after the Constitution took effect.
The second stage embraces the period from the date the interim National Assembly is convened to the
date the Government described in Articles VII to IX of the Constitution is inaugurated, following the
election of the members of the regular National Assembly (Article XVII, Section 1) and the election of
the regular President and Prime Minister. This is as it should be because it is recognized that the President
has been accorded the discretion to determine when he shall initially convene the interim National
Assembly, and his decision to defer the convocation thereof has found overwhelming support by the
sovereign people in two previous referenda, thereby giving reality to an interregnum between the
effectivity of the
380

Constitution and the initial convocation of the interim National Assembly, which interregnum, as
aforesaid, constitutes the first stage in the transition period.
Against this factual backdrop, it is readily discernible that neither of the two sets of provisions
embodied in the Constitution on the amendatory process applied during the said first stage. Thus, Section
15, Article XVII (Transitory Provisions) provides—
“Sec. 15. The interimNational Assembly, upon special call by theinterim Prime Minister, may, by a majority vote of
all its Members, propose amendments to this Constitution. Such amendments shall take effect when ratified in
accordance with Article Sixteen hereof.”
Patently, the reference to the “interim National Assembly” and the “interimPrime Minister” limits the
application thereof to the second stage of the transition period, i.e., after the interim National Assembly
shall have been convened and the interim Prime Minister shall have been chosen.
Upon the other hand, the provisions of Article XVI (Amendments), to wit—
“SECTION 1. (1) Any amendment to, or revision of, this Constitution may be proposed by the National Assembly
upon a vote of three-fourths of all its Members, or by a constitutional convention.
“(2) The National Assembly may, by a vote of two-thirds of all its Members, call a constitutional convention or,
by a majority vote of all its Members, submit the question of calling such a convention to the electorate in an
election.
“SEC. 2. Any amendment to, or revision of, this Constitution shall be valid when ratified by a majority of the
votes cast in a plebiscite which shall
be held not later than three months after the approval of such amendment or revision.”
unequivocally contemplate amendments after the regular Government shall have become fully operative,
referring as they do to the National Assembly which will come into being only at that time.
In the face of this constitutional hiatus, we are confronted with the dilemma whether amendments to
the Constitution may be effected during the aforesaid first stage and, if in the affirmative, by whom and in
what manner such amendments
381
VOL. 73, OCTOBER 12, 1976 381

may be proposed and ratified.
Susceptibility to change is one of the hallmarks of an ideal Constitution. Not being a mere declaration
of the traditions of a nation but more the embodiment of a people’s hopes and aspirations, its strictures are
not unalterable. They are, instead, dynamic precepts intended to keep in stride with and attuned to the
living social organism they seek to fashion and govern. If it is conceded that “the political or
philosophical aphorism of one generation is doubted by the next and entirely discarded by the third,” then
a Constitution must be able to adjust to the changing needs and demands of society so that the latter may
survive, progress and endure. On these verities, there can be no debate.
During the first stage of the transition period in which the Government is at present—which is
understandably the most critical —the need for change may be most pressing and imperative, and to
disavow the existence of the right to amend the Constitution would be sheer political heresy. Such view
would deny the people a mechanism for effecting peaceful change, and belie the organic conception of
the Constitution by depriving it of its means of growth. Such a result obviously could not have been
intended by the framers of the fundamental law.
It seems, however, that the happenstance that the first period would come to pass before the
convocation of the interim National Assembly was not anticipated, hence, the omission of an express
mandate to govern the said situation in so far as amendments are concerned. But such omission through
inadvertence should not, because it cannot, negate the sovereign power of the people to amend the
fundamental charter that governs their lives and their future and perhaps even the very survival of the
nation.
Upon the other hand, it is clear from the afore-quoted provisions on the amendatory process that the
intent was, instead, to provide a simpler and more expeditious mode of amending the Constitution during
the transition period. For, while under Article XVI thereof, proposals for amendment may be made
directly by the regular
National Assembly by a vote of at least three-fourths of all its members, under Section 15 of Article
XVII, a bare majority vote of all the members of the interim National Assembly would suffice for the
purpose. The relaxation and the disparity in the vote requirement are revealing. They can only signify a
recognition of the need to
382

facilitate the adoption of amendments during the second stage of the transition period so that the interim
National Assembly will be able, in a manner of speaking, to iron out the kinks in the new Constitution,
remove imperfections therein, and provide for changed or changing circumstances before the
establishment of the regular Government. In this context, Therefore it is inutile speculation to assume that
the Constitution was intended to render impotent or bar the effectuation of needful change at an even
more critical period— the first stage. With greater reason, therefore, must the right and power to amend
the Constitution during the first stage of the transition period be upheld, albeit within its express and
implied constraints.
Neither can it be successfully argued, in the same context and in the person posture, that the
Constitution may be amended during the said first stage only by convening the interim National
Assembly. That is to say and require that the said stage must first be brought to an end before any
amendment may be proposed and ratified. Settled jurisprudence does not square with such a proposition.
As aptly noted in Aquino vs. Commission on Elections, et al., supra, the framers of the Constitution set no
deadline for the conveying of the interim National Assembly because they could not have foreseen how
long the crises which impelled the proclamation and justify the continued state of martial law would last.
Indeed, the framers committed to the sound judgment of the President the determination of the time when
the interim National Assembly should be convoked. That judgment is not subject to judicial review, save
possibly to determine whether arbitrariness has infected such exercise; absent such a taint, the matter is
solely in the keeping of the President. To thus, contend that only by convening the interim National
Assembly may the Constitution be amended at this time would effectively override the judgment vested
in the President, even in default of any showing that in not convoking the interim National Assembly he
has acted arbitrarily or gravely abused his discretion. Furthermore, to sustain such a contention would not
only negate the mandate so resoundingly expressed by the people in two national referenda against the
immediate con-vening of the interim National Assembly, but as well deride their overwhelming approval
of the manner in which the President has exercised the legislative power to issue proclamations, orders,
decrees and instructions having the stature and force of
383
VOL. 73, OCTOBER 12, 1976 383

law.
Given the constitutional stalemate or impasse spawned by these supervening developments, the logical
query that compels itself for resolution is: By whom, then, may proposals for the amendment of the
Constitution be made and in what manner may said proposals be ratified by the people?
It is conventional wisdom that, conceptually, the constituent power is not to be confused with
legislative power in general because the prerogative to propose amendments to the Constitution is not in
any sense embraced within the ambit of ordinary law- making. Hence, there is much to recommend the
proposition that, in default of an express grant thereof, the legislature—traditionally the delegated
repository thereof—may not claim it under a general grant of legislative authority. In the same vein,
neither would it be altogether unassailable to say that because by constitutional tradition and express
allocation the constituent power under the Constitution is located in the law-making agency and at this
stage, of the transition period the law-making authority is firmly recognized as being lodged in the
President, the said constitutent power should now logically be in the hands of the President who may thus
exercise it in place of the interim National Assembly. Instead, as pointed out in Gonzales vs. Commission
on Elections, et al., supra, the power to amend the Constitution or to propose amendments thereto
“x x x is part of the inherent powers of the people—as the repository of sovereignty in a republican state, such as
ours—to make, and, hence, to amend their own Fundamental Law.”
As such, it is undoubtedly a power that only the sovereign people, either directly by themselves or
through their chosen delegate, can wield. Since it has been shown that the people, inadvertently or
otherwise, have not delegated that power to any instrumentality during the current stage of our hegira
from crisis to normalcy, it follows of necessity that the same remains with them for them to exercise in
the manner they see fit and through the agency they choose. And, even if it were conceded that—as it is
reputedly the rule in some jurisdictions—a delegation of the constituent authority amounts to a complete
divestiture from the people of the power delegated which they may not thereafter unilaterally reclaim
from the delegate, there would be no violence done to such rule, assuming it to be applicable here,
inasmuch as that power, under the
384


environmental circumstances adverted to, has not been delegated to anyone in the first place. The
constituent power during the first stage of the transition period belongs to and remains with the people,
and accordingly may be exercised by them—how and when—at their pleasure.
At this juncture, a flashback to the recent and contemporary political ferment in the country proves
revelatory. The people, shocked and revolted by the “obvious immorality” of the unabashed manner by
which the delegates to the Constitutional Convention virtually legislated themselves into office as ipso
facto members of the interim National Assembly by the mere fiat of voting for the transitory provisions of
the Constitution, and the stark reality that the unwieldy political monstrosity that the interim Assembly
portended to be would have proven to be a veritable drain on the meager financial resources of a nation
struggling for survival, have unequivocally put their foot down, as it were, on the convocation thereof.
But this patently salutary decision of the people proved to be double-edged. It likewise bound the political
machinery of the Government in a virtual straight-jacket and consigned the political evolution of the
nation into a state of suspended animation. Faced with the ensuing dilemma, the people understandably
agitated for a solution. Through consultations in the barangays and sanggunian assemblies, the
instrumentalities through which the people’s voice is articulated in the unique system of participatory
democracy in the country today, the underpinnings for the hastening of the return to constitutional
normalcy quickly evolved into an overwhelming sentiment to amend the Constitution in order to replace
the discredited interim National Assembly with what the people believe will be an appropriate agency to
eventually take over the law- making power and thus pave the way for the early lifting of martial rule. In
pursuit of this sentiment, and to translate its constraints into concrete action, the Pambansang Katipunan
ng mga Barangay, the Pambansang Katipunan ng mga Kabataang Barangay, the Lupong Tagapagpaganap
of the Katipunan ng mga Sanggunian, and finally the Batasang Bayan, to a man and as one voice, have
come forward with definitive proposals for the amendment of the Constitution, and, choosing the
President—the only political arm of the State at this time through which that decision could be
implemented and the end in view attained—as their spokesman, proposed the amendments under
challenge in the cases at bar.
385
VOL. 73, OCTOBER 12, 1976 385

In the light of this milieu and its imperatives, one thing is inescapable: the proposals now submitted to the
people for their ratification in the forthcoming referendum plebiscite are factually
not of the President; they are directly those of the people themselves speaking thru their authorized
instrumentalities. The President merely formalized the said proposals in Presidential Decree No. 1033. It
being conceded in all quarters that sovereignty resides in the people and it having been demonstrated that
their constituent power to amend the Constitution has not been delegated by them to any instrumentality
of the Government during the present stage of the transition period of our political development, the
conclusion is ineluctable that their exertion of that residuary power cannot be vulnerable to any
constitutional challenge as being ultra vires. Accordingly, without venturing to rule on whether or not the
President is vested with constituent power—as it does not appear necessary to do so in the premises—the
proposals here challenged, being acts of the sovereign people no less, cannot be said to be afflicted with
unconstitutionality. A fortiori, the concomitant authority to call a plebiscite and to appropriate funds
therefor is even less vulnerable not only because the President, in exercising said authority, has acted as a
mere alter ego of the people who made the proposals, but likewise because the said authority is legislative
in nature rather than constituent.
III Third Issue
Little need be said of the claimed insufficiency and impropriety of the submission of the proposed
amendments for ratification from the standpoint of time. The thesis cannot be disputed that a fair
submission presupposes an adequate time lapse to enable the people to be sufficiently enlightened on the
merits or demerits of the amendments presented for their ratification or rejection. However, circumstances
there are which unmistakably demonstrated that the desideratum is met. Even if the proposal appear to
have been formalized only upon the promulgation of Presidential Decree No. 1033 on September 22,
1976, they are actually the crystallization of sentiments that for so long have preoccupied the minds of the
people and their authorized representatives, from the very lowest level of the
386

political hierarchy. Hence, unlike proposals emanating from a legislative body, the same cannot but be
said to have been mulled over, pondered upon, debated, discussed and sufficiently understood by the great
masses of the nation long before they ripened into formal proposals.
Besides, it is a fact of which judicial notice may well be taken that in the not so distant past when the
1973 Constitution was submitted to the people for ratification, an all-out campaign, in which all the
delegates of the Constitutional Convention reportedly
participated, was launched to acquaint the people with the ramifications and working of the new system
of government sought to be inaugurated thereunder. It may thus well be assumed that the people in
general have since acquired, in the very least, a working knowledge of the entirety of the Constitution.
The changes now proposed—the most substantial of which being merely the replacement of the interim
National Assembly with another legislative arm for the Government during the transition period until the
regular National Assembly shall have been constituted—do not appear to be of such complexity as to
require considerable time to be brought home to the full understanding of the people. And, in fact, the
massive and wide-ranging informational and educational campaign to this end has been and still is in full
swing, with all the media, the barangays, the civic and sectoral groups, and even the religious all over the
land in active and often enthusiastic if not frenetic involvement.
Indeed, when the people cast their votes on October 16, a negative vote could very well mean an
understanding of the proposals which they reject; while an affirmative vote could equally be indicative of
such understanding and/or an abiding credence in the fidelity with which the President has kept the trust
they have confided to him as President and administrator of martial rule.
IV Conclusion
It is thus my considered view that no question viable for this Court to pass judgment upon is posed.
Accordingly, I vote for the outright dismissal of the three petitions at bar.
387
VOL. 73, OCTOBER 12, 1976 387

FERNANDO, J., concurring in the result and dissenting in part:
These three petitions, the latest in a series of cases starting from Planas v. Commission resolution in
Javellana on v. Elections,1 Executive continuing Secretary,
with 2
successively in Aquino v. Commission three crucial on Elections,
decisions, 4
and Aquino Aquino v. v.
the epochal and Ponce followed Enrile,

3
_______________
L-35925, January 22, 1973, 49 SCRA 105. The other cases disposed of by the Court are not referred to.
2
L-36142, March 31, 1973, 50 SCRA 30. Again, no reference is made to the other petitions raising the same question as to
the validity of Proclamation No. 1102 announcing the ratification of the Constitution proposed by the Constitutional Convention.
3
L-35546, September 17, 1974, 59 SCRA 183. It must be noted that there were other petitions decided likewise seeking the
nullification of Proclamation No. 1081 declaring martial law.
4
L-40004, January 31, 1975, 62 SCRA 275. This decision affirmed the power of the incumbent President to issue decrees
having the force and effect of law. There was in the main opinion in this case, penned by Justice Makasiar, an explicit recognition
that the incumbent President possesses legislative competence so that during the period of Martial Law he could assure “the
security and preservation of the Republic, * * * the defense of the political and social liberties of the people and * * * the
institution of reforms to prevent the resurgence of rebellion or insurrection or secession or the threat thereof as well as to meet the
impact of a worldwide recession, inflation or economic crisis which presently threatens all nations including highly developed
countries * * *.” (At 298) Justices Antonio, Esguerra, Fernandez, Muñoz Palma and Aquino concurred, although in a separate
opinion, Justice Muñoz Palma qualified it by saying that the grant of legislative power “is necessarily to fill up a vacuum during
the transition period when the interim National Assembly is not yet convened and functioning, for otherwise, there will be a
disruption of official functions resulting in a collapse of the government and of the existing social order.” (At 347) There was
likewise a concurring opinion by the then Justice, now Chief Justice, Castro that such competence is derived from paragraphs 1
and 2 of Sec. 3 of the Transitory Provisions of the Constitution. The then Chief Justice Makalintal and Justices Barredo, Antonio,
Esguerra and Fernandez concurred with this opinion.In a concurring and dissenting opinion, Justice Teehankee would confine
“his legislative and appropriation powers under martial law * * * to the law of necessity of preservation of the state which gave
rise to its proclamation
388

Military Commission,
5
manifest to the same degree the delicate and awesome character of the function of
judicial review. While previous rulings supply guidance and enlightenment, care is to be taken to avoid
doctrinaire rigidity unmindful of altered circumstances and the urgencies of the times. It is inappropriate
to resolve the complex problems of a critical period without full awareness of the consequences that flow
from whatever decision is reached. Jural norms must be read in the context of social facts. There is need
therefore of adjusting inherited principles to new needs. For law, much more so constitutional law, is
simultaneously a reflection of and a force in the society that it controls. No quality then can be more
desirable in constitutional adjudication than that intellectual and imaginative insight which goes into the
heart of the matter. The judiciary must survey things as they are in the light of what they must become. It
must inquire into the specific problem posed not only in terms of the teaching of the past but also of the
emerging political and legal theory, especially so under a leadership notable for its innovative approach to
social problems and the vigor of its implementation. This, on the one side. It must equally be borne in
mind through that this Court must ever be conscious of the risk
inherent in its being considered as a mere subservient instrument of government policy, however
admittedly salutary or desirable. There is still the need to demonstrate that the conclusion reached by it in
cases appropriate for its determination has support in the law that must be applied. To my mind that was
the norm followed, the conclusion reached being that the three petitions be dismissed. I am in agreement.
It is with regret however that based on my reading of past decisions, both Philippine and American, and
more specifically my concurring opinion in Aquino v. Ponce Enrile, I must dissent from the proposition
set forth in the able and scholarly opinion of Justice Martin that there is concentration of power in the
President during a crisis
_______________
(including appropriations for operations of the government and its agencies and instrumentalities).” (At 316-317) The writer
of this opinion had his own concurrence and predicated his vote without an expression of his views as to the grant of legislative
power to the President.
5
L-37364. May 9, 1975, 63 SCRA 546. The Court ruled in this case that military commissions may try civilians for certain
specified offenses according to applicable presidential decrees.
389
VOL. 73, OCTOBER 12, 1976 389

government. Consequently, I cannot see my way clear to accepting the view that the authority to propose
amendments is not open to question. At the very least, serious doubts could be entertained on the matter.
1. With due respect then, I have to dissociate myself from my brethren who would rule that governmental
powers in a crisis government, following Rossiter, “are more or less concentrated in the in Aquino
President.” v. Ponce Adherence Enrile 6
leaves to my concurring and dissenting opinion
me no choice. It must be stated at the outset that with the sufficiency of
doctrines supplied by our past decisions to point the way to what I did consider the appropriate response
to the basic issue raised in the Aquino and the other habeas corpus petitions resolved jointly, it was only
in the latter portion of my opinion that reference was made to United States Supreme Court
pronouncements on martial law, at the most persuasive in character and rather few in number “due no
doubt to concerning the it.”
absence 7
in the It was understandable American Constitution of any provision then that it was only after the
landmark Ex parte Milligan case, that commentators like Cooley in 1868 subject.
and 8
Watson in 1910 paid attention, minimal at that, to the It was next set forth that in the works on American
constitutional law published in this century especially after the leading cases of Sterling v. Constantin and
Duncan v. Kahanamoku,
53/125
“there was a fuller treatment of the question of martial law.”

9
While it is the formulation of Willoughby

that for me is most acceptable, my opinion did take note that another commentator, Burdick, came out
earlier with
_______________
6
59 SCRA 183, 281-309.
7
Ibid, 301.
8
Ibid. Ex parte Milligan is reported in 4 Wall. 2 (1866). It was likewise noted that Story, the first eminent commentator in
American constitutional law made no reference to martial law. Cooley’s work, now in its 8th edition, is entitled Constitutional
Limitations while that of Watson bears the title of Constitution of the United States. At 302.
9
Ibid. Sterling is found in 287 US 378 (1932) and Duncan in 327 US 304 (1946). Among the casebooks on constitutional law
referred to are those by Dodd (1949), Dowling (1950), Sholley (1951), Frank (1932), Freund and Associates (1954), Barrett and
Associates (1963), Kauper (1966), Lockhart and Associates (1970).
390

a similar appraisal.
10
Thus: “So-called martial law, except in occupied territory of an enemy, is merely

the calling in of the aid of military forces by the executive, who is charged with the enforcement of the
law, with or without special authorization by the legislature. Such declaration of martial law does not
suspend the civil law, though it may interfere with the exercise of one’s ordinary rights. The right to call
out the military forces to maintain order and enforce the law is simply part of the police power. It is only
justified when it reasonably appears necessary, and only justifies such acts as reasonably appear necessary
to meet the exigency, including the arrest, or in extreme cases the killing of those who create the disorder
or oppose the authorities. When the exigency is over the members of the military forces are criminally
and civilly liable for acts done beyond the scope of reasonable necessity. When honestly and reasonably
coping with a situation of insurrection or riot a member of the military forces cannot be made liable for
his acts, and persons reasonably arrested under such circumstances will during the insurrection or riot, be
free by writ of habeas corpus.”
not, 11
When the opinion cited Willoughby’s concept was laid on his being “partial to the claims
of of martial liberty.”
law, 12
This stress is evident in the explicit statement from his work quoted by me: “There is, then, strictly
speaking, no such thing in American law as a declaration of martial law whereby military law is
substituted for civil law. So-called declarations of martial law are, indeed, often made but their legal
effect goes no further than to warn citizens that the military powers have been called upon by the
executive to assist him in the maintenance of law and order, and that, while the
emergency lasts, they must, upon pain of arrest and punishment not commit any acts which will in any
way render more difficult the restoration of order and the enforcement of law. Some of the authorities
stating substantially this doctrine are quoted in the
_______________
10
Ibid. It may be observed parenthetically that when I collaborated with Senator Lorenzo M. Tañada in the Constitution of the
Philippines Annotated published almost thirty years ago in 1947 (at 588-589) with two later editions that came out in 1949 (at
694-695) and 1953 (at 1013-1014), it was Willoughby’s view that was cited.
11
Ibid, 302-303. This was the formulation of Burdick in his The Law of the American Constitution, 261 (1922).
12
Ibid, 303.
391
VOL. 73, OCTOBER 12, 1976 391

footnote below.”
13
Nor did I stop there. The words of Willis were likewise cited: “Martial law proper, that is, military law in
case of insurrection, riots, and invasions, is not a substitute for the civil law, but is rather an aid to the
execution of civil law. Declarations of martial law go no further than to warn citizens that the executive
has called upon the military power to assist him in the maintenance of law and order. While martial law is
in force, no new powers are given to the executive and no civil rights of the individual, other than the writ
of habeas the citizen and his state
55/125 corpus, are unchanged.”
are suspended. 14
The relations between
The conclusion reached by me as to the state of American federal law on the question of martial law
was expressed thus: “It is readily evident that even when Milligan supplied the only authoritative
doctrine, Burdick and Willoughby did not ignore the primacy of civil liberties. Willis wrote after Sterling.
It would indeed be surprising if his opinion were otherwise. After Duncan, such an approach becomes
even more strongly fortified. Schwartz, whose treatise is the latest to be published, has this summary of
what he considers the present state of American law: ‘The Milligan and Duncan cases show plainly that
martial law is the public law of necessity. Necessity alone calls it forth; necessity justifies its exercise; and
necessity measures the extent and degree to which it may be employed. It is, the high Court has affirmed,
an unbending rule of law that the exercise of military power, where the rights of the citizen are concerned,
may never be pushed beyond what the exigency requires. If martial law rule survives the necessity on
which alone it rests, for even a single minute, it becomes a mere exercise of lawless violence.’ Further:
‘Sterling v. Constantin is of basic importance. Before it, a number of decisions, including one by the
highest Court, went on the theory that the executive had a free hand in taking martial-law measures.
Under them, it has been widely
supposed that a martial-law proclamation was so far conclusive that any action taken under it was
immune from judicial scrutiny. Sterling v. Constantin definitely discredits these earlier decisions and the
doctrine of
_______________
13
Ibid. The citation is from Willoughby on the Constitution of the United States, 2nd ed. 1591 (1929).
14
Ibid. The excerpt is from Willis on Constitutional Law, 449 (1936). It is to be made clear that in our Constitution, it is only
the privilege of the writ, not the writ itself that is suspended.
392

conclusiveness derived from them. Under Sterling v. Constantin, where martial law measures impinge
upon personal or property rights—normally beyond the scope of military power, whose intervention is
lawful only because an abnormal situation has made it the necessary—the necessity.’ ” 15
executive’s ipse dixit is not of itself conclusive of
There was likewise an effort on my part to show what for me is the legal effect of martial law being
expressly provided for in the Constitution rather than being solely predicated on the common law power
based on the urgent need for it because of compelling circumstances incident to the state of actual clash of
arms: “It is not to be lost sight of that the basis for the declaration of martial law in the Philippines is not
mere necessity but an explicit constitutional provision. On the other hand, Milligan, which furnished the
foundation for Sterling and Duncan had its roots in the English common law. There is pertinence
therefore in ascertaining its significance under that system. According to the noted English author, Dicey:
‘Martial law,’ in the proper sense of that term, in which it means the suspension of ordinary law and the
temporary government of a country or parts of it by military tribunals, is unknown to the law of
England.We have nothing equivalent to what is called in France the “Declaration of the State of Siege,”
under which the authority ordinarily vested in the civil power for the maintenance of order and police
passes entirely to the army (autorite militaire). This is an unmistakable proof of the permanent supremacy
of the law under our constitution.’ There was this qualification: ‘Martial law is sometimes employed as a
name for the common law right of the Crown and its servants to repel force by force in the case of
invasion, insurrection, riot, or generally of any violent resistance to the law. This right, or power, is
essential to the very existence of orderly government, and is most assuredly recognized in the most ample
manner by the law of England. It is a power which has in itself no special connection with the existence
of
an armed force. The Crown has the right to put down breaches of the peace. Every subject, whether a
civilian or a soldier, whether what is called a ‘servant of the government,’ such for example as a
policeman, or a person in no way connected with the administration, not only
_______________
15
Ibid, 303-304. The quotation is from volume 2 of the treatise of Schwartz on the American Constitution, entitled The
Powers of Government 244 (1963) that the citation came from.
393
VOL. 73, OCTOBER 12, 1976 393

has the right, but is, as a matter of legal duty, bound to assist in putting down breaches of the peace. No
doubt policemen or soldiers are the persons who, as being specially employed in the maintenance of
order, are most generally called upon to suppress a riot, but it is clear that all suppression of
57/125
loyal riots.”
16 subjects are bound to take their part in the
Commitment to such an approach results in my inability to subscribe to the belief that martial law in
terms of what is provided both in the 1935 and the present Constitution, affords sufficient justification for
the concentration of powers in the Executive during periods of crisis. The better view, considering the
juristic theory on which our fundamental law rests is that expressed by Justice Black in Duncan v.
Kahanamoku: “Legislatures and courts are not merely cherished government.”
American 17
If there institutions; has been no they observance are indispensable to our of such a cardinal concept at the
present, it is due to the fact that before the former Congress could meet in regular session anew, the
present Constitution National was adopted, abolishing Assembly, which has not been it and convened.
providing 18
for an interim So I did view the matter.
2. Nor did I ignore Rossiter in my Aquino v. Ponce Enrile opinion. Reference was made to the first
chapter on his work on Constitutional Dictatorship where he spoke of martial rule as “a device designed
for use in the crisis of invasion or rebellion. It may be most precisely defined as an extension of military
government to the civilian population, the substitution commander for the will of the of the people’s
elected will of government.”
a military 19
Since, for me at least, the Rossiter characterization of martial law has in it more of the common law
connotation, less than duly mindful of the jural effects of its inclusion in the Constitution itself as a
legitimate device for coping with emergency conditions in times of grave danger, but always subject to
attendant limitations in accordance with the fundamental postulate of a charter’s supremacy, I felt
justified
_______________
16
Ibid. The reference is to Dicey on the Law of the Constitution, 287-288 (1962).
17
327 US 304, 322.
18
Cf. Aquino v. Commission on Elections, 62 SCRA 275.
19
Ibid, 305. The citation from Rossiter is from the first chapter of his work on Constitutional Dictatorship, 9 (1948).
394

in concluding: “Happily for the Philippines, the declaration of martial law lends itself to the interpretation
that the Burdick, Willoughby, Willis, Schwartz formulations paying due regard to the primacy of liberty
possess relevance. It cannot be said that the martial rule concept of Rossiter, latitudinarian in scope, has
been adopted, even on the assumption that it can be reconciled with our Constitution. What, is undeniable
is that President Marcos has repeatedly maintained that Proclamation No. 1081 was precisely based on the
Constitution and that the validity of acts taken thereunder could be passed upon by the Supreme Court.
For me, that is quite reassuring, persuaded as I am likewise that the view of Rossiter puts a premium is
opposed on freedom.”
to the fundamental 20
concept of our polity, which
3. Candor and accuracy compel the admission that such a conclusion has to be qualified. For in the
opinion of the Court in the aforecited Aquino v. Commission on Elections, penned by Justice Makasiar,
the proposition was expressly affirmed “that as Commander-in-Chief and enforcer or administrator of
martial law, the incumbent President of the Philippines can promulgate proclamations, orders and decrees
during the period of Martial Law essential to the security and preservation of the Republic, to the defense
of the political and social liberties of the people and to the institution of reforms to prevent the resurgence
of rebellion or insurrection or secession or the threat thereof as well as to meet the impact of a worldwide
recession, inflation or economic crisis which presently countries.”
21
threatens To that extent, all nations Rossiter’s including highly developed view, mainly relied upon, now
possesses juristic significance in this jurisdiction. What, for me at least, gives cause for concern is that
with the opinion of the Court this intrusion of what I would consider an alien element in the limited
concept of martial law as set forth in the Constitution would be allowed further incursion into the corpus
of the law, with the invocation of the view expressed in the last chapter of his work, approving the
“concentration of governmental power in a democracy [as] a corrective to the crisis inefficiencies
_______________
20
Ibid, 306.
21
62 SCRA 275, 298. Justice Makasiar cited pages 7 and 303 of Rossiter’s Constitutional Dictatorship.
395
VOL. 73, OCTOBER 12, 1976 395

inherent in the doctrine of the separation of powers.”
22
It is to the credit of the late Professor Rossiter

as an objective scholar that in the very same last chapter, just three pages later, he touched explicitly on
the undesirable aspect of a constitutional dictatorship. Thus: “Constitutional Dictatorship is a dangerous
thing. A declaration of martial law or the passage of an enabling act is a step which must always be feared
and sometimes bitterly resisted, for it is at once an admission of the incapacity of democratic institutions
to defend the order within which they function and a too conscious employment of powers and methods
long ago outlawed as destructive of constitutional government. Executive legislation, state control of
popular liberties, military courts, and arbitrary executive action were governmental features attacked by
the men who fought for freedom not because they were inefficient or unsuccessful, but because they were
dangerous and oppressive. The reinstitution of any of these features is a perilous matter, a step to be taken
only when institution the dangers is not adopted.”
to a free 23
state will be greater if the dictatorial
4. It is by virtue of such considerations that I find myself unable to share the view of those of my
brethren who would accord recognition to the Rossiter concept of concentration of governmental power in
the Executive during periods of crisis. This is not to lose sight of the undeniable fact that in this country
through the zeal, vigor, and energy lavished on projects conducive to the general welfare, considerable
progress has been achieved under martial rule. A fair summary may be found in a recent address of the
First Lady before the delegates to the 1976 International Monetary Fund-World Bank Joint Annual
Meeting: “The wonder is that so much has been done in so brief a time. Since September 1972, when
President Marcos established the crisis government, peace and order have been
_______________
22
The extensive citation in the opinion of Justice Martin is found in Chapter XIX of Rossiter’s opus entitled Constitutional
Dictatorship: The Forms, The Dangers, The Criteria, The Future. That is the last chapter of his work, after a rather exhaustive
discussion of what are referred to by him as Constitutional Dictatorship in Germany (Chapters III to V), Crisis Government in the
French Republic (Chapters VI to IX), Crisis Government in Great Britain (Chapters X to XIII) and Crisis Government in the
United States (Chapters XIV to XVIII).
23
Ibid, 294.
396

restored in a country once avoided as one of the most unsafe in the world. We have liberated millions of
Filipino farmers from the bondage of implementation tenancy, in the of agrarian reform.”
most 24
Further, vigorous she said: and “A extensive dynamic economy has replaced a stagnant order, and its
rewards are distributed among the many, not hoarded by a few. Our foreign policy, once confined by fear
and suspicion to a narrow alley of self- imposed isolation, now travels the broad expressways of
friendship and constructive interaction with the whole world, these in a new spirit of confidence and self-
reliance. And finally, forced to work out our own salvation, the Filipino has re-discovered the well-
springs of his strength and resiliency. As Filipinos, we have found our true identity. apologetic And and
having afraid.”
broken 25 The
60/125 our crisis of identity, we are no longer very idea of a crisis, however, signifies a transitory,
certainly not a permanent, state of things. President Marcos accordingly has not been hesitant in giving
utterance to his conviction that full implementation of the modified parliamentary system under the
present Constitution should not be further delayed. The full restoration of civilian rule can thus be
expected. That is more in accord with the imperatives of a constitutional order. It should not go unnoticed
either that the President has referred to the present regime as one of “constitutional authoritarianism.”
That has a less objectionable ring, authority being more identified with the idea of law, as based on right,
the very antithesis of naked force, which to the popular mind is associated with dictatorship, even if
referred to as “constitutional.”
For me likewise, that equally eminent scholar Corwin, also invoked in the opinion of the Court, while
no doubt a partisan of a strong Presidency, was not averse to constitutional restraints even during periods
of crisis. So I would interpret this excerpt from the fourth edition of his classic treatise on the Presidency:
“A regime of martial law may be compendiously, if not altogether accurately, defined as one in which the
ordinary law, as administered by the ordinary courts, is superseded for the time being by the will of a
military commander. It follows that, when martial law is instituted under national authority, it rests
ultimately on the will of the President of the United States in
_______________
24
Imelda Romualdez Marcos, The Filipino Between Two Worlds, Philippines Daily Express 10, October 9, 1976.
25
Ibid.
397
VOL. 73, OCTOBER 12, 1976 397


his capacity as Commander-in-Chief. It should be added at once, nevertheless, that the subject is one in
which the record of actual practice fails often to support the niceties of theory. Thus, the employment of
the military arm in the enforcement of the civil law does not invariably, or even usually, involve martial
law in the strict sense, for, as was noted in the preceding section, soldiers are often placed simply at the
disposal and direction of the civil authorities as a kind of supplementary police, or posse comitatus; on the
other hand by reason of the discretion that the civil authorities themselves are apt to vest in the military in
any emergency requiring its assistance, the line between such an employment of the military and a regime
of martial law is frequently any but a hard and fast one. And partly because of these ambiguities the
conception itself of martial law today bifurcates into two conceptions, one of which shades off into
military government and the other into the situation just described, in which the civil authority remains
theoretically in control although dependent on military aid. Finally, there is the situation that obtained
throughout the North during the Civil War, when the privilege of the writ of habeas corpus was suspended
as to certain law were classes generally of suspects, absent.”
26
although other characteristics of martial

It is by virtue of the above considerations that, with due respect to the opinion of my brethren, I cannot
yield assent to the Rossiter view of concentration of governmental powers in the Executive during martial
law.
5. There is necessity then, for me at least, that the specific question raised in all three petitions be
squarely faced. It is to the credit of the opinion of the Court that it did so. The basic issue posed concerns
the boundaries of the power of the President during this period of martial law, more precisely whether it
covers proposing amendments to the Constitution. There is the further qualification if the stand of
respondents be taken into account that the interim National Assembly has not been convened and is not
likely to be called into session in deference to the wishes of the people as expressed in three previous
referenda. It is the ruling of the majority that the answer be in the affirmative, such authority being well
within
_______________
26
Corwin, The President Office and Powers, 4th rev. ed., 139-140 (1957).
398

the area of presidential competence. Again I find myself unable to join readily in that conviction. It does
seem to me that the metes and
bounds of the executive domain, while still recognizable, do appear blurred. This is not to assert that there
is absolutely no basis for such a conclusion, sustained as it is by a liberal construction of the principle that
underlies Aquino v. Commission on Elections as to the validity of the exercise of the legislative
prerogative by the President as long as the interim National Assembly is not convened. For me, the stage
of certitude has not been reached. I cannot simply ignore the vigorous plea of petitioners that there is a
constitutional deficiency consisting in the absence of any constituent power on the part of the President,
conferring it on the interim the express National provision Assembly.
of the 27
Constitution The learned advocacy Solicitor General reflected Estelito in the pleadings P. Mendoza
as well 28 failed as the to
oral discourse of erase the grave doubts in my mind that the Aquino doctrine as to the possession of
legislative competence by the President during this period of transition with the interim lawmaking body
not called into session be thus expanded. The majority of my brethren took that step. I am not prepared to
go that far. I will explain why.
The way, for me, is beset with obstacles. In the first place, such an approach would lose sight of the
distinction between matters legislative 1935 casebook
Constitution 30
published and constituent. by the Justices same That year, Malcolm is one implicit and in the Laurel.
treatise 29
on the In their subject of constitutional amendments is of Ellingham the four decisions v. Dye 31
on which the
categorically distinguished between constituent and legislative powers. Dean Sinco, a wellknown
authority on the subject, was quite explicit. Thus: “If
_______________
27
According to Art. XVII, Sec. 15 of the present Constitution: “TheinterimNational Assembly, upon special call by the
interim Prime Minister, may, by a majority vote of all its Members, propose amendments to this Constitution. Such amendments
shall take effect when ratified in accordance with Article Sixteen hereof.”
28
He was assisted by Assistant Solicitor General Hugo E. Gutierrez Jr. and Trial Attorney Nannette R. de Castro.
29
Malcolm and Laurel, Philippine Constitutional Law, 3rd ed., 20-21 (1936).
30
Malcolm and Laurel, Cases on Constitutional Law (1936).
31
Ibid. Ellingham v. Dye is reported in 99 NE 1 (1912).
399
VOL. 73, OCTOBER 12, 1976 399
there had been no express provision in the Constitution granting Congress the power to propose
amendments, it would be outside its authority to assume that power. Congress may not claim it under the
general grant of legislative power for such grant does not carry with it the right ‘to erect the state, institute
the form of its government,’
which is considered a function inherent in the people. Congressional law-making authority is limited to
the power of approving the laws ‘of civil government conduct relating to instituted,’ the government the
details and particulars of established by the people.”
the 32
If that distinction be preserved, then for me the aforecited Aquino decision does not reach the heart of the
matter.
Nor is this all. In the main opinion of Justice Makasiar as well as that of the then Justice, now Chief
Justice, Castro, support for the ruling that the President cannot be deemed as devoid of legislative power
explicit during constitutional this transition provisions.
stage 33
is That supplied is not by the implications case with from the power to propose amendments. It is solely
the interim National Assembly that is mentioned. That is the barrier that for me is well- nigh
insurmountable. If I limit myself to entertaining doubts rather than registering a dissent on this point, it is
solely because of the consideration, possessed of weight and significance, that there may be indeed in this
far-from-quiescent and static period a need for amendments. I do not feel confident therefore that a
negative vote on my part would be warranted. What would justify the step taken by the President, even if
no complete acceptance be accorded to the view that he was a mere conduit of the barangays on this
matter, is that as noted in both qualified concurrences by Justices Teehankee and Muñoz Palma in
Aquino, as far as the legislative and appropriation powers are concerned, is the necessity that unless such
authority be recognized, there may be paralyzation of governmental activities, While not squarely
applicable, such an approach has, to my mind, a persuasive quality as far as the power to propose
amendments is concerned.
_______________
32
Sinco, Philippine Political Law, 11th ed. 63 (1962). It is precisely Ellingham v. Dye that was cited.
33
Justice Makasiar referred to Article XVII, Sec. 3, par. 2 of the present Constitution. The present Chief Justice would
include paragraph 1 to the above. Vide jn. 4.
400

Thus I would confine myself to the expression of serious doubts on the question rather than a dissent.
6. The constitutional issue posed as thus viewed leaves me free to concur in the result that the petitions
be dismissed. That is to accord respect to the principle that judicial review goes no further than to
checking clear infractions of the fundamental law, except in the field of human rights where a much
greater vigilance is required. That is to make of the Constitution a pathway to rather than a barrier against
a desirable objective. As shown by my concurring and dissenting
63/125
opinion in Tolentino v. Commission on Elections,

34
a pre-martial law decision, people

35
exerts the fundamental a compelling postulate force requiring that sovereignty the judiciary resides to
refrain in the
as much as possible from denying the people the opportunity to make known their wishes on matters of
the utmost import for the life of the nation, Constitutional amendments fall in that category. I am fortified
decisions.
in 36
that There conviction is reinforcement by the teaching to such a of conclusion persuasive from American
retired Chief Aytona Justice v. Castillo,
Concepcion’s 37
concurring and dissenting opinion in which I consider applicable to the present situation. These are his
words: “It is well settled that the granting of writs of prohibition and mandamus is ordinarily within the
sound discretion of the courts, to be exercised on equitable principles, and that * Hechanova,
*.”
said 38
As writs he 39 noted should an
64/125 be issued when the right to the relief is clear * in his ponencia in the later case of Gonzales V.
action for prohibition, while petitioner was sustained in his stand, no injunction was issued. This was
evident in the dispositive
_______________
34
L-34150, October 16, 1951, 41 SCRA 702.
35
According to Article II, Section 1 of the present Constitution: “The Philippines is a republican state. Sovereignty resides in
the people and all government authority emanates from them.”
36
Cf. Cranmer v. Thorson, 68 NE 202 (1896); Edwards v. Lesueur, 83 SW 1130 (1896); People v. Mills, 70 P. 322 (1902);
Threadgill v. Cross, 109 P 558 (1910); Scott v. James, 76 SE 283 (1912); Weinland v. Fulton, 121 NE 816 (1918); Gray v. Mass,
156 So. 262 (1934); Gray v. Winthrop, 156 So. 270 (1934); State v. Burns, 172 SW2 259 (1943); Hillman v. Stockett, 39 A2 803
(1944).
37
L-19313, January 19, 1962, 4 SCRA 1.
38
Ibid, 17-18.
39
L-21897, October 22, 1964, 9 SCRA 230.
401
VOL. 73, OCTOBER 12, 1976 401

portion where judgment was rendered “declaring that respondent Executive Secretary had and has no
power to authorize the importation in question; that he exceeded his jurisdiction in granting said
authority; that said importation is not sanctioned by law and is contrary the injunction to its provisions;
prayed for and must that, be for and lack is, of accordingly, the requisite denied.”
majority, 40
With the illumination thus supplied, it does not necessarily follow that even a dissent on my part would
necessarily compel that I vote for the relief prayed for. Certainly this is not to belittle in any way the
action taken by petitioners in filing these suits. That, for me, is commendable. It attests to their belief in
the rule of law. Even if their contention as to lack of presidential power be accepted in their
entirety, however, there is still discretion that may be exercised on the matter, prohibition being an
equitable remedy. There are, for me, potent considerations that argue against acceding to the plea. With
the prospect of the interim National Assembly being convened being dim, if not non-existent, if only
because of the results in three previous referenda, there would be no constitutional agency other than the
Executive who could propose amendments, which, as noted, may urgently press for adoption. Of even
greater weight, to my mind, is the pronouncement by the President that this plebiscite is intended not only
to solve a constitutional anomaly with the country devoid of a legislative body but also to provide the
machinery by which the termination of martial law could be hastened. That is a consummation devoutly
to be wished. That does militate strongly against the stand of petitioners. The obstruction they would pose
may be fraught with pernicious consequences.
It may not be amiss to refer anew to what I deem the cardinal character of the jural postulate explicitly
affirmed in both the 1935 and the present Constitutions that sovereignty resides in the people. So I made
clear in Tolentino v. Commission thereafter in my dissent in Javellana v. and my concurrence in Aquino
v. Commission The Executive on on Elections.
Elections Secretary
42
The and 41
destiny of the country lies in their keeping. The role of leadership is not to be minimized. It is crucial; it is
of the essence. Nonetheless, it is their will, if given expression in a manner sanctioned by law and with
due care
_______________
40
Ibid, 244.
41
50 SCRA 30, 310-333 (1973).
42
59 SCRA 275, 306-315 (1974).
402

that there be no mistake in its appraisal, that should be controlling. There is all the more reason then to
encourage their participation in the power process. That is to make the regime truly democratic.
Constitutional law be Bryn-Jones,
orthodoxy followed. 46 and McIver.

So I would 47
requires, interpret however, Laski,
that 43
Corwin,
the fundamental
44
Lerner,
45
7. There is reassurance in the thought that this Court has affirmed its commitment to the principle that
the amending process gives rise to the a leading justiciable case rather of Gonzales than a political v.
Commission question. on So Elections.
it has been 48
since
since then been followed Planas Executive v. Commission Secretary.
51
This on in Elections,
Tolentino 50
and v. Commission lastly, in Javellana on Elections, v. It The has 49
Court did not heed the vigorous plea of the Solicitor General to resurrect the
political question doctrine
52
announced in Mabanag v. Lopez Vito.

52
This is not to deny that the federal Coleman rule v. Miller,

in the 53
United a 1939 States decision, as set and forth relatively
in the leading case of
_______________
43
Laski, Grammar of Politics, 4th ed., 34 (1937).
44
Corwin, The Higher Law Background of American Constitutional Law, Selected Essays on Constitutional Law 3 (1938).
45
Lerner, Ideas are Weapons, 470 (1939).
46
Bryn-Jones, Toward a Democratic New Order 23 (1945).
47
McIver, The Web of Government 84 (1947).
48
L-28916, November 9, 1967, 21 SCRA 774.
49
L-23415, October 16, 1971, 41 SCRA 702.
50
L-35925, January 22, 1973, 49 SCRA 105.
51
L-36142, March 31, 1973, 50 SCRA 30. If I read correctly the concurring opinion of the then Chief Justice Makalintal and
the now Chief Justice Castro, then an Associate Justice, where the question raised concerns the adoption and enforcement of a
new Constitution, then it may be looked upon as political.
52
78 Phil. 1 (1947). To be more precise, there were only five Justices, headed by Justice Tuason, with the then Chief Justice
Moran and the then Justices Paras, later himself a Chief Justice, Hilado, Pablo and Hontiveros, who were of that persuasion. The
other two votes necessary for a majority for dismissing the prohibition petition were supplied by Justice, also later a Chief
Justice, Bengzon and Justice Padilla.
53
307 US 433. In the concurring opinion of Justice Black, with Justices Roberts, Frankfurter and Douglas in agreement, he
made the categorical statement that such process “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.” At 459.
403
VOL. 73, OCTOBER 12, 1976 403

Sanidad vs.Commission on Elections
recent contention.
State 54
That court may decisions, be the case supply in the United ammunition States, but to certainly such a
not in this jurisdiction. Philippine constitutional tradition is to the contrary. It can trace its origin to these
words in the valedictory address before the 1934-35 Constitutional Convention by the illustrious Claro M.
Recto: “It is one of the paradoxes a democracy that the people of times place more confidence in
instrumentalities of of
66/125
the their State sovereignty.”
other than 55
those It can directly be said chosen by them for the exercise with truth, therefore, that there has invariably
been a judicial predisposition to activism rather than self-restraint. The thinking all these years has been
that it goes to the heart of constitutionalism. It may be said that this Court has shunned the role of a mere
interpreter; it did exercise at times creative power. It has to that extent participated in the molding of
policy. It has always recognized that in the large and undefined field of constitutional law, adjudication
partakes of the quality of
statecraft.The assumption has been that just because it cannot by itself guarantee the formation, much less
the perpetuation of democratic values or, realistically, it cannot prevail against the pressure of political
forces if they are bent in other directions, it does not follow that it should not contribute its thinking to the
extent that it can. It has been asked, it will continue to be asked, to decide momentous questions at each
critical stage of this nation’s life.
There must be, however, this caveat.Judicial activism gives rise to difficulties in an era of
transformation and change. A society in flux calls for dynamism in the law, which must be responsive to
the social forces at work. It cannot remain static. It must be sensitive to life. This Court then must avoid
the rigidity of legal ideas. It must resist the temptation of wallowing in the wasteland of meaningless
abstractions. It must face stubborn reality. It has to have a feel for the complexities of the times. This is
not to discount the risk that it
_______________
54
Cf. Hatcher v. Meredith, 173 SW2d 665 (1943); In re Application of Borg, 35 A2d 220 (1944); Renck v. Superior Court of
Maricopa County, 187 P2d 656 (1947); In re Opinion of Justices, 47 SO2d 643 (1950); Funk v. Fielder, 243 SW2d 474 (1951);
Baum v. Newbry, 267 P2d 220 (1954); Boe v. Foss, 77 NW2d 1 (1956); Goldner v. Adams, 167 SO2d 575 (1964); Hamilton v.
City of Shreveport, 174 SO2d 529 (1965).
55
Laurel, S., ed., VII Proceedings of the Philippine Constitutional Convention (1934-1935), Appendix L, 800.
404

may be swept too far and too fast in the surge of novel concepts. The past too is entitled to a hearing; it
cannot just be summarily ignored. History still has its uses. It is not for this Court to renounce the virtue
of systematic jural consistency. It cannot simply yield to the sovereign sway of the accomplished fact. It
must be deaf to the dissonant dialectic of what appears to be a splintered society. It should strive to be a
factor for unity under a rule of law. There must be, on its part, awareness of the truth that a new juridical
age born before its appointed time may be the cause of unprecedented travail that may not end at birth. It
is by virtue of such considerations that I did strive for a confluence of principle and practicality. I must
confess that I did approach the matter with some misgivings and certainly without any illusion of
omniscience.I am comforted by the thought that immortality does not inhere in judicial opinions.
8.I am thus led by my studies on the subject of constitutional law and, much more so, by previous
judicial opinions to concur in the dismissal of the petitions. If I gave expression to views not currently
fashionable, it is solely due to deeply-ingrained beliefs. Certainly, I am the first to recognize the worth of
the social and economic
reforms so needed by the troubled present that have been introduced and implemented. There is no
thought then of minimizing, much less of refusing to concede, the considerable progress that has been
made and the benefits that have been achieved under this Administration. Again, to reiterate one of my
cherished convictions, I certainly approve of the adherence to the fundamental principle of popular
sovereignty, which, to be meaningful however, requires both freedom in its manifestation and accuracy in
ascertaining what it wills. Then, too, it is fitting and proper that a distinction was made between two
aspects of the coming poll, the referendum and the plebiscite. It is only the latter that is impressed with
authoritative force. So the Constitution requires. Lastly, there should mention in my concurrence in
Aquino v. Commission on
68/125
be, Elections,
as I did 56
full respect for free speech and press, free assembly and free association. There should be no thought of
branding the opposition as the enemy and the expression of its views as anathema. Dissent, it is fortunate
to note, has been encouraged. It has not been identified with disloyalty. That ought to be the
_______________
56
62 SCRA 275, 306-315.
405
VOL. 73, OCTOBER 12, 1976 405

case, and not solely due to presidential decrees. Constructive criticism is to be welcomed not so much
because of the right to be heard but because there may be something worth hearing. That is to ensure a
true ferment of ideas, an interplay of knowledgeable minds. There are though well-defined limits. One
may not advocate disorder in the name of protest, much less preach rebellion under the cloak of dissent.
What I mean to stress is that except on a showing of clear and present danger, there must be respect for
the traditional liberties that make a society truly free.
TEEHANKEE, J., dissenting:
I. On the merits: I dissent from the majority’s dismissal of the petitions for lack of merit and vote to grant
the petitions for the following reasons and considerations:
1.It is undisputed that neither the 1935 Constitution nor the 1973 Constitution grants to the incumbent
President the constituent power to propose and approve amendments to the Constitution to be submitted
to the people for ratification in a plebiscite.
The 1935 Constitution expressly vests the constituent power in Congress, by a three-fourths vote of all
its amendments or call a constitutional convention members, to for the purpose.
propose
1
The 1973 Constitution expressly vests the constituent power in the regular National Assembly to
propose amendments (by a three-
fourths vote of all its members) or “call a constitutional convention” (by a two-thirds vote of all its
members) or “submit the question of calling such convention to majority vote of all its members). the 2
electorate in an election” (by a
The transitory provisions of the 1973 Constitution expressly vest the constituent power during the
period of transition in the interim National (the (to) propose incumbent Assembly amendments.”
President
“upon 3
) special 4 ...by http://www.central.com.ph/sfsreader/session/00000164a3a59b0889a9c9c3003600fb002c009e/t/?o=False 69/125
call by the interim Prime Minister a majority vote of all its members
_______________
1
Article XV, section 1.
2
Article XVI, section 1, paragraphs (1) and (2).
3
Article XVII, section 3 (1).
4
Article XVII, section 15.
406

Since the Constitution provides for the organization of the essential departments of government, defines
and delimits the powers of each and prescribes the manner of the exercise of such powers, and the
constituent power has not been granted to but has been withheld from the questioned President decrees
or 5
Prime Minister, it follows that the President’s proposing and submitting constitutional amendments
directly to the people (without the intervention of the interim National Assembly in whom the power is
expressly vested) are devoid of constitutional and legal basis.
2.The doctrine in the leading case of Tolentino vs. Comelec is controlling in the case at bar. In therein
declaring null and void the acts of the 1971 Constitutional Convention and of the Comelec in calling a
plebiscite with the general elections scheduled for November 8, 1971 for the purpose of submitting for the
people’s ratification an advance amendment reducing the voting age from 21 years to 18 years, and
issuing writs of prohibition and injunction against the holding of the plebiscite, this Court speaking
through Mr. Justice Barredo ruled that
—The Constitutional provisions on amendments
6
“dealing with the procedure or manner of

amending the fundamental law are binding upon the Convention and government, (and) are no less
binding the upon other the people”;
departments 7
of the
—“As long as any amendment is formulated and submitted under the aegis of the present Charter, any
proposal for such amendment which is not in conformity with the letter, spirit and intent of the Charter
this Court”; for 8
effecting amendments, cannot receive the sanction of
—“The real issue here cannot be whether or not the amending process delineated by the present
Constitution may be disregarded in
favor of allowing the sovereign people to express their decision on the proposed amendments, if only
because it is
_______________
5
P.D. No. 991 dated Sept. 2, 1976, as amended by P.D. No. 1031 dated Sept. 22, 1976 and P.D. No. 1033 dated Sept. 22,
1976 “Stating the questions to be submitted to the people in the referendumplebiscite on October 16, 1976”.
6
Art. XV, sec. 1, 1935 Constitution (see Art. XVI, secs. 1 and 2, 1973 Constitution).
7
Resolution on motion for reconsideration in Tolentino vs. Comelec dated Nov. 4, 1971, at page 3.
8
Idem, at page 4.
407
VOL. 73, OCTOBER 12, 1976 407

evident that the very idea of departing from the fundamental law is anachronistic essence of the
in rule the of realm law”;

of 9
and
constitutionalism and repugnant to the
—Accordingly barred the plebiscite as improper and premature, since “the provisional nature of the
proposed amendment and the manner of its submission to the people for ratification or rejection” did
regard, not “conform as expressed with in the the mandate Constitution of the itself”,
people 10
themselves i.e. the mandatory in such
requirements of the mending process as set forth in the Article on Amendments.
3. Applying the above rulings of Tolentino to the case at bar, mutatis mutandis, it is clear that where
the proposed amendments are violative of the Constitutional mandate on the amending process not merely
for being a “partial amendment” of a “temporary or provisional character” (as in Tolentino)but more so
for not being proposed and approved by the department vested by the Constitution with the constituent
power to do so, and hence transgressing the substantive provision that it is only the interim National
Assembly, upon special call of the interim Prime Minister, by a majority vote of all its members that may
propose the amendments, the Court must declare the amendment proposals null and void. law, 4.
unchangeable This is so because by ordinary the Constitution means”
11
but is a only “superior by the paramount particular mode and manner prescribed therein by the people. As
stressed by Cooley, “by the Constitution which they establish, (the people) not only tie up the hands of
their official agencies but their own hands as well; and neither the officers of the State, nor the whole
people as an aggregate fundamental body, law”.
are 12
at liberty to take action in opposition to this
The vesting of the constituent power to propose amendments in the legislative body (the regular
National Assembly or the interim, National Assembly during the transition period) or in a
constitutional convention called for the purpose is in accordance with universal practice. “From the very
necessity of the case” Cooley points out “amendments to an existing constitution, or entire revisions of it,
must be prepared and matured by some body of representatives chosen for the purpose. It is obviously
_______________
9
Idem, at page 4
10
Idem, at page 4.
11
Marshall, C.J. in Marburg vs. Madison, 1 Cranch 137 (1803).
12
Cooley’s Constitutional Limitations, 8th Ed., Vol. 1, p. 81.
408

impossible for the whole people to meet, prepare, and discuss the proposed alterations, and there seems to
be no feasible mode by which an expression of their will can be obtained, except by asking it upon the
single point of assent or disapproval.” This body of representatives vested with the constituent power
“submits the result of their deliberations” and “puts in proper form the questions of amendment rejection.
13
upon which the people are to pass”—for ratification or

5. The Court in Tolentino thus rejected the argument “that the end sought to be achieved is to be
desired” and in denying reconsideration, in paraphrase of the late Claro M. Recto, declared that “let those
who would put aside, invoking grounds at best controversial, any mandate of the fundamental law
purportedly in order to attain some laudable objective bear in mind that someday somehow others with
purportedly more laudable objectives may take advantage of the precedent and continue the destruction of
the Constitution, making those who laid down the precedent of justifying deviations from the
requirements of the Constitution the victims of their own folly.”
This same apprehension was echoed by now retired Justice Calixto cases 14
that O. “we Zaldivar will be in opening his dissenting opinion in the Ratification the gates for a similar
disregard to the Constitution in the future. What I mean is that if this Court now declares that a new
Constitution is now in force because the members of the citizens assemblies had approved said new
Constitution, although that approval was not in accordance with the procedure and the requirements
prescribed in the 1935 Constitution, it can happen again in some future time that some amendments to the
Constitution may be adopted, even in a manner contrary to the existing Constitution and the law, and then
said proposed amendments is submitted to the people in any manner and what will matter is that a basis is
claimed that there was approval by the
people.There will not be stability in our constitutional system, and necessarily no stability in our
government.”
6. It is not legally tenable for the majority, without over-ruling the controlling precedent of Tolentino
(and without mustering the required majority vote to so overrule) to accept the proposed; amendments as
valid notwithstanding their being
______________
13
Idem, pp. 87-88.
14
Javellana vs. Exec. Secretary, 50 SCRA 30 (1973).
409
VOL. 73, OCTOBER 12, 1976 409

“‘not in conformity with the letter, spirit and intent of the provision of the Charter for effecting
amendments” on the reasoning that “If the President has been legitimately discharging the legislative
functions of the interim National Assembly, there is no reason why he cannot validly discharge the
function of that Assembly to propose amendments peculiar, In the to earlier its to gross the leading
legislative Constitution, case of functions.” Gonzales which 15
is vs. but Comelec
adjunct, 16
,this although Court speaking through now retired Chief Justice Roberto Concepcion, pointed out that
“Indeed, the power to amend the Constitution or to propose amendments legislative powers to
72/125
thereto Congress”
is not 17
or included to the in National the general Assembly.
gran of 18
Where it not for the express grant in the Transitory Provisions of the constituent power to the interim
National Assembly, the interim National Assembly could not claim the power under the general grant of
legislative power during The majority’s ruling in the the transition Referendum period.
cases
19
that the Transitory Provisions in section

3(2) recognized the existence of the authority to legislate in favor of the incumbent President during the
period of martial law manifestly cannot be stretched to encompass the constituent power as expressly
vested in the interim National Assembly in derogation of the allotment of powers defined in the
Constitution. Paraphrasing Cooley on the as one of the settled maxims of non-delegation constitutional
law,
of legislative 20
the constituent power
power has been lodged by the sovereign power of the people with the interim National Assembly during
the transition period and there it must remain as the solo constitutional agency until the Constitution itself
is changed. As was aptly stated by Justice landmark case of Angara vs. Electoral Jose P. Commission
Laurel 21
,“(T)he
in the 1936
_______________
15
Majority opinion at p. 20.
16
21 SCRA 774 (1967).
17
Citing Sec. 1, Art. VI, 1935 Constitution.
18
See sec. 1, Art. VIII, 1973 Constitution.
19
Aquino vs. Comelec, 62 SCRA 275(Jan. 31, 1975); see also Gonzales vs. Comelec, L-40117, Feb. 22, 1975.
20
Cooley, Constitutional Limitations, 8th Ed., Vol. 1, p. 224.
21
63 Phil. 134 (1936).
410

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”.
7. Neither is the justification of “constitutional impasse” tenable. The sentiment of the people against
the convening of the interim National Assembly and to have no elections for “at least seven (7) years”
concededly could not amend the Constitution insofar as the interim National Assembly is concerned
(since it admittedly came into existence “immediately” upon the proclamation of ratification of the 1973
Constitution), much less remove the constituent power from said interim National Assembly.
As stressed in the writer’s separate opinion in the Referendum cases22, “(W)hile it has been advanced
that the decision to defer the initial convocation of the interim National Assembly was supported by the
results of the referendum in January, 1973 when the people voted against the convening of the interim
National Assembly for at least seven years, such sentiment cannot be given any legal force and effect in
the light of the State’s admission at the hearing that such referendums are merely consultative and cannot
amend the Constitution or any provision or mandate thereof such as the Transitory Provisions which call
for the ‘immediate existence’ and ‘initial convening of the interim National Assembly to ‘give priority to
measures for the orderly transition from the presidential to the parliamentary system’ and the other urgent
measures enumerated in section 5 thereof”.
While the people reportedly expressed their mandate against the convening of the interim National
Assembly to discharge its legislative tasks during the period of transition under martial law, they certainly
had no opportunity and did not express themselves against convening the interim National Assembly to
411
VOL. 73, OCTOBER 12, 1976 411

discharge the constituent power to propose amendments likewise vested in it by the people’s official
mandate in the Constitution.
In point of fact, when the holding of the October 16, 1976 referendum was first announced, the
newspapers reported that among the seven questions proposed by the sanggunian and barangay convening
national of the interim executive National committees Assembly.
for 23
the referendum was the
It was further reported that the proposals which were termed tentative “will be discussed and studied
by (the President), the members of the cabinet, and the security council” and that the barangays felt,
notwithstanding the previous referenda on the convening of the interim National Assembly that “it is time
to
________________
23
Sunday Express (and Times Journal) issues of August 29, 1976 reported that “(A)s proposed by the sanggunian and
barangay national executive committees, the following questions will be submitted in the discussions and referendums:
“1.
Do you want martial law to be lifted?
“2.
Do you want to call the interim National Assembly?
“3.
If not, do you want to call a body with legislative powers?
“4.
Do you want such body to have full legislative powers?
“5.
If not, do you want such body to have limited legislative powers as may be determined by the President in a presidential decree?
“6.
If you want to call a body with certain legislative powers, do you want to grant such body authority to propose amendments to the
Constitution to make it conform with the aims of the New Society?
“7.
If you want to call the body referred to in questions 4, 5, and 6, do you want the members of such body elected by the people
through the barangays in accordance with an election code to be promulgated in a decree by the President?
“The barangay and sanggunian executive committees informed the President that it was ‘the thinking of the barangays to
undertake the referendum on an informal manner and that they opted to devise their own ballots, tally sheets, and all other
necessary forms.’
“They likewise expressed their readiness to undertake the discussions and referendum at ‘our own expense’.
“As proposed, and approved by the President, the referendum will be done by secret ballot, except in smaller barangays where
the residents can be gathered in one assembly to decide on the issues by roll call vote if desired by residents.
“The canvassing will be done by the barangay referendum committee.”
412

again ask the people’s opinion of this matter.”
24
8. If proposals for constitutional amendments are now deemed necessary to be discussed and adopted
for submittal to the people, strict adherence with the mandatory requirements of the amending process as
provided in the Constitution must be complied with. This means, under the teaching of Tolentino that the
proposed amendments must validly come from the constitutional agency vested with the constituent
power to do so, namely, the interim National Assembly, and not from the executive power as vested in the
the Cabinet
Prime Minister 25 from whom (the incumbent such power President) has been
with the assistance of withheld. It will not do to contend that these proposals represent the voice of the
people for as was aptly stated by Cooley “The voice of the people, acting in their sovereign capacity, can
be of legal force only when expressed at the times and under the conditions which they themselves x.”
26
have prescribed and pointed out by the Constitution. x x

The same argument was put forward and rejected by this Court in Tolentino which rejected the
contention that the “Convention being a legislative body of the highest order (and directly elected by the
people to speak their voice) is sovereign, and as such, its acts impugned by petitioner are beyond the
_______________
24
“The other issue to be taken up in the public discussions is the question on whether the interim national assembly should be
convened or not.
“This question was asked in two previous referenda—in 1973 and 1975—and was rejected each time by the people.
“The barangays, however, feel it is time to again ask the people’s opinion of this matter.” (Phil. Express issue of Aug. 30,
1976).
25
Art. IX, sec. 1, 1973 Constitution.
26
Cooley’s Constitutional Limitations, 8th Ed. Vol. 2, p. 1349, citing Chief Justice Davis in Gibson vs. Mason, 5 Nev. 283,
291 thus: “The maxim which lies at the foundation of our government is that all political power originates with the people. But
since the organization of government it cannot be claimed that either the legislative, executive, or judicial powers, either wholly
or in part, can be exercised by them. By the institution of government the people surrender the exercise of all these sovereign
functions of government to agents chosen by themselves, who at least theoretically represent the supreme will of their
constituents. Thus all power possessed by the people themselves is given and centered in their chosen representatives”.
413
VOL. 73, OCTOBER 12, 1976 413

control of Congress and the Courts” and ruled that the constitutional article on the amending process “is
nothing more than a part of the Constitution thus ordained by the people. Hence, in construing said
section, We must read it as if the people had said, ‘The Constitution may be amended, but it is our will
that the amendment must be proposed herein provided’ and submitted ”.
27
to Us for ratification only in the manner

This Court therein stressed that “This must be so, because it is plain to Us that the framers of the
Constitution took care that the process of amending the same should not be undertaken with the same ease
and facility in changing an ordinary legislation. Constitution making is the most valued power, second to
none, of the people in a constitutional democracy such as the one our founding fathers have chosen for
this nation, and which we of the succeeding generations generally cherish. And because the Constitution
affects the lives, fortunes, future and every other conceivable aspect of the lives of all the people within
the country and those subject to its sovereignty, every degree of care is taken in preparing and drafting it.
A constitution worthy of the people for which it is intended must not be prepared in haste without
adequate deliberation and study. It is obvious that correspondingly, any amendment of the Constitution is
of no less importance than the whole Constitution itself, and perforce must be conceived and prepared
with as much care and deliberation;” and that “written constitutions are supposed to be designed so as to
last for some time, if not for ages, or for, at least, as long as they can be adopted to the needs and
exigencies of the people, hence, they must be insulated against precipitate and hasty actions motivated by
more or less passing political moods or fancies. Thus, as a rule, the original constitutions carry with them
limitations and conditions, more or less process stringent, of their made amendment.”
so by the 28
people themselves, in regard to the
9. The convening of the interim National Assembly to exercise the constituent power to proposed
amendments is the only way to fulfill the express mandate of the Constitution.
Comelec
As Mr. 29 in Justice the setting Fernando aside
emphasized for this Court in Mutuc vs. of a Comelec resolution

_______________
27
See fns. 8-10: note in parentheses supplied.
28
Tolentino vs. Comelec, 41 SCRA 702, 725; emphasis supplied.
29
36 SCRA 228 234(1970).
414

banning the use of political taped jingles by candidates for Constitutional Convention delegates in the
special 1970 elections,
“the concept of the Constitution as the fundamental law setting forth the criterion for the validity of any
public act whether proceeding from the highest official or the lowest functionary, is a postulate of our
system of government. That is to manifest fealty to the rule of law, with priority accorded to that which
occupies the topmost rung in the legal hierarchy. The three departments of government in the discharge of
the functions with which it is entrusted have no choice but to yield obedience to its commands. Whatever
limits it imposes must be observed. Congress in the enactment of statutes must ever be on guard lest the
restrictions on its authority, whether substantive or formal, be transcended. The Presidency in the
execution of the laws cannot ignore or disregard what it ordains. In its task of applying the law to the facts
as found in deciding cases, the judiciary is called upon to maintain inviolate what is decreed by the
fundamental law.”
This is but to give meaning to the plain and clear mandate of section 15 of the Transitory Provisions
(which allows of no other interpretation) that during the stage of transition the interim National Assembly
alone exercises the constituent power to propose amendements, upon special call therefor. This is
reinforced by the fact that the cited section does not grant to the interim National Assembly the same
power granted to the regular National Assembly of calling a constitutional convention, thus expressing
the will of the Convention (and presumably of the people upon ratification) that if ever the need to
propose amendments arose during the limited period of transition, the interim National Assembly alone
would discharge the task and no constitutional convention could be called for the purpose.
As to the alleged costs involved in convening the interim National Assembly to propose amendments,
among them its own abolition, (P24 million annually in salaries alone for its 400 members at P60,000.00
per annum per member, assuming that its deliberations could last for one year), suffice it to recall this
Court’s pronouncement in Tolentino (in rejecting a similar argument on the costs of holding a plebiscite
separately from the general elections for elective officials) that “it is a matter of public knowledge that
bigger amounts have been spent or thrown to waste for many lesser objectives. xxx xxx xxx Surely, the
amount of seventeen million pesos or
415
VOL. 73, OCTOBER 12, 1976 415

even Constitution more is xxx not too xxx much xxx”
30 a price and that to pay “while for fealty the financial and loyalty costs to of the a separate plebiscite
may be high, it can never be as much as the dangers involved in disregarding clear mandate of the
Constitution, no matter how laudable the objective” and “no consideration of financial costs shall deter Us
from adherence to the requirements of
77/125
the Constitution”.
31
10. The imposition of martial law (and “the problems economic of crisis—a
rebellion, crisis subversion, greater than secession, war”)
32 recession, cited by inflation the majority and
opinion as justifying the concentration of powers in the President, and the recognition now of his
exercising the constituent power to propose behalf of amendments the people”
33
to the Fundamental Law “as agent for and in

In the post-war http://www.central.com.ph/sfsreader/session/00000164a3a59b0889a9c9c3003600fb002c009e/t/?o=False 78/125
has no constitutional Emergency, Powers
33*
basis.
, former Chief Justice Ricardo Paras reaffirmed for the
Court the principle that emergency in itself cannot and should not create power. In our democracy the
hope and survival of the nation lie in the wisdom and unselfish patriotism of all officials and in their
faithful adherence to the Constitution”.
The martial law clause of the 1973 Constitution found in Article IX, Referendum section 12, Cases,
as stressed 34
by the writer in his separate opinion in the “is a verbatim reproduction of Article VII, section 10 (2) of the
1935 Constitution and provides for the imposition of martial law only ‘in case of invasion, insurrection or
rebellion, or imminent danger thereof, when the public safety requires it’ and hence the use of the
legislative power or more accurately ‘military power’ under martial rule is limited to such necessary
rebellion (or measures invasion)”.
as will 35
safeguard the Republic and suppress the
_______________
30
Resolution denying motion for reconsideration dated Nov. 4, 1971, at page 13.
31
Idem, at page 16, fn. 6.
32
Majority opinion, at page 19.
33
Idem, at page 20.
33*
Rodriguez vs. Gella, 92 Phil. 603 (1953); see also Araneta vs. Dinglasan, 84 Phil. 368 (1949).
34
Gonzales vs. Comelec, L-40117, Resolution of Feb. 22, 1975.
35
In re Egan 8 Fed. Cas. 367, holding that “Martial law is neither more nor less than the will of the general in command of the
army. It
416

11. Article XVII, section 3 (2) of the 1973 Constitution which has been held by the majority in the
Referendum Cases to be the recognition or warrant for the exercise of legislative power by the President
during the period of martial law is but a transitory provision. Together with the martial law clause, they
constitute but two provisions which are not to be considered in isolation from the Constitution but as mere
integral parts thereof which must be harmonized consistently with the entire Constitution.
As Cooley restated the rule: “effect is to be given, if possible, to the whole instrument, and to every
section and clause. If different
portions seem to conflict, the courts must harmonize them, if practicable, and must lean in favor of a
construction which will render every word operative, rather than one which may make some words idle
and nugatory.
“This rule is applicable with special force to written constitutions, in which the people will be
presumed to have expressed themselves in careful and measured terms, corresponding with the immense
importance of the powers delegated, leaving as little as possible to implication. It is scarcely conceivable
that a case can arise where a court would be justified in declaring any portion of a written constitution
nugatory because of ambiguity. One part may qualify another so as to restrict its operation, or apply it
otherwise than the natural construction would require if it stood by itself; but one construction part is not
the to two be can allowed be made to defeat to stand another, together.”
if by 36
any reasonable
The transcendental constituent power to propose and approve amendments to the Constitution as well
as set up the machinery and prescribe the procedure for the ratification of his proposals has been withheld
from the President (Prime Minister) as sole repository of the Executive Power, presumably in view of the
immense powers already vested in him by the Constitution but just as importantly, because by the very
nature of the constituent power, such amendments proposals have to be prepared, deliberated and matured
by a deliberative assembly
_______________
overreaches and supersedes, all civil law by the exercise of military power..” as cited in the Secretary of Justice’s outline of a
study on the exercise of Legislative Power by the President under Martial Law, dated Dec. 27, 1972, as reported in Lawyers’
Journal, March 31, 1973 issue, p 90.
36
Cooley’s Constitutional Limitations. 8th Ed., Vol. 1, pp. 128-129.
417
VOL. 73, OCTOBER 12, 1976 417

Sanidad vs. Commission onElections
ofrepresentatives such as the interim National Assembly and hence may not be antithetically entrusted to
one man.
Former Chief Justice Roberto Concepcion had observed before the election of the 1971 Constitutional
Convention that the records of past plebiscites show that the constitutional agency vested with the
exercise of the constituent power (Congress or the Constitutional Convention) really determined the
amendments since the proposals were invariably ratified by
79/125
to the the people,
Constitution
37
thus: “although the people have the

reserved power to ratify or reject the action taken by the Convention, such power is not, in view of the
circumstances attending its exercise, as effective as one might otherwise think; that, despite the requisite
ratification by the people, the actual contents of our fundamental law will really be determined
by the Convention; that, accordingly the people should exercise the greatest possible degree of delegates
thereto xxx xxx xxx”.
circumspection 38
in the election of
12. Martial law concededly does not abrogate the Constitution nor among obliterate the Executive, its
constitutional Legislative boundaries and Judicial and Departments.
allocation of 39
powers
It has thus been aptly observed that “Martial law is an emergency regime, authorized by and subject to
the Constitution. Its basic premise is to preserve and to maintain the Republic against the dangers that
threaten it. Such premise imposes constraints and limitations. For the martial law regime fulfills the
constitutional purpose only if, by reason of martial law measures, the Republic is preserved. If by reason
of such measures the Republic is so transformed that it is changed in its nature and becomes a State other
than republican, then martial law is a failure; worse, martial law would defender have and preserver.”
become the 40
enemy of the Republic rather than its
_______________
37
With the exception of the proposed amendments increasing the membership of the House of Representatives from 120 to
180 and authorizing members of Congress to become Con-Con delegates, which were widely publicized as a result of the court
proceedings and decision in Gonzales vs. Comelec, 21 SCRA 774.
38
“Perspectives and Dimensions of Constitutional Reforms” delivered as keynote speech at the National Conference on
Constitutional Amendments, July 27, 1970.
39
Articles VIII, IX and X, 1973 Constitution.
40
U.P. Professor Perfecto V. Fernandez: Civil Liberties under Martial Law.
418

II. On the question of the Court’s jurisdiction to pass upon the constitutionality of the questioned
presidential decrees: let it be underscored that the Court has long set at rest the question.
The trail was blazed for the Court since the benchmark case of Angara vs. Electoral Commission when
Justice Jose P. Laurel echoed U.S. Chief Justice Marshall’s “climactic phrase” that “we must never forget
that it is a Constitution we are expounding” and declared the Court’s “solemn and sacred” constitutional
obligation of judicial review and laid down the doctrine that the Philippine Constitution as “a definition of
the powers of government” placed upon the judiciary the great burden of “determining the nature, scope
and extent of such powers” and stressed that “when the judiciary mediates to allocate constitutional
boundaries, it does not assert any superiority over the other departments . . . but only asserts the solemn
and sacred obligation entrusted to it by the Constitution to determine conflicting claims of authority under
the Constitution
and to establish for the parties in an actual controversy the rights which the instrument secures and
guarantees to them”.
At the same time, the Court likewise adhered to the constitutional tenet that political questions, i.e.
questions which are intended by the Constitutional and relevant laws to be conclusivelydetermined by the
“political”, i.e.elective, branches of government (namely, Executive and Tolentino
Thus, 43 (bythe in
the Gonzales,
Legislative) 42
(by are outside the Court’s jurisdiction. a unanimous Court) required constitutional majority), the and
Court the 41
in has since consistently ruled that when proposing and approving amendments to the Constitution, the
members of Congress, acting as a constituent assembly or the members of the Constitutional Convention
elected directly for the purpose “do not have the final say on whether or not their acts are within or
beyond constitutional limits. Otherwise, they could brush aside and set the same at naught, contrary to the
basic tenet that ours is a government of laws, not of men, and to the rigid nature of
_______________
41
Louis H. Pollale: The Constitution and the Supreme Court, Vol. I, page 191.
42
Supra, fn. 16.
43
Supra, fn. 28.
419
VOL. 73, OCTOBER 12, 1976 419

our Constitution. Such rigidity is stressed by the fact that, the Constitution expressly confers upon the
Supreme Court, the power to character declare of a treaty-making treaty unconstitutional, power”. 44
despite the eminently political
vs. As Executive amplified Secretary
by former 45
(by Chief a majority Justice vote), Concecption “when in Javellana the grant of power is qualified,
conditional or subject to limitations, the issue on whether or not the prescribed qualifications or
conditions have been met, or the limitations respected, is justiciable or non-political, the crux of the
problem being one of legality or validity of the contested act, not its wisdom. Otherwise, said
qualifications, conditions and limitations-particularly those prescribed or imposed by the Constitution-
would be set at naught”.
The fact that the proposed amendments are to be submitted to the people for ratification by no means
makes the question political and non-justiciable, since as stressed even in Javellana, the issue of validity
of the President’s proclamation of ratification of the 1973 Constitution presented a justiciable and non-
political question.
Stated otherwise, the question of whether the Legislative acting as a constituent assembly or the
Constitutional Convention called for the purpose, in proposing amendments to the people for ratification
followed the constitutional procedure andrequirements on the
amending process is perforce a justiciable question and does not raise a political question of policy or
wisdom of the proposed amendments, which if properly submitted, are reserved for the people’s decision.
The substantive question presented in the case at bar of whether the President may legally exercise the
constituent power vested in the interim National Assembly (which has not been granted to his office) and
propose constitutional amendments is preeminently a justiciable issue.
Justice Laurel in Angara had duly enjoined that “in times of social disquietude or political excitement,
the great landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated. In
cases of conflict, the judicial department is the only constitutional organ which can be called upon to
_______________
44
Sec Art. VIII, sec. 2, 1935 Constitution; Art. X, sec. 5, 1973 Constitution.
45
50 SCRA 30 (1973) and cases cited.
420

Sanidad vs. Commission onElections
determine the proper allocation of powers between the several departments and among the integral or
constituent units thereof”.
To follow the easy way out by disclaiming jurisdiction over the issue as a political question would be
judicial abdication.
III. On the question of whether there is a sufficient and proper submittal of the proposed amendments
to the people: Prescinding from the writer’s view of the nullity of the questioned decrees for lack of
authority on the President’s part to exercise the constituent power, I hold that the doctrine of fair and
proper submission first enunciated by a simple majority of six Justices in Gonzales and subsequently
officially adopted by the required constitutional two- thirds majority of the Court in Tolentino is
controlling in the case at bar.
1. There cannot be said to be fair and proper submission of the proposed amendments. As ruled by this
Court in Tolentino, where “the proposed amendment in question is expressly saddled with reservations
which naturally impair, in great measure, its very essence as a proposed constitutional amendment” and
where “the way the proposal is worded, read together with the reservations tacked to it by the Convention
thru Section 3 of the questioned resolution, it is too much of a speculation to assume what exactly the
amendment would really amount to in the end. All in all, as already pointed out in our discussion of
movants’ first ground, if this kind of amendment is allowed, the Philippines will appear before the world
to be in the absurd position of being the only country with a
constitution containing a provision so ephemeral no one knows until when it will be actually in force”,
there can be no proper submission. In Tolentino a solitary amendment reducing the voting age to 18 years
was struck down by this Court which ruled that “in order that a plebiscite for the ratification of an
amendment to the Constitution may be validly held, it must provide the voter not only sufficient time but
ample basis for an intelligent appraisal of the nature of the amendment per se as well as its relation to the
other parts of the Constitution with which it has to form a harmonious whole,” and that there was no
proper submission “wherein the people are in the dark as to frame of reference they can base their
judgment on”.
421
VOL. 73, OCTOBER 12, 1976 421

2. members
The now 46
graphically Chief Justice pointed and out Mr. in Justice their joint Makasiar separate with opinion two
other that the solitary question “would seem to be uncomplicated and innocuous. be simple may But turn
it is out one not of to life’s be so verities simple that after things all”.
47 which appear to
They further expressed “essential agreement” with Mr. Justice Conrado V. Sanchez’ separate opinion
in Gonzales “on the minimum requirements that must be met in order that there can be a proper
submission to the people of a proposed constitutional amendment” which reads thus:
“xxx xxx xxx we take the view that the words ‘submitted to the people for their ratification’, if construed in the light
of the nature of the Constitution a fundamental charter that is legislation direct from the people, an expression of
their sovereign will—is that it can only be amended by the people expressing themselves according to the procedure
ordained by the Constitution. Therefore, amendments must be fairly laid before the people for their blessing or
spurning. The people are not to be mere rubber stamps. They are not to vote blindly. They must be afforded ample
opportunity to mull over the original provisions, compare them with the proposed amendments, and try to reach a
conclusion as the dictates of their conscience suggest, free from the incubus of extraneous or possibly insidious
influences. We believe the word ‘submitted’ can only mean that the government, within its maximum capabilities,
should strain every effort to inform every citizen of the provisions to be amended, and the proposed amendments
and the meaning, nature and effects thereof. By this, we are not to be understood as saying that, if one citizen or 100
citizens or 1,000 citizens cannot be reached, then there is no submission within the meaning of the word as intended
by the framers of the Constitution. What the Constitution in effect directs is that the government, in submitting an
amendment for ratification, should put every instrumentality or agency within its structural framework to enlighten
the people, educate them with respect to their act of ratification or rejection. For, as we have earlier stated, one thing
is submissionand another is ratification.There must be fair
submission, intelligent, consent or rejection. If with all these safeguards the people still approve the amendment no
matter how prejudicial it is to them, then so be it. For the people decree their own fate.”
48
_______________
46
Now retired Justices J.B.L. Reyes and Calixto O. Zaldivar.
47
41 SCRA at p. 733.
48
21 SCRA at pages 816-817, emphasis copied.
422

Justice Sanchez therein ended the passage with an apt citation that “xxx xxx xxx The great men who
builded the structure of our state in this respect had the mental vision of a good Constitution voiced by
Judge Cooley, who has said ‘A good Constitution should be beyond the reach of temporary excitement
and popular caprice or passion. It is needed for stability and steadiness; it must yield to the thought of the
people; not to the whim of the people, or the thought evolved in excitement or hot blood, but the sober
second thought, which alone, if the government is to be safe, can be allowed efficiency, xxx xxx xxx
Changes in government are to be feared unless the benefit is certain.As Montaign says: ‘Al1 great
mutations shake another and evil disorder may succeed a state. and Good a worse’.”
does not 49
necessarily succeed evil;
Justice Sanchez thus stated the rule that has been adopted by the Court in Tolentino thatthere is no
proper submission “if the people are not sufficiently informed of the amendments to be voted upon, to
conscientiously manner. xxx xxx deliberate xxx.”
50
thereon, to express their will in a genuine

3. From the complex and complicated proposed amendments set forth in the challenged decree and the
plethora of confused and confusing clarifications reported in the daily newspapers, it is manifest that there
is no proper submission of the proposed amendments.
Nine (9) proposed constitutional amendments were officially proposed and made known as per
Presidential Decree No. 1033 dated September 22, 1976 for submittal at the “referendumplebiscite” called
for this coming Saturday, October 16, 1976 vote 51 wherein notwithstanding the 15-year their
84/125
and under 18-year-olds are enjoined lack of qualification under Article VI to of the Constitution.
Former Senator Arturo Tolentino, an acknowledged parliamentarian of the highest order, was reported
by the newspapers last October 3 to have observed that “there is no
_______________
49
From Am. Law Review, 1889, p. 311, citing Ellingham vs. Dye, 99 N.E. pp. 4, 15; emphasis copied.
50
21 SCRA at p. 817.
51
Phil. Daily Express issue of Oct. 11, 1976 reporting the Comelec’s stand that “Young voters, from age 15 to below 18 can
vote not only on the question of martial law but also on the question regarding the proposed constitutional amendments”.
423
VOL. 73, OCTOBER 12, 1976 423

urgency in approving the proposed amendments to the Constitution and suggested that the question
regarding charter changes be modified instead of asking the people to vote on hurriedly prepared
amendments”. He further pointed out that “apart from lacking the parliamentary style in the body of the
Constitution, they do not indicate amended”.
what 52
particular provisions are being repealed or
As of this writing, October 11, 1976, the papers today reported his seven-page analysis questioning
among others the proposed granting of dual legislative powers to both the President and the Batasang
Pambansa and remarking that “This dual legislative authority questions”.
can 53
give rise to confusion and serious constitutional
Aside from the inadequacy of the limited time given for the people’s consideration of the proposed
amendments, there can be no proper submission because the proposed amendments are not in proper form
and violate the cardinal rule of amendments of written constitutions that the specific provisions of the
Constitution being repealed or amended as well as how the specific provisions as amended would read,
should be clearly stated in careful and measured terms. There can be no proper submission because the
vagueness and ambiguity of the proposals do not sufficiently inform the people of the amendments for
conscientious deliberation and intelligent consent or rejection.
4. While the press and the Solicitor General at the nearing have stated that the principal thrust of the
proposals is to substitute the interim National Assembly with an interim Batasang Pambansa, a serious
study thereof in detail would lead to the conclusion that the whole context of the 1973 Constitution proper
would be affected and grave amendments and modifications thereof would apparently be made, among
others, as follows:
Under Amendment No. 1, the qualification age of members of the interim Batasang Pambansa is
reduced to 18 years;
Under Amendment No. 2, the treaty-concurring power of the Legislature is withheld from the interim
Batasang Pambansa;
Under Amendment No. 3, notwithstanding the convening of the interim Batasang Pambansa within 30
days from the
_______________
52
Phil. Daily Express issue of Oct. 3, 1976.
53
Times Journal and Phil. Daily Express issues of Oct. 11, 1976.
424

election and selection of the members (for which there is no fixed date) the incumbent President
apparently becomes a regular President and Prime Minister (not ad interim);
Under Amendment No. 4, the disqualifications imposed on members of the Cabinet in the Constitution
such as the prohibition against the holding of more than one office in the government including
government-owned or controlled corporations would appear to be eliminated, if not prescribed by the
President;
Under Amendment No. 5, the President shall continue to exercise legislative powers until martial law
is lifted;
Under Amendment No. 6, there is a duality of legislative authority given the President and the interim
Batasang Pambansa as well as the regular National Assembly, as pointed out by Senator Tolentino, with
the President continuing to exercise legislative powers in case of “grave emergency or a threat or
imminence thereof (without definition of terms) or when said Assemblies “fail or are unable to act
adequately on any matter for any reason that in his judgment requires immediate action”, thus radically
affecting provisions of the Constitution governing the said departments;
Under Amendment No. 7, the barangays and Sanggunians would apparently be institutionalized,
although their functions, powers and composition may be altered by law. Referendums (which are not
authorized in the present 1973 Constitution) would also be constitutionalized, giving rise to the possibility
fraught with grave consequences, as acknowledged at the hearing, that amendments to the Constitution
may thereafter be effected by referendum, rather than by the rigid and strict amending process provided
presently in Article XVI of the Constitution;
Under Amendment No. 8, there is a general statement in general that the unspecified provisions of the
Constitution “not inconsistent with any of these amendments” shall continue in full force and effect; and
Under Amendment No. 8the incumbent President is authorized to proclaim the ratification of the
amendments by the majority of votes cast.
It has likewise been stressed by the officials concerned that the proposed amendments come in a
package and may not be voted upon separately but on an “all or nothing” basis.
5. Whether the people can normally express their will in a
425
VOL. 73, OCTOBER 12, 1976 425


genuine manner and with due circumspection on the proposed amendments amidst the constraints of
martial law is yet another question. That a period of free debate and discussion has to be declared of itself
shows the limitations on free debate and discussion. The facilities for free debate and discussion over the
mass media, print and otherwise are wanting. The President himself is reported to have observed the
timidity of the media under martial law and opposition.”
to 54
have directed the press to air the views of the
Indeed, the voice of the studentry as reflected in the editorial of the Philippine Collegian issue of
September 23, 1976 comes as a welcome and refreshing model of conscientious deliberation, as our youth
analyzes the issues “which will affect generations yet to come” and urge the people to “mull over the pros
and cons very carefully”, as follows:
“THE REFERENDUM ISSUES
“On October 16, the people may be asked to decide on two important national issues—the creation of a new
legislative body and the lifting of martial law.
“On the first issue, it is almost sure that the interim National Assembly will not be convened, primarily because
of its membership. Majority of the members of the defunct Congress, who are mandated by the Constitution to
become members of the interim National Assembly, have gained so widespread a notoriety that the mere mention of
Congress conjures the image of a den of thieves who are out to fool the people most of the time. Among the three
branches of government, it was the most discredited. In fact, upon the declaration of martial law, some people were
heard to mutter that a ‘regime that has finally put an end to such congressional shenanigans could not be all that
bad’.
“A substitute legislative body is contemplated to help the President in promulgating laws, and perhaps minimize
the issuance of ill-drafted decrees which necessitate constant amendments. But care should be taken that this new
legislative body would not become a mere rubber stamp akin to those of other totalitarian countries. It should be
given real powers, otherwise we will just have another
_______________
54 In the Bulletin Today issue of October 2, 1976, the President is quoted as himself
abstaining from the debates: “I am trying to steer clear of the debates because it involves
martial law, and it involves, of course, me personally. So the less I say about it, the better, I
guess, from my point of view”.
426
nebulous creation having the form but lacking the substance. Already the President has expressed the desire that
among the powers he would like to have with regard to the proposed legislative body is that of abolishing it in case
‘there is a need to do so’. As to what would occasion such a need, only the President himself can determine. This
would afford the Chief Executive almost total power over the legislature, for he could always offer the members
thereof a carrot and a stick.
“On the matter of lifting martial law, the people have expressed ambivalent attitudes. Some of them,
remembering the turmoil that prevailed before the declaration of martial law, have expressed the fear that its lifting
might precipitate the revival of the abuses of the past, and provide an occasion for evil elements to resurface with
their usual tricks. Others say that it is about time martial law was lifted, since the peace and order situation has
already stabilized and the economy seems to have been perked up.
“The regime of martial law has been with us for four years now. No doubt, martial law has initially secured some
reforms for the country. The people were quite willing to participate in the new experiment, thrilled by the novelty
of it all. After the euphoria, however, the people seem to have gone back to the old ways, with the exception that
some of our freedoms were taken away, and an authoritarian regime established.
“We must bear in mind that martial law was envisioned only to cope with an existing national crisis. It was not
meant to be availed of for a long period of time, otherwise it would undermine our adherence to a democratic form
of government. In the words of the Constitution, martial law shall only be declared in times of ‘rebellion,
insurrection, invasion, or imminent danger thereof, when the public safety requires it’. Since we no longer suffer
from internal disturbances of a gargantuan scale, it is about time we seriously rethink the ‘necessity’ of prolonging
the martial law regime. If we justify the continuance of martial law by economic or other reasons other than the
foregoing constitutional grounds, then our faith in the Constitution might be questioned. Even without martial law,
the incumbent Chief Executive still holds vast powers under the Constitution. After all, the gains of the New Society
can be secured without sacrificing the freedom of our people. If the converse is true, then we might have to conclude
that the Filipinos deserve a dictatorial form of government. The referendum results will show whether the people
themselves have adopted this sad conclusion.
“The response of the people to the foregoing issues will affect generations yet to come, so they should mull over
the pros and cons very carefully.”
6. This opinion is written in the same spirit as the
427
VOL. 73, OCTOBER 12, 1976 427

President’s exhortations on the first anniversary of proclamation of the 1973 Constitution that we “let the
Constitution remain firm and stable” so that it may “guide the people”, and that we “remain
steadfast on the rule of law and the Constitution” as he recalled his rejection of the “exercise (of) power
that can be identified merely with a revolutionary government” that makes its own law, thus:
“x x x Whoever he may be and whatever position he may happen to have, whether in government or outside
government, it is absolutely necessary now that we look solemnly and perceptively into the Constitution and try to
discover for ourselves what our role is in the successful implementation of that Constitution. With this thought,
therefore, we can agree on one thing and that is: Let all of us age, let all of us then pass away as a pace in the
development of our country, but let the Constitution remain firm and stable, and let institutions grow in strength
from day to day, from achievement to achievement, and so long as that Constitution stands, whoever may the man in
power be, whatever may his purpose be, that Constitution will guide the people and no man, however, powerful he
may be, will dare to destroy and wreck the foundation of such a Constitution.
“These are the reasons why I personally, having proclaimed martial law, having been often induced to exercise
power that can be identified merely with a revolutionary government, have remained steadfast on the rule of law and
the Constitution.”
54*
IV. A final word on the Court’s resolution of October 5, 1976 which in reply to the Comelec query
allowed by a vote of 7 to 3, judges of all courts, after office hours, “to accept invitations to act as resource
speakers under Section 5 of Presidential Decree No. 991, as amended, as well as to take sides in
discussions and debates on the referendum-plebiscite Decree.”
55
questions under Section 7 of the same

The writer with Mr. Justice Makasiar and Madame Justice Muñoz Palma had dissented from the
majority resolution, with all due respect, on the ground that the non-participation of
_______________
54*
Pres. Marcos’ address on observance of the first anniversary of the 1973 Constitution on Jan. 17, 1974; Phil. Labor
Relations Journal, Vol. VII, Jan, 1974, p. 6.
55
The resolution gave the same permission to court personnel by a 9 to 1 vote with Justice Makasiar and the writer presenting
no objection in the case of personnel as classified civil service employees, while Justice Muñoz Palma maintained the same
negative vote.
428

judges in such public discussions and debates on the referendum- plebiscite questions would preserve the
traditional non-involvement of the judiciary in public discussions of controversial issues. This is essential
for the maintenance and enhancement of the people’s faith and confidence in the judiciary.The questions
of the validity of the scheduled referendum-plebiscite and of whether there is proper
submission of the proposed amendments were precisely sub-judice by virtue of the cases at bar.
The lifting of the traditional inhibition of judges from public discussion and debate might blemish the
image and independence of the judiciary. Aside from the fact that the fixing of a time limit for the
acceptance of their courtesy resignations to avoid an indefinite state of insecurity of their tenure in office
still pends, litigants and their relatives and friends as well as a good sector of the public would be hesitant
to air views contrary to that of the Judge.
Justices Makasiar and Muñoz Palma who share these views have agreed that we make them of record
here, since we understand that the permission given in the resolution is nevertheless addressed to the
personal decision and conscience of each judge, and these views may be of some guidance to them.
BARREDO, J.: Concurring —
While I am in full agreement with the majority of my brethren that the herein petitions should be
dismissed, as in fact I vote for their dismissal, I deem it imperative that I should state separately the
considerations that have impelled me to do so.
Perhaps, it is best that I should start by trying to disabuse the minds of those who have doubts as to
whether or not I should have taken part in the consideration and resolution of these cases. Indeed, it would
not be befitting my position in this Highest Tribunal of the land for me to leave unmentioned the
circumstances which have given cause, I presume, for others to feel apprehensive that my participation in
these proceedings might detract from that degree of faith in the impartiality that the Court’s judgment
herein should ordinarily command. In a way, it can be said, of course, that I am the one most responsible
for such a rather problematical situation, and it is precisely for
429
VOL. 73, OCTOBER 12, 1976 429

this reason that I have decided to begin this opinion with a discussion of why I have not inhibited myself,
trusting most confidently that what I have to say will be taken in the same spirit of good faith, sincerity
and purity of purpose in which I am resolved to offer the same.
Plain honesty dictates that I should make of record here the pertinent contents of the official report of
the Executive Committee of the Katipunan ng mga Sanggunian submitted to the Katipunan itself about
the proceedings held on August 14, 1976. It is stated in that public document that:
“THE ISSUE WITH REGARDS TO THE CONVENING OF A LEGISLATIVE body came out when the President
expressed his desire to share his powers with other people.
Aware of this, a five-man Committee members of the Philippine Constitution Association (PHILCONSA)
headed by Supreme Court Justice Antonio Barredo proposed on July 28, the establishment of ‘Sangguniang
Pambansa’ or ‘Batasang Pambansa’ which would help the President in the performance of his legislative functions.
The proposed new body will take the place of the interim National Assembly which is considered not practical to
convene at this time considering the constitution of its membership.
Upon learning the proposal of Justice Barredo, the country’s 42,000 barangay assemblies on August 1 suggested
that the people be consulted on a proposal to create a new legislative body to replace the interim assembly provided
for by the Constitution. The suggestion of the barangay units was made through their national association,
Pambansang Katipunan ng mga Barangay headed by Mrs. Nora Z. Petines. She said that the people have shown in at
least six instances including in the two past referenda that they are against the convening of the interim National
Assembly. She also said that since the people had ruled out the calling of such assembly and that they have once
proposed that the President create instead the Sangguniang Pambansa or a legislative advisory body, then the
proposal to create a new legislative must necessarily be referred to the people.
The federation of Kabataang Barangay, also numbering 42,000 units like their elder counterparts in the
Katipunan ng mga Barangay also asserted their own right to be heard on whatever plans are afoot to convene a new
legislative body.
On August 6, a meeting of the national directorate of PKB was held to discuss matters pertaining to the stand of
the PKB with regards to the convening of a new legislative body. The stand of the PKB is to create a legislative
advisory council in place of the old assembly. Two days after, August 8, the Kabataang Barangay held a symposium
and made a stand which is the creation of a body with full legislative powers.
430
A nationwide clamor for the holding of meeting in their respective localities to discuss more intellegently the
proposal to create a new legislative body was made by various urban and rural Sangguniang Bayans. Numerous
requests made by some members coming from 75 provincial and 61 city SB assemblies, were forwarded to the
Department of Local Government and Community Development (DLGCD).
On August 7, Local Government Secretary, Jose A. Roño granted the request by convening the 91 member
National Executive Committee of the Pambansang Katipunan ng mga Sanggunian on August 14 which was held at
Session Hall, Quezon City. Invited also to participate were 13 Regional Federation Presidents each coming from the
PKB and the PKKB.”
Actually, the extent of my active participation in the events and deliberations that have culminated in the
holding of the proposed referendum-plebiscite on October 16, 1976, which petitioners are here seeking to
enjoin, has been more substantial and meaningful than the above report imparts. Most importantly, aside
from being
probably the first person to publicly articulate the need for the creation of an interim legislative body to
take the place of the interim National Assembly provided for in the Transitory Provisions of the
Constitution, as suggested in the above report, I might say that I was the one most vehement and
persistent in publicly advocating and urging the authorities concerned to directly submit to the people in a
plebiscite whatever amendments of the Constitution might be considered necessary for the establishment
of such substitute interim legislature. In the aforementioned session of the Executive Committee of the
Katipunan, I discoursed on the dispensability of a new interim legislative body as the initial step towards
the early lifting of martial law and on the fundamental considerations why in our present situation a
constitutional convention would be superfluous in amending the Constitution.
Moreover, it is a matter of public knowledge that in a speech I delivered at the Coral Ballroom of the
Hilton Hotel in the evening of August 17, 1976, I denounced in no uncertain terms the plan to call a
constitutional convention. I reiterated the same views on September 7, 1976 at the initial conference
called by the Comelec in the course of the information and educational campaign it was enjoined to
conduct on the subject. And looking back at the subsequent developments up to September 22, 1976,
431
VOL. 73, OCTOBER 12, 1976 431

when the Batasang Bayan approved and the President signed the now impugned Presidential Decree No.
1033, it is but human for me to want to believe that to a certain extent my strong criticisms and resolute
stand against any other alternative procedure of amending the Constitution for the purpose intended had
borne fruit.
I must hasten to add at this point, however, that in a larger sense, the initiative for all I have done, was
not altogether mine alone. The truth of the matter is that throughout the four years of this martial law
government, it has always been my faith, as a result of casual and occasional exchanges of thought with
President Marcos, that when the appropriate time does come, the President would somehow make it
known that in his judgment, the situation has already so improved as to permit the implementation, if
gradual, of the constitutionally envisioned evolution of our government from its present state to a
parliamentary one. Naturally, this would inevitably involve the establishment of a legislative body to
replace the abortive interim National Assembly. I have kept tract of all the public and private
pronouncements of the President, and it was the result of my reading thereof that furnished the immediate
basis for my virtually precipitating, in one way or another, the materialization of the forthcoming
referendum-plebiscite. In other words, in the final analysis, it was the President’s own attitude on the
matter that made it opportune for me to articulate my own feelings and ideas as
to how the nation can move meaningfully towards normalization and to publicly raise the issues that have
been ventilated by the parties in the instant cases.
I would not be human, if I did not consider myself privileged in having been afforded by Divine
Providence the opportunity to contribute a modest share in the formulation of the steps that should lead
ultimately to the lifting of martial law in our country. Indeed, I am certain every true Filipino is anxiously
looking forward to that eventuality. And if for having voiced the sentiments of our people, where others
would have preferred to be comfortably silent, and if for having made public what every Filipino must
have been feeling in his heart all these years, I should be singled out as entertaining such preconceived
opinions regarding the issues before the Court in the cases at bar as to preclude me from taking part in
their disposition, I can only say that I do not believe there is any other Filipino in and out of the Court
today who is not equally situated as I am.
432

The matters that concern the Court in the instant petitions do not involve merely the individual interests of
any single person or group of persons. Besides, the stakes in these cases affect everyone commonly, not
individually. The current of history that has passed through the whole country in the wake of martial law
has-swept all of us, sparing none, and the problem of national survival and of restoring democratic
institutions and ideals is seeking solution in the minds of all of us. That I have preferred to discuss
publicly my own thoughts on the matter cannot mean that my colleagues in the Court have been
indifferent and apathetic about it, for they too are Filipinos. Articulated or not, all of us must have our
own preconceived ideas and notions in respect to the situation that confronts the country. To be sure, our
votes and opinions in the major political cases in the recent past should more or less indicate our
respective basic positions relevant to the issues now before Us. Certainly, contending counsels cannot be
entirely in the dark in this regard. I feel that it must have been precisely because of such awareness that
despite my known public participation in the discussion of the questions herein involved, none of the
parties have sought my inhibition or disqualification.
Actually, although it may be difficult for others to believe it, I have never allowed my preconceptions
and personal inclinations to affect the objectivity needed in the resolution of any judicial question before
the Court. I feel I have always been able to appreciate, fully consider and duly weigh arguments and
points raised by all counsels, even when they conflict with my previous views. I am never beyond being
convinced by good and substantial ratiocination. Nothing has delighted me more than to discover that
somebody else has thought of more weighty arguments refuting my own, regardless of what or whose
interests are at stake. I would not have accepted my position in the Court had I felt I would not be able to
be above my personal prejudices. To my mind, it is not that a judge has preconceptions that counts, it is
his capacity and readiness to absorb contrary views that are indispensable for justice to prevail. That
suspicions of pre-judgment may likely arise is unavoidable; but I have always maintained that whatever
improper factors might influence a judge will unavoidably always appear on the face of the decision. In
any event, is there better guarantee of justice when the preconceptions of a judge are concealed?
433
VOL. 73, OCTOBER 12, 1976 433

Withal, in point of law, I belong to the school of thought that regards members of the Supreme Court as
not covered by the general rules relative to disqualification and inhibition of judges in cases before them.
If I have in practice actually refrained from participating in some cases, it has not been because of any
legal ground founded on said rules, but for purely personal reasons, specially because, anyway, my vote
would not have altered the results therein.
It is my considered opinion that unlike in the cases of judges in the lower courts, the Constitution does
not envisage compulsory disqualification or inhibition in any case by any member of the Supreme Court.
The Charter establishes a Supreme Court “composed of a Chief Justice and fourteen Associate Justices”,
with the particular qualifications therein set forth and to be appointed in the manner therein provided.
Nowhere in the Constitution is there any indication that the legislature may designate by law instances
wherein any of the justices should not or may not take part in the resolution of any case, much less who
should take his place. Members of the Supreme Court are definite constitutional officers; it is not within
the power of the lawmaking body to replace them even temporarily for any reason. To put it the other
way, nobody who has not been duly appointed as a member of the Supreme Court can sit in it at any time
or for any reason. The Judicial power is vested in the Supreme Court composed as the Constitution
ordains—that power cannot be exercised by a Supreme Court constituted otherwise. And so, when as in
the instant cases where, if any of the member of Court is to abstain from taking part, there would be no
quorum—and no court to render the decision—it is the ineludible duty of all the incumbent justices to
participate in the proceedings and to cast their votes, considering that for the reasons stated above, the
provisions of Section 9 of the Judiciary Act do not appear to conform with the concept of the office of
Justice of the Supreme Court contemplated in the Constitution.
The very nature of the office of Justice of the Supreme Court as the tribunal of last resort and bulwark
of the rights and liberties of
all the people demands that only one of dependable and trustworthy probity should occupy the same.
Absolute integrity, mental and otherwise, must be possessed by everyone who is appointed thereto. The
moral character of every member of the Court must be assumed to be such that in no case whatsoever,
regardless of the issues and the parties involved,
434

may it be feared that anyone’s life, liberty or property, much less the national interests, would ever be in
jeopardy of being unjustly and improperly subjected to any kind of judicial sanction. In sum, every
Justice of the Supreme Court is expected to be capable of rising above himself in every case and of
having full control of his emotions and prejudices, such that with the legal training and experience he
must of necessity be adequately equipped with, it would be indubitable that his judgment cannot be but
objectively impartial, Indeed, even the appointing power, to whom the Justices owe their positions,
should never hope to be unduly favored by any action of the Supreme Court. All appointments to the
Court are based on these considerations, hence the ordinary rules on inhibition and disqualification do not
have to be applied to its members.
With the preliminary matter of my individual circumstances out of the way, I shall now address myself
to the grave issues submitted for Our resolution.
-I-
In regard to the first issue as to whether the questions posed in the petitions herein are political or
justiciable, suffice it for me to reiterate cases,
1
thus:
the fundamental position I took in the Martial Law
“As We enter the extremely delicate task of resolving the grave issues thus thrust upon Us. We are immediately
encountered by absolute verities to guide Us all the way. The first and most important of them is that the
Constitution (Unless expressly stated otherwise, all references to the Constitution in this discussion are to both the
1935 and 1973 charters, since, after all, the pertinent provisions are practically identical in both.) is the supreme law
of the land. This means among other things that all the powers of the government and of all its officials from the
President down to the lowest emanate from it. None of them may exercise any power unless it can be traced thereto
either textually or by natural and logical implication.
“The second is that it is settled that the Judiciary provisions of the Constitution point to the Supreme Court as the
ultimate arbiter of all conflicts as to what the Constitution or any part thereof means. While the other Departments
may adopt their own construction thereof, when such
construction is challenged by the proper party in an appropriate case wherein a decision would be impossible
without
_______________
1 Aquino, J. vs. Ponce Enrile and other cases, 59 SCRA 183.
435
VOL. 73, OCTOBER 12, 1976 435
determining the correct construction, the Supreme Court’s word on the matter controls.
‘x x x x x x x x “x x x x x x x x
“The fifth is that in the same manner that the Executive power conferred upon the Executive by the Constitution
is complete, total and unlimited, so also, the judicial power vested in the Supreme Court and the inferior courts, is
the very whole of that power, without any limitation or qualification.
“‘x x x x x x x “‘x x x x x x x
“From these incontrovertible postulates, it results, first of all, that the main question before Us is not in reality
one of jurisdiction, for there can be no conceivable controversy, especially one involving a conflict as to the correct
construction of the Constitution, that is not contemplated to be within the judicial authority of the courts to hear and
decide. The judicial power of the courts being unlimited and unqualified, it extends over all situations that call for
the ascertainment and protection of the rights of any party allegedly violated, even when the alleged violator is the
highest official of the land or the government itself. It is, therefore, evidence that the Court’s jurisdiction to take
cognizance of and to decide the instant petitions on their merits is beyond challenge.
“In this connection, however, it must be borne in mind that in the form of government envisaged by the framers
of the Constitution and adopted by our people, the Court’s indisputable and plenary authority to decide does not
necessarily impose upon it the duty to interpose its fiat as the only means of settling the conflicting claims of the
parties before it. It is ingrained in the distribution of powers in the fundamental law that hand in hand with the
vesting of the judicial power upon the Court, the Constitution has coevally conferred upon it the discretion to
determine, in consideration of the constitutional prerogatives granted to the other Departments, when to refrain from
imposing judicial solutions and instead defer to the judgment of the latter. It is in the very nature of republican
governments that certain matters are left in the residual power of the people themselves to resolve, either directly at
the polls or thru their elected representatives in the political Departments of the government. And these reserved
matters are easily distinguishable by their very nature, when one studiously considers the basic functions and
responsibilities entrusted by the charter to each of the great
Departments of the government. To cite an obvious example, the protection, defense and preservation of the state
against internal or external aggression threatening its very existence is far from being within the ambit of judicial
responsibility. The distinct role then of the Supreme Court of
436
being the final arbiter in the determination of constitutional controversies does not have to be asserted in such
contemplated situations, thereby to give way to the ultimate prerogative of the people articulated thru suffrage or
thru the acts of their political representatives they have elected for the purpose.
Indeed, these fundamental considerations are the ones that lie at the base of what is known in American
constitutional law as the political question doctrine, which in that jurisdiction is unquestionably deemed to be part
and parcel of the rule of law, exactly like its apparently more attractive or popular opposite, judicial activism, which
is the fullest exertion of judicial power, upon the theory that unless the courts intervene injustice might prevail. It
has been invoked and applied by this Court in varied forms and mode, of projection in several momentous instances
in the past. (Barcelon vs. Baker, 5 Phil. 87; Severino vs. Governor-General, 16 Phil. 366; Abueva vs. Wood, 45 Phil.
612; Alejandrino vs. Quezon, 46 Phil. 85; Vera vs. Avelino, 77 Phil. 192; Mabanag vs. Lopez Vito, 78 Phil. 1;
Cabili vs. Francisco, 88 Phil. 654; Montenegro vs. Castañeda, 91 Phil 882; Santos vs. Yatco, 55 O.G. 8641 [Minute
Resolution of Nov. 6, 1959]; Osmeña vs. Pendatun, Oct. 28, 1960.) and it is the main support of the stand of the
Solicitor General on the issue of jurisdiction in the cases at bar. It is also referred to as the doctrine of judicial self-
restraint or abstention. But as the nomenclatures themselves imply, activism and self-restraint are both subjective
attitudes, not inherent imperatives. The choice of alternatives in any particular eventuality is naturally dictated by
what in the Court’s considered opinion is what the Constitution envisions should be done in order to accomplish the
objectives of government and of nationhood. And perhaps it may be added here to avoid confusion of concepts, that
We are not losing sight of the traditional approach based on the doctrine of separation of powers. In truth, We
perceive that even under such mode of rationalization, the existence of power is secondary, respect for the acts of a
co-ordinate, co-equal and co-independent Department being the general rule, particularly when the issue is not
encroachment of delimited areas of functions but alleged abuse of a Department’s own basic prerogatives. (59
SCRA, pp. 379-383.)
Applying the foregoing considerations to the cases at bar, I hold that the Court has jurisdiction to pass on
the merits of the various claims of petitioners. At the same time, however, I maintain that the basic nature
of the issues herein raised requires that the Court should exercise its constitutionally endowed prerogative
to refrain from exerting its judicial authority in the premises.
Stripped of incidental aspects, the constitutional problem that confronts Us stems from the absence of
any clear and
437
VOL. 73, OCTOBER 12, 1976 437

definite express provision in the Charter applicable to the factual milieu herein involved. The primary
issue is, to whom, under the circumstances, does the authority to propose amendments to the Constitution
property belong? To say, in the light of Section 15 of Article XVII of the Charter, that that faculty lies in
the interim National Assembly is to beg the main question. Indeed, there could be no occasion for doubt
or debate, if it could only be assumed that the interim National Assembly envisaged in Sections 1 and 2 of
the same Article XVII may be convoked. But precisely, the fundamental issue We are called upon to
decide is whether or not it is still constitutionally possible to convene that body. And relative to that
question, the inquiry centers on whether or not the political developments since the ratification of the
Constitution indicate that the people have in effect enjoined the convening of the interim National
Assembly altogether. On this score, it is my assessment that the results of the referenda of January 10-15,
1973, July 27-28, 1973 and February 27, 1975 clearly show that the great majority of our people, for
reasons plainly obvious to anyone who would consider the composition of that Assembly, what with its
more than 400 members automatically voted into it by the Constitutional Convention together with its
own members, are against its being convoked at all.
Whether or not such a manifest determination of the sentiments of the people should be given effect
without a formal amendment of the Constitution is something that constitutional scholars may endlessly
debate on. What cannot be disputed, however, is that the government and the nation have acquiesced to it
and have actually operated on the basis thereof. Proclamation 1103 which, on the predicate that the
overwhelming majority of the people desire that the interim Assembly be not convened, has ordained the
suspension of its convocation, has not been assailed either judicially or otherwise since the date of its
promulgation on January 17, 1973.
In these premises, it is consequently the task of the Court to determine what, under these
circumstances, is the constitutional relevance of the interim National Assembly to any proposal to amend
the Constitution at this time. It is my considered opinion that in resolving that question, the Court must
have to grapple with the problem of what to do with the will of the people, which although manifested in
a manner not explicitly provided for in the Constitution, was nevertheless official, and reliable, and what
is more important clear and
438

unmistakable, despite the known existence ofwell-meaning, if insufficiently substantial dissent. Such
being the situation, I hold that it is not proper for the Court to interpose its judicial authority against the
evident decision of the people and should leave it to the political department of the government to devise
the ways and means of resolving the resulting problem of how to amend the Constitution, so long as in
choosing the same, the ultimate constituent power is left to be exercised by the people themselves in a
well-ordered plebiscite as required by the fundamental law.
-2-
Assuming We have to inquire into the merits of the issue relative to the constitutional authority behind the
projected amendment of the Charter in the manner provided in Presidential Decree 1033, I hold that in the
peculiar situation in which the government is today, it is not incompatible with the Constitution for the
President to propose the subject amendments for ratification by the people in a formal plebiscite under the
supervision of the Commission on Elections. On the contrary, in the absence of any express prohibition in
the letter of the Charter, the Presidential Decree in question is entirely consistent with the spirit and the
principles underlying the Constitution. The correctness of this conclusion should become even more
patent, when one considers the political developments that the people have brought about since the
ratification of the Constitution on January 17, 1973.
I consider it apropos at this juncture to repeat my own words in a speech I delivered on the occasion of
the celebration of Law Day on September 18, 1975 before the members of the Philippine Constitution
Association and their guests:
“To fully comprehend the constitutional situation in the Philippines today, one has to bear in mind that, as I have
mentioned earlier, the martial law proclaimed under the 1935 Constitution overtook the drafting of the new charter
by the Constitutional Convention of 1971. It was inevitable, therefore, that the delegates had to take into account not
only the developments under it but, most of all, its declared objectives and what the President, as its administrator,
was doing to achieve them. In this connection, it is worthy of mention that an attempt to adjourn the convention was
roundly voted down to signify the determination of the delegates to finish earliest their work, thereby to accomplish
the mission
439
VOL. 73, OCTOBER 12, 1976 439
entrusted to them by the people to introduce meaningful reforms in our government and society.Indeed, the
constituent labors gained rapid tempo, but in the process, the delegates were to realize that the reforms they were
formulating could be best implemented if the martial law powers of the President were to be allowed to subsist even
after the ratification of the Constitution they were approving. This denouement was unusual. Ordinarily, a
constitution born out of a crisis is supposed to provide all the needed cures and can, therefore, be immediately in full
force and effect after ratification. Not so, with our 1973 Constitution, Yes, according to the Supreme Court, ‘there is
no more judicial obstacle to the new Constitution being considered in force and effect’, but in truth, it is not yet so in
full. Let me explain.
To begin with, in analyzing the new Constitution, we must be careful to distinguish between the body or main
part thereof and its transitory provisions. It is imperative to do so because the transitory provisions of our
Constitution are extraordinary in the sense that obviously they have been designed to provide not only for the
transition of our government from the presidential form under the past charter to a parliamentary one as envisaged in
the new fundamental law, but also to institutionalize, according to the President, the reforms introduced thru the
exercise of his martial law powers. Stated differently, the transitory provisions, as it has turned out, has in effect
established a transition government, not, I am sure, perceived by many. It is a government that is neither presidential
nor parliamentary. It is headed, of course, by President Marcos who not only retains all his powers under the 1935
Constitution but enjoys as well those of the President and the Prime Minister under the new Constitution. Most
importantly, he can and does legislate alone. But to be more accurate, I should say that he legislates alone in spite of
the existence of the interim National Assembly unequivocally ordained by the Constitution, for the simple reason
that he has suspended the convening of said assembly by issuing Proclamation No. 1103 purportedly ‘in deference
to the sovereign will of the Filipino people’ expressed in the January 10-15, 1973 referendum.
Thus, we have here the unique case of a qualified ratification. The whole Constitution was submitted for
approval or disapproval of the people, and after the votes were counted and the affirmative majority known, we were
told that the resulting ratification was subject to the condition that the interimNational Assembly evidently
established in the Constitution as the distinctive and indispensable element of a parliamentary form of government
should nevertheless be not convened and that no elections should be held for about seven years, with the
consequence that we have now a parliamentary government without a parliament and a republic without any regular
election of its officials. And as you can see, this phenomenon came into being not by virtue of the Constitution but
of the direct mandate
440
of the sovereign people expressed in a referendum. In other words, in an unprecedented extra-constitutional way, we
have established, wittingly or
unwittingly, a direct democracy through the Citizens Assemblies created by Presidential Decree No. 86, which later
on have been transformed into barangays, a system of government proclaimed by the President as ‘a real
achievement in participatory democracy.’ What I am trying to say, my friends, is that as I perceive it, what is now
known as constitutional authoritarianism means, in the final analysis, that the fundamental source of authority of our
existing government may not be necessarily found within the four corners of the Constitution but rather in the results
of periodic referendums conducted by the Commission on Elections in a manner well known to all of us. This, as I
see it, is perhaps what the President means by saying that under the new Constitution he has extra-ordinary powers
independently of martial law—powers sanctioned directly by the people which may not even be read in the language
of the Constitution. In brief, when we talk of the rule of law nowadays, our frame of reference should not necessarily
be the Constitution but the outcome of referendums called from time to time by the President. The sooner we imbibe
this vital concept the more intelligent will our perspective be in giving our support and loyalty to the existing
government. What is more, the clearer will it be that except for the fact that all the powers of government are being
exercised by the President, we do not in reality have a dictatorship but an experimental type of direct democracy.”
In the foregoing disquisition, I purposely made no mention of the referendum of February 27, 1975. It is
important to note, relative to the main issue now before Us, that it was originally planned to ask the
people in that referendum whether or not they would like the interim National Assembly to convene, but
the Comelec to whom the task of preparing the questions was assigned was prevailed upon not to include
any such question anymore, precisely because it was the prevalent view even among the delegates to the
Convention as well as the members of the old Congress concerned that that matter had already been
finally resolved in the previous referenda of January and July 1973 in the sense that the Assembly should
not be convened comparable to res adjudicata.
It is my position that as a result of the political developments since January 17, 1973 the transitory
provisions envisioning the convening of the interim National Assembly have been rendered legally
inoperative. There is no doubt in my mind that for the President to convoke the interim National
Assembly as such would be to disregard the will of the people—something no head of a democratic
republican state like ours should do.
441
VOL. 73, OCTOBER 12, 1976 441

And I find it simply logical that the reasons that motivated the people to enjoin the convening of the
Assembly—the unusually large and unmanageable number of its members and the controversial morality
of its automatic composition consisting of all
the incumbent elective national executive and legislative officials under the Old Constitution who would
agree to join it and the delegates themselves to the Convention who had voted in favor of the Transitory
Provisions—apply not only to the Assembly as an ordinary legislature but perhaps more to its being a
constituent body. And to be more realistic, it is but natural to conclude that since the people are against
politicians in the old order having anything to do with the formulation of national policies, there must be
more reasons for them to frown on said politicians taking part in amendment of the fundamental law,
specially because the particular amendment herein involved calls for the abolition of the interim National
Assembly to which they belong and its substitution by the Batasang Pambansa.
It is argued that in law, the qualified or conditional ratification of a constitution is not contemplated. I
disagree. It is inconsistent with the plenary power of the people to give or withhold their assent to a
proposed Constitution to maintain that they can do so only wholly. I cannot imagine any sound principle
that can be invoked to support the theory that the proposing authority can limit the power of ratification of
the people. As long as there are reliable means by which only partial approval can be manifested, no
cogent reason exists why the sovereign people may not do so. True it is that no proposed Constitution can
be perfect and it may therefore be taken with the good and the bad in it, but when there are feasible ways
by which it can be determined which portions of it, the people disapprove, it would be stretching
technicality beyond its purported office to render the final authority—the people—impotent to act
according to what they deem best suitable to their interests.
In any event, I feel it would be of no consequence to debate at length regarding the legal feasibility of
qualified ratification. Proclamation 1103 categorically declares that:
“WHEREAS, fourteen million nine hundred seventy six thousand five hundred sixty-one (14,976.561) members of
all the Barangays voted for the adoption of the proposed Constitution, as against seven hundred forty-three thousand
eight hundred sixty-nine (743,869) who voted for its rejection; but a majority of those who
442
approved the new Constitution conditioned their votes on the demand that the interim National Assembly provided
in its Transitory Provisions should not be convened.”
and in consequence, the President has acted accordingly by not convening the Assembly. The above
factual premises of Proclamation 1103 is not disputed by petitioners. Actually, it is binding on the Court,
the same being a political act of a coordinate department of the government not properly assailed as
arbitrary or
whimsical. At this point, it must be emphasized in relation to the contention that a referendum is only
consultative, that Proclamation 1103, taken together with Proclamation 1102 which proclaimed the
ratification of the Constitution, must be accorded the same legal significance as the latter proclamation, as
indeed it is part and parcel of the act of ratification of the Constitution, hence not only persuasive but
mandatory. In the face of the incontrovertible fact that the sovereign people have voted against the
convening of the interim National Assembly, and faced with the problem of amending the Constitution in
order precisely to implement the people’s rejection of that Assembly, the problem of constitutional
dimension that confronts Us, is how can any such amendment be proposed for ratification by the people?
To start with, it may not be supposed that just because the office or body designed by the
constitutional convention to perform the constituent function of formulating proposed amendments has
been rendered inoperative by the people themselves, the people have thereby foreclosed the possibility of
amending the Constitution no matter how desirable or necessary this might be. In this connection, I
submit that by the very nature of the office of the Presidency in the prevailing scheme of government we
have—it being the only political department of the government in existence—it is consistent with basic
principles of constitutionalism to acknowledge the President’s authority to perform the constituent
function, there being no other entity or body lodged with the prerogative to exercise such function.
There is another consideration that leads to the same conclusion. It is conceded by petitioners that with
the non-convening of the interim Assembly, the legislative authority has perforce fallen into the hands of
the President, if only to avoid a complete paralysis of law-making and resulting anarchy and chaos. It is
likewise conceded that the provisions of Section 3 (2) of Article XVII invest the President with legislative
power
443
VOL. 73, OCTOBER 12, 1976 443

for the duration of the transition period. From these premises, it is safe to conclude that in effect the
President has been substituted by the people themselves in place of the interim Assembly. Such being the
case, the President should be deemed as having been granted also the cognate prerogative of proposing
amendments to the Constitution. In other words, the force of necessity and the cognate nature of the act
justify that the department exercising the legislative faculty be the one to likewise perform the constituent
function that was attached to the body rendered impotent by the people’s mandate. Incidentally, I reject
most vehemently the proposition that the President may propose amendments to the Constitution in the
exercise of his martial law powers. Under any standards, such a
suggestion cannot be reconciled with the ideal that a Constitution is the free act of the people.
It was suggested during the oral argument that instead of extending his legislative powers by
proposing the amendment to create a new legislative body, the President should issue a decree providing
for the necessary apportionment of the seats in the Regular National Assembly and call for an election of
the members thereof and thus effect the immediate normalization of the parliamentary government
envisaged in the Constitution. While indeed procedurally feasible, the suggestion overlooks the
imperative need recognized by the constitutional convention as may be inferred from the obvious purpose
of the transitory provisions, for a period of preparation and acquaintance by all concerned with the
unfamiliar distinctive features and practices of the parliamentary system. Accustomed as we are to the
presidential system, the Convention has seen to it that there should be an interim parliament under the
present leadership, which will take the corresponding measures to effectuate the efficient and smooth
transition from the present system to the new one. I do not believe this pattern set by the convention
should be abandoned.
The alternative of calling a constitutional convention has also been mentioned. But, in the first place,
when it is considered that whereas, under Section 1 (1) and (2) of Article XVI, the regular National
Assembly may call a Constitutional Convention or submit such a call for approval of the people, Section
15 of Article XVII, in reference to interim National Assembly, does not grant said body the prerogative of
calling a convention, one can readily appreciate that the spirit of the Constitution does not countenance or
favor the calling of a
444

convention during the transition, if only because such a procedure would be time consuming,
cumbersome and expensive. And when it is further noted that the requirement as to the number of votes
needed for a proposal is only a majority, whereas it is three-fourths in respect to regular Assembly, and,
relating this point to the provision of Section 2 of Article XVI to the effect that all ratification plebiscites
must be held “not later than three months after the approval” of the proposed amendment by the
proposing authority, the adoption of the most simple manner of amending the charter, as that provided for
in the assailed Presidential Decree 1033 suggests itself as the one most in accord with the intent of the
fundamental law.
There is nothing strange in adopting steps not directly based on the letter of the Constitution for the
purpose of amending or changing the same. To cite but one important precedent, as explained by Mr.
Justice Makasiar in his concurring opinion in
104/125
Javellana
2
, the present Constitution of the United States was neither proposed nor ratified in the manner
ordained by the original charter of that country, the Articles of Confederation and Perpetual Union.
In brief, if the convening and operation of the interim National Assembly has been effectuated through
a referendumplebiscite in January, 1973, and ratified expressly and impliedly in two subsequent
referenda, those of July, 1973 and February, 1975, why may not a duly held plebiscite suffice for the
purpose of creating a substitute for that Assembly? It should be borne in mind that after all, as indicated in
the whereas of the impugned Presidential Decree, actually, the proposed amendments were initiated by
the barangays and sanggunian members. In other words, in submitting the amendments for ratification,
the President is merely acting as the conduit thru whom a substantial portion of the people, represented in
the Katipunan ng Mga Sanggunian, Barangay at Kabataang Barangay, seek the approval of the people as
a whole of the amendments in question. If all these mean that the sovereign people have arrogated unto
themselves the functions relative to the amendment to the Constitution, I would regard myself as totally
devoid of legal standing to question it, having in mind that the most fundamental tenet on which our
whole political structure rests is that “sovereignty resides in the people and all government authority
emanates from them.”
_______________
2
50 SCRA 30, 209 et seq.
445
VOL. 73, OCTOBER 12, 1976 445

In the light of the foregoing considerations, I hold that Presidential Decree No. 1033 does not infringe the
Constitution, if only because the specific provision it is supposed to infringe does not exist in legal
contemplation since it was coevally made inoperative when the people ratified the Constitution on
January 17, 1973. I am fully convinced that there is nothing in the procedure of amendment contained in
said decree that is inconsistent with the fundamental principles of constitutionalism. On the contrary, I
find that the Decree, in issue conforms admirably with the underlying tenet of our government—the
sovereignty and plenary power of the people.
On the issue of whether or not October 16, 1976 is too proximate to enable the people to sufficiently
comprehend the issues and intelligently vote in the referendum and plebiscite set by Presidential Decree
1033, all I can say is that while perhaps my other colleagues are right in holding that the period given to
the people is adequate, I would leave it to the President to consider whether or not it would be wiser to
extend the same. Just to avoid adverse comments later I wish the President orders a postponement. But
whether such
postponement is ordered or not, date of the referendum-plebiscite anywhere from October 16, 1976 to any
other later date, would be of no vital import.
In conclusion, I vote to dismiss all the three petitions before Us.
MAKASIAR, J.; Concurring and Dissenting:
Since the validity or effectivity of the proposed amendments is to be decided ultimately by the people in
their sovereign capacity, the question is political as the term is defined in Tañada, et al. vs. Cuenco, et al.
(103 Phil. 1051), which is a bar to any Judicial inquiry, for the reasons stated in Our opinion in Javellana,
et al. vs. Executive Secretary, et al. (L-36142); Tan, et al. vs. Executive Secretary, et al. (L-36164);
Roxas, et al. vs. Executive Secretary, et al. (L-36165); Monteclaro, etc., et al. vs. Executive Secretary, et
al. (L-36236); and Dilag, et al. vs. Executive Secretary, et al. (L-36283, March 31, 1973, 50 SCRA 30,
204-283) The procedure for amendment is not important. Ratification by the people is all that is
indispensable to validate an amendment. Once ratified, the method of making the proposal and the period
for submission become irrelevant.
446

The contrary view negates the very essence of a republican democracy—that the people are sovereign—
and renders meaningless the emphatic declaration in the very first provision of Article II of the 1973
Constitution that the Philippines is a republican state, sovereignty resides in the people and all
government authority emanates from them. It is axiomatic that sovereignty is illimitable. The
representatives cannot dictate to the sovereign people.They may guide them; but they cannot supplant
their judgment.Such an opposite view likewise distrusts the wisdom of the people as much as it despises
their intelligence. It evinces a presumptuous pretension to intellectual superiority. There are thousands
upon thousands among the citizenry, who are not in the public service, who are more learned and better
skilled than many of their elected representatives.
Moreover, WE already ruled in Aquino, et al. vs. Comelec, et al. (L-40004, Jan. 31, 1975, 62 SCRA
275, 298-302) that the President as enforcer or administrator of martial rule during the period of martial
law can legislate; and that he has the discretion as to when the convene the interim National Assembly
depending on prevailing conditions of peace and order. In view of the fact that the interim National
Assembly has not been convoked in obedience to the desire of the people clearly expressed in the 1973
referenda, the President therefore remains the lone law-making authority while martial law subsists.
Consequently, he can also exercise the power of the interim National Assembly to propose amendments
to the New Constitution
(Sec. 15, Art. XVII). If, as conceded by petitioner Vicente Guzman (L-44684), former delegate to the
1971 Constitutional Convention which drafted the 1973 Constitution, the President, during the period of
martial law, can call a constitutional convention for the purpose, admittedly a constituent power, it stands
to reason that the President can likewise legally propose amendments to the fundamental law.
CONCURRING OPINION
ANTONIO, J.:
I
At the threshold, it is necessary to clarify what is a “political question”. It must be noted that this device
has been utilized by
447
VOL. 73, OCTOBER 12, 1976 447

the judiciary “to avoid determining questions it is ill equipped to determine or that could be effective
support of the political settled in branches.”
any 1
event According only with the to Weston, judges, whether “personal representatives of a truly sovereign
king, or taking their seats as the creatures of a largely popular sovereignty speaking through a written
constitution, derive their power by a delegation, which clearly or obscurely as the case may be, delineates
and delimits their delegated jurisdiction.* * * Judicial questions * * * are those which the sovereign has
set to be decided in the courts. Political questions, similarly, are those which the sovereign has entrusted
to the so-called political reserved to be settled by its own departments extra-governmental of government
action.” or has 2
Reflecting a similar concept, this Court has defined a “political question” as a “matter which is to be
exercised by the people in their primary political capacity or that has been specificallydelegated to some
other department discretionary power to or act.”
particular 3
officer of the government, with In other words, it refers to those questions which, under the Constitution,
are to be decided by the people in their sovereign capacity,or in regard to which full discretionary
authority has executive branch of government.
been 4
delegated to the legislative or
In determining whether an issue falls within the political question category, the absence of a
satisfactory criterion for a judicial determination or the appropriateness of attributing finality to the action
of the political departments of government is a dominant consideration. Carr,
5
thus:
This was explained by Justice Brennan in Baker v.
“Prominent on the surface of any case held to involve political question is found a textually demonstrable
constitutional commitment of the issue to a
coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the
impossibility of deciding without an initial policy
_______________
1 Carl Brent Swisher. The Supreme Court in the Modern Role, 1958 ed., p. 173.
2 Melville Fuller Weston, Political questions, 38 Harv. L. Rev., 296, Italics supplied.
3 Tañada v. Cuenco, 103 Phil. 1051, 1057, citing In re McConaughy,119 NW 408. Italics
supplied.
4 16 C.J.S. 413.
5 369 U.S. 186, 217.
448
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
unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious
pronouncements by various departments on one question. * * *”
To decide whether a matter has in a measure been committed by the Constitution to another branch of
government or retained by the people to be decided by them in their sovereign capacity, or whether that
branch exceeds whatever authority has been committed, is indeed In Coleman a delicate v. exercise
Miller, 6 the in constitutional United
108/125
interpretation. States Supreme Court held that the efficacy of the ratification by state legislatures of a
constitutional amendment is a political question. On the question of whether the State Legislature could
constitutionally ratify an amendment, after the same had been previously rejected by it, it was held that
the ultimate authority over the question was in Congress in the exercise of its control over the
promulgation of the adoption of the amendment. And in connection with the second question of whether
the amendment has lost its vitality through the lapse of time, the Court held that the question was likewise
political, involving “as it does * * * an appraisal of a great variety of relevant conditions, political, social
and economic, which can hardly be said to be within the appropriate range of evidence receivable in a
court of justice and as to which it would be an extravagant extension of juridical authority to assert
judicial notice as the basis of deciding a controversy with respect to the validity of an amendment actually
ratified. On the other hand, these conditions are appropriate for the consideration of the political
departments of the Government. The questions they involve are essentially political and not justiciable.”
‘In their concurring opinions, Justices Black, Roberts, Frankfurter and Douglas stressed that:
“The Constitution grants Congresss exclusive power to control submission of constitutional amendments. Final
determination by Congress that ratification by three-fourths of the States has taken
_______________
6 307 U.S. 433.
449
VOL. 73, OCTOBER 12, 1976 449
place ‘is conclusive upon the courts.’ In the exercise of that power, Congress of course, is governed by the
Constitution. However, whether submission, intervening procedure for Congressional determination of ratification
conforms to the commands of the Constitution, call for decisions by a ‘political department’ of questions of a type
which this Court has frequently designated ‘political.’ And decision of a ‘political question’ by the political
department’ to which the Constitution has committed it ‘conclusively binds the judges, as well as all other officers,
citizens and subjects of * * * government. Proclamation under authority of Congress that an amendment has been
ratified will carry with it a solemn assurance by the Congress that ratification has taken place as the Constitution
commands. Upon this assurance a proclaimed amendment must be accepted as a part of the Constitution, leaving to
the judiciary its traditional authority of interpretation. To the extent that the Court’s opinion in the present case even
impliedly assumes a power to make judicial interpretation of the exclusive constitutional authority of Congress over
submission and ratification of amendments, we are unable to agree.”
Relying on this doctrine enunciated in Coleman v. Miller, supra, this Court, in Mabanag v. Lopez Vito,
7
speaking through Mr. Justice Pedro Tuason, ruled that the process
of constitutional amendment, involving proposal and ratification, is a political question. In the Mabanag
case, the petitioners sought to prevent the enforcement of a resolution of Congress proposing the “Parity
Amendment” to the Philippine Constitution on the ground that it had not been approved by the three-
fourths vote of all the members of each house as required by Article XV of the 1935 Constitution. It was
claimed that three (3) Senators and eight (8) members of the House of Representatives had been
suspended and that their membership was not considered in the determination of the three-fourths vote. In
dismissing the petition on the ground that the question of the validity of the proposal was political, the
Court stated:
“If ratification of an amendment is a political question, a proposal which leads to ratification has to be a political
question. The two steps complement each other in a scheme intended to achieve a single objective. It is to be noted
that amendatory process as provided in Section 1 of Article XV of the Philippine Constitution ‘consists of (only)
two distinct parts: proposal and ratification.’ There is no logic in attaching political character to one and
withholding that character from the other. Proposal to amend the Constitution is a highly
_______________
7 78 Phil. 1 (1947).
450
political function performed by the Congress in its sovereign legislative capacity and committed to its charge by the
Constitution itself. * * *” (At pages 4-5, italics supplied.)
It is true that in Gonzales v. Comelec,
8
this Court held that “the issue whether or not a Resolution of Congress, acting as a constituent
assembly—violates the Constitution is essentially justiciable, not political, and hence, subject to judicial
review.” What was involved in Gonzales, however, Constitution but an
110/125 was not a act of Congress,
proposed 9
amendment to the submitting proposed amendments to the Commission on Elections,
Constitution. 10
what was involved Similarly, was in not Tolentino the validity v.
of the proposal to lower the voting age but rather that of the resolution of the Constitutional Convention
submitting the proposal for ratification. The question was whether piecemeal amendments to the
Constitution could be submitted to the people for approval or rejection.
II
Here, the point has been stressed that the President is acting as agent for and in behalf of the people in
proposing the amendment. There can be no question that in the referendums of January, 1973 and in the
subsequent referendums the people had clearly and categorically rejected the calling of the interim
National Assembly. As stated in the main opinion, the Lupang Tagapagpaganap of the Katipunan ng mga
Sanggunian, the Pambansang Katipunan ng mga Barangay, representing 42,000 barangays, the Kabataang
Barangay organizations and the various sectoral groups had proposed the replacement of the interim
National Assembly. These barangays and the Sanggunian assemblies are effective instrumentalities
through which the desires of the people are articulated and expressed. TheBatasang Bayan (Legislative
Council), composed of nineteen (19) cabinet members and nine (9) officials with cabinet rank, and
ninety-one (91) members of the Lupang Tagapagpaganap (Executive Committee) of the Katipunan ng
mga Sangguniang Bayan voted in their special session to submit directly to the people in a plebiscite on
October 16, 1976 the
_______________
8
21 SCRA 774.
9
Republic Act No. 413.
10
41 SCRA 702.
451
VOL. 73, OCTOBER 12, 1976 451

afore-mentioned constitutional amendments. Through the Pambansang Katipunan ng mga Barangay and
the Pampurok na Katipunan ng mga Sangguniang Bayan,the people have expressed their desire not only
to abolish the interim National Assembly, but to replace it with a more representative body acceptable to
them in order to effect the desirable constitutional changes necessary to hasten the political evolution of
the government towards the parliamentary system, while at the same time ensuring that the gains of the
New Society, which are vital to the welfare of the people, shall be safeguarded. The proposed
constitutional amendments, therefore, represent a consensus of the people.
It would be futile to insist that the interim National Assembly should have been convened to propose
those amendments pursuant to case Section of Aquino 15 of v. Article Commission XVII of on the
Elections,
Constitution. 11 took http://www.central.com.ph/sfsreader/session/00000164a3a59b0889a9c9c3003600fb002c009e/t/?o=False
111/125
This Court, in the judicial notice of the fact that in the referendum of January, 1973, a majority of those
who approved the new Constitution conditioned their votes on the demand that the interim National
Assembly provided in the Transitory Provisions should not be convened,and the President “in deference
the convening to the of sovereign said body will shall of the be Filipino suspended.
people” 12
As declared this Court that
observed in the Aquino case:
“His decision to defer the initial convocation of the interim National Assembly was supported by the sovereign
people at the referendum in January, 1973 when the people voted to postpone the convening of the interimNational
Assembly until after at least seven (7) years from the approval of the new Constitution. And the reason why the
same question was eliminated from the questions to be submitted at the referendum on February 27, 1975, is that
even some members of the Congress and delegates of the Constitutional Convention, who are already ipso facto
members of the interim National Assembly, are against such inclusion; because the issue was already decided in the
January, 1973 referendum by the sovereign people indicating thereby their disenchantment with any Assembly as
the former Congress failed to institutionalize the reforms they demanded and had wasted public funds through
endless debates without relieving the suffering of the general mass of citizenry.” (p. 302.)
_______________
11
L 40004, January 31, 1975. 62 SCRA 275.
12
Proclamation No. 1103, January 17, 1973.
452

The action of the President in suspending the convening of the interim National Assembly has met the
overwhelming approval of the people in subsequent referenda. Since it was the action by the people that
gave binding force and effect to the new Constitution, then it must be accepted as a necessary
consequence that their objection against the immediate convening of the interim National Assembly must
be respected as a positive mandate of the sovereign. in the In the people Philippines, and all government
which is a unitary authority state, emanates sovereignty from them.”
“resides 13
The term “people” as sovereign is comprehensive in its context. The people, as sovereign creator of all
political reality, enfranchised citizens but the political unity of
112/125
is the not people.
merely 14
the It connotes, therefore, a people which exists not only in the urgent present but in the continuum of
history. The assumption that the opinion of The People as voters can be treated as the expression of the
interests of The Peopleas a historic community was, to the distinguished American journalist and public
philosopher, Walter Lippmann, unwarranted.
“ ‘Because of the discrepancy between The People as Voters and The People as the corporate nation, the voters have
no title to consider themselves the proprietors of the commonwealth and to claim that their interests are identical to
the public interest. A prevailing plurality of the voters are not The People. The claim that they are is a bogus title
invoked to justify the usurpation of the executive power by representative assemblies and the intimidation or public
men by demagogic politicians. In fact demagoguery can be described as the sleight of hand by which a faction of
The People as voters are invested with the authority of The People. That is why so many crimes are committed in
the People’s name.’ ”
15
In Gonzales v. Comelec, supra,the Court clearly emphasized that the power to propose amendments or to
amend the Constitution is part of the inherent power of the people as the repository of sovereignty in a
republican state. While Congress may propose amendments to the Constitution, it acts pursuant to
authority granted to it by the people through the
_______________
13
Section 1, Article II, Constitution.
14
Leibholz:Politics and Law,p. 24.
15
Today’s Revolution: Democracy, Marcos, pp. 87-88.
453
VOL. 73, OCTOBER 12, 1976 453

Constitution. Both the power to propose and the authority to approve, therefore, inhere in the people as
the bearer of the Constitution making power.
Absent an interim National Assembly upon whom the people, through the Constitution, have
delegated the authority to exercise constituent powers, it follows from necessity that either the people
should exercise that power themselves or through any other instrumentality they may choose. For Law,
like Nature, abhors a vacuum (natura vacuum abhorret).
The question then is whether the President has authority to act for the people in submitting such proposals
for ratification at the plebiscite of October 16. The political character of the question is, therefore,
particularly manifest, considering that ultimately it is the people who will decide whether the President
has such authority. It certainly involves a matter which is to be exercised by the people in their sovereign
capacity, hence, it is essentially political, not judicial. While it is true that the constituent power is not to
be confused with legislative power in general because the prerogative to propose amendments is not
embraced within the context of ordinary lawmaking, it must be noted that the proposals to be submitted
for ratification in the forthcoming referendum are, in the final analysis, actually not of the President but
directly of the people themselves, speaking through their authorized instrumentalities.
As the Chief Justice aptly stated in his concurring opinion in this case:
“* * * The President merely formalized the said proposals in Presidential Decree No. 1033. It being conceded in all
quarters that sovereignty resides in the people and it having been demonstrated that their constituent power to amend
the Constitution has not been delegated by them to any instrumentality of the Government during the present stage
of the transition period of our political development, the conclusion is ineluctable that their exertion of that residuary
power cannot be vulnerable to any constitutional challenge as being ultra vires. Accordingly, without venturing to
rule on whether or not the President is vested with constituent power—as it does not appear necessary to do so in the
premises—the proposals here challenged, being acts of the sovereign people no less, cannot be said to be afflicted
with unconstitutionality. A fortiori,the concomitant authority to call a plebiscite and to appropriate funds therefor is
even less vulnerable not only because the President, in exercising said authority, has acted as a mere alter ego of the
people who made the proposals, but likewise because the said authority is legislative in nature rather than
454
constituent.
This is but a recognition that the People of the Philippines have the inherent, sole and exclusive right of
regulating their own government, and of altering or abolishing their Constitution whenever it may be necessary to
their safety or happiness. There appears to be no justification, under the existing circumstances, for a Court to create
by implication a limitation on the sovereign power of the people. As has been clearly explained in a previous case:
16
“‘There is nothing in the nature of the submission which should cause the free exercise of it to be obstructed, or
that could render it dangerous to the stability of the government; because the measure derives all its vital force from
the action of the people at the ballot box, and there can never be danger in submitting in an established form, to a
free people, the proposition whether they will change their fundamental law. The means provided for the exercise of
their sovereign right of changing their constitution should receive such a construction as not to trammel the exercise
of the right. Difficulties and embarrassments in its exercise are in derogation of the right of free government, which
is inherent in the people; and the best security against tumult and revolution is the free and unobstructed privilege to
the people of the State to change their constitution in the mode prescribed by the instrument.”
III
The paramount consideration that impelled Us to arrive at the foregoing opinion is the necessity of
ensuring popular control over the constituent power. “If the people are to control the constituent power—
the State,” observed power Wheeler,
to make 17
and “the change process the of fundamental Constitutional law change of the
must not be based too heavily upon existing agencies of government.” Indeed, the basic premise of
republicanism is that the ordinary citizen, the common man, can be trusted to determine his political
destiny. Therefore, it is time that the people should be accorded the
_______________
16
Mabanag v. Lopez Vito, supra, at page 5, citing Green v. Weller, 32 Miss., 650; note, 10 L.R.A., N.S., 150.
17
John P. Wheeler, Jr., Changing the Fundamental Law SALIENT ISSUES OF CONSTITUTIONAL REVISION; 1961 ed.
455
VOL. 73, OCTOBER 12, 1976 455

fullest opportunity to decide the laws that shall provide for their governance. For in the ultimate analysis,
the success of the national
endeavor shall depend on the vision, discipline and firmness of the moral will of every Filipino.
IN VIEW OF THE FOREGOING CONSIDERATIONS, We vote to dismiss the petitions.
Aquino, J., concur.
MUÑOZ PALMA, J.:— separate dissenting opinion
I concur fully with the remarkably frank (so characteristic of him) dissenting opinion of my distinguished
colleague, Justice Claudio Teehankee. If I am writing this brief statement it is only to unburden myself of
some thoughts which trouble my mind and leave my conscience with no rest nor peace.
Generally, one who dissents from a majority view of the Court takes a lonely and at times precarious
road, the burden being lightened only by the thought that in this grave task of administering justice, when
matters of conscience are at issue, one must be prepared to espouse and embrace a rightful cause however
unpopular it may be.
1. That sovereignty resides in the people and all government authority emanates from them is a
fundamental, basic principle of government which cannot be disputed, but when the people have opted to
govern themselves under the mantle of a written Constitution, each and every citizen, from the highest to
the lowliest, has the sacred duty to respect and obey the Charter they have so ordained.
“By the Constitution which they establish, they not only tie up the hands of their official agencies, but their own
hands as well; and neither the officers of the state, nor the whole people as an aggregate body, are at liberty to take
action in opposition to this fundamental law. ”(Cooley’s Constitutional Limitations, 7th Ed. p. 56, Italics Ours).
The afore-quoted passage from the eminent jurist and author Judge Cooley, although based on
declarations of law of more than a century ago, lays down a principle which to my mind is one of the
enduring cornerstones of the Rule of Law. It is a principle with which I have been familiar as a student of
law
456

under the tutelage of revered Professors, Dr. Vicente G. Sinco and Justice Jose P. Laurel, and which I
pray will prevail at all times to ensure the existence of a free, stable, and civilized society.
The Filipino people, wanting to ensure to themselves a democratic republican form of government,
have promulgated a Constitution whereby the power to govern themselves has been entrusted to and
distributed among three branches of government; they have also mandated in clear and unmistakable
terms the method
by which provisions in their fundamental Charter may be amended or revised. Having done so, the people
are bound by these constitutional limitations. For while there is no surrender or abdication of the people’s
ultimate authority to amend, revise, or adopt a new Constitution, sound reason demands that they keep
themselves within the procedural bounds of the existing fundamental law. The right of the people to
amend or change their Constitution if and when the need arises is not to be denied, but we assert that
absent a revolutionary state or condition in the country, the change must be accomplished through the
processes provided for in the Constitution.
ordinary, 1
regular and legitimate
I cannot subscribe therefore to the view taken by the Solicitor General that the people, being sovereign,
have the authority to amend the Constitution even in a manner different from and contrary to that
expressly provided for in that instrument, and that the amendatory process is intended more as a limitation
of a power rather than a grant of power to a particular agency and it should not be construed decide on
116/125 as limiting the ultimate amendments to the Constitution. sovereign 2
will Such of the a people to view will seriously undermine the very existence of a constitutional
government and will permit anarchy and/or mob rule to set afoot and prevail. Was it the Greek
philosopher Plato who warned that the rule of the mob is a prelude to the rule of the tyrant?
I would use the following excerpt from Bernas, S.J., “The 1973 Philippine Constitution, Notes and
Cases” as relevant to my point:
“. . . the amendatory provisions are called a ‘constitution of sovereignty’ because they define the constitutional
meaning of
_______________
1 Sinco, Philippine Political Law, 10th Ed. p. 48
2 T.S.N. of hearing, October 8, 1976, pp. 8, 11, 12, 15.
457
VOL. 73, OCTOBER 12, 1976 457
Sanidad vs.Commission on Elections
‘sovereignty of the people.’ Popular sovereignty, as embodied in the Philippine Constitution, is not extreme popular
sovereignty. As one American writer put it:
‘A constitution like the American one serves as a basic check upon the popular will at any given time. It is the distinctive
function of such written document to classify certain things as legal fundamentals; these fundamentals may not be changed
except by the slow and cumbersome process of amendment. The people themselves have decided, in constitutional convention
assembled, to limit themselves and future generations in the exercise of the sovereign power which they would otherwise possess.
And it is precisely such limitation that enables those subject to governmental authority to appeal from the people drunk to the
people sober, in time
of excitement and hysteria. The Constitution, in the neat phrase of the Iowa court, is the protector of the people against injury by
the people.’ ”
*
Truly, what need is there for providing in the Constitution a process by which the fundamental law may
be amended if, after all, the people by themselves can set the same at naught even in times of peace when
civil authority reigns supreme?
To go along with the respondents’ theory in this regard is to render written Constitutions useless or
mere “ropes of sand”, allowing for a government of men instead of one of laws. For it cannot be
discounted that a situation may arise where the people are heralded to action at a point of a gun or by the
fiery eloquence of a demagogue, and where passion overpowers reason, and mass action overthrows legal
processes.
History has recorded such instances, and I can think of no better example than that of Jesus Christ of
Judea who was followed and loved by the people while curing the sick, making the lame walk and the
blind see, but shortly was condemned by the same people turned into fanatic rabble crying out “Crucify
Him, Crucify Him” upon being incited into action by chief priests and elders of Jerusalem.
Yes, to quote once more from Judge Cooley:
“A good Constitution should be beyond the reason of temporary excitement and popular caprice or passion. It is
needed for stability and steadiness; it must yield to the thought of the people; not to the
_______________
* p. 716, 1974 Ed., citing B. Schwartz, I The Powers of Government (1963) 10.
458
whim of the people, or the thought evolved in excitement or hot blood, but the sober second thought, which alone, if
the government is to be safe, can be allowed efficiency. .... Changes in government are to be feared unless the
benefit is certain.” (quoted in Ellingham v. Dye, 99 N.E. 1, 15)
3
_______________
3
see also: Crawford v. Gilchrist, 64 Fla. 41., 59., So. 963, Ann. Cas. 1914B, 916; State v. Hall, 159 N.W., 281; Opinion of
Marshall, J. in State ex. rel. Postel v. Marcus, 152 N.W., 419; From Koehler v. Hill, Vol. 15, N. W., 609, we quote:
“Day, C.J.
xxx xxx xxx
“It has been said that changes in the constitution may be introduced in disregard of its provisions; that if the majority of the
people desire a change the majority must be
respected, no matter how the change may be effected; and that the change, if revolution, is peaceful revolution. ...
“We fear that the advocates of this new doctrine, in a zeal to accomplish an end which the majority of the people desire, have
looked at but one phase of the question, and have not fully considered the terrible consequences which would almost certainly
follow a recognition of the doctrine for which they contend. It may be that the incorporation of this amendment in the
constitution, even if the constitution has to be broken to accomplish it, would not of itself produce any serious results. But if it
should be done by sanctioning the doctrine contended for, a precedent would be set which would plague the state for all future
time. A Banquo’s ghost would arise at our incantation which would not down at our bidding.
xxx xxx xxx
“We ought to ponder long before we adopt a doctrine so fraught with danger to republican institutions.” ......
xxx xxx xxx
“Appellants’ counsel cite and rely upon section 2, art. 1, of the constitution of the state. This section is a portion of the bill of
rights, and is as follows: ‘All political power is inherent in the people. Government is instituted for the protection, security, and
benefit of the people; and they have the right at all times to alter or reform the same, whenever the public good may require.’
Abstractly considered, there can he no doubt of the correctness of the propositions embraced in this section. These principles are
older than constitutions and older than governments. The people did not derive the rights referred to from the constitution, and, in
their nature, they are such that the people cannot surrender them.” ......
459
VOL. 73, OCTOBER 12, 1976 459

2. Presidential Decrees Nos. 991 and 1033 which call for a national referendum-plebiscite on October 16,
1976 for the purpose, among other things, of amending certain provisions of the 1973 Constitution are
null and void, as they contravene the express provisions on the amending process of the 1973 Constitution
laid down in Article XVI, Section 1 (1) and Article XVII, Section 15, more particularly the latter which
applies during the present transition period. The Opinion of Justice Teehankee discusses in detail this
particular matter.
I would just wish to stress the point that although at present there is no interim National Assembly
which may propose amendments to the Constitution, the existence of a so-called “vacuum” or “hiatus”
does not justify a transgression of the constitutional provisions on the manner of amending the
fundamental law. We cannot cure one infirmity—the existence of a “vacuum” caused by the non-
convening of the interim National Assembly—with another infirmity, that is, doing violence to the
Charter.
“ ‘All great mutations shake and disorder a state. Good does not necessarily succeed evil; another evil may succeed
and a worse.’ ” (Am. Law Rev. 1889, p. 311., quoted in Ellingham v. Dye, supra, p. 15)
Respondents contend that the calling of the referendumplebiscite for the purpose indicated is a step
necessary to restore the state of normalcy in the country. To my mind, the only possible measure that will
lead our country and people to a condition of normalcy is the lifting or ending of the state of martial law.
If I am constrained to make this statement it is
______________
xxx xxx xxx
“It is well that the powers of the people and their relations to organized society should be understood. No heresy has ever been
taught in this country so fraught with evil as the doctrine that the people have a constitutional right to disregard the constitution,
and that they can set themselves above the instrumentalities appointed by the constitution for the administration of law. It tends
directly to the encouragement of revolution and anarchy. It is incumbent upon all who influence and mold public opinion to
repudiate and discountenance so dangerous a doctrine before it bears fruits destructive of republican institutions. It will be well if
the people come to understand the difference between natural and constitutional freedom, before license becomes destructive of
liberty.” (pp. 611-616)
460

because so much stress was given during the hearings of these cases on this particular point, leaving one
with the impression that for petitioners to contest the holding of the October 16 referendum- plebiscite is
for them to assume a position of blocking or installing the lifting of martial law, which I believe is unfair
to the petitioners. Frankly, I cannot see the connection between the two. My esteemed colleagues should
pardon me therefore if I had ventured to state that the simple solution to the present dilemma is the lifting
of martial law and the implementation of the constitutional provisions which will usher in the
parliamentary form of government ordained in the Constitution, which, as proclaimed in Proclamation
1102, the the people themselves have ratified.
If the people have indeed ratified the 1973 Constitution, then they are bound by their act and cannot
escape from the pretended unfavorable consequences thereof, the only remedy being to set in motion the
constitutional machinery by which the supposed desired amendments may properly be adopted and
submitted to the electorate for ratification.
Constitutional processes are to be observed strictly, if we have to maintain and preserve the system of
government decreed under the
fundamental Charter. As said by Justice Enrique Fernando in Mutuc vs. Commission on Elections:
“ .... The concept of the Constitution as the fundamental law, setting forth the criterion for the validity of any public
act whether proceeding from the highest official or the lowest functionary, is a postulate of our system of
government. That is to manifest fealty to the rule of law,with priority accorded to that which occupies the topmost
rung in the legal hierarchy.” . . . (36 SCRA, 228, 234, italics Ours)
A contrary view would lead to disastrous consequences for, in the words of Chief Justice Cox of the
Supreme Court of Indiana in Ellingham v. Dye,(supra, p. 7) liberty and popular sovereignty are not meant
to give rein to passion or thoughtless impulse but to allow the exercise of power by the people for the
general good under constant restraints of law.
3. The true question before Us is one of power. Does the incumbent President of the Philippines
possess constituent powers? Again, the negative answer is explained in detail in the dissenting opinion of
Justice Teehankee.
Respondents would justify the incumbent President’s exercise of constituent powers on theory that he
is vested with
461
VOL. 73, OCTOBER 12, 1976 461

legislative powers as held by this Court in Benigno S. Aquino, Jr., et al. vs. Commission on Elections, et
al., L-40004, January 31, 1975. I wish to stress that although in my separate opinion in said case I agreed
that Section 3 (2) of the Transitory provisions grants to the incumbent President legislative powers, I
qualified my statement as follows:
“ .... As to, whether, or not, this unlimited legislative power of the President continues to exist even after the
ratification of the Constitution is a matter which I am not ready to concede at the moment, and which at any rate I
believe is not essential in resolving this Petition for reasons to be given later. Nonetheless, I hold the view that the
President is empowered to issue proclamations, orders, decrees, etc. to carry out and implement the objectives of the
proclamation of martial law be it under the 1935 or 1973 Constitution, and for the orderly and efficient functioning
of the government, its instrumentalities, and agencies. This grant of legislative power is necessary to fill up a
vacuum during the transition period when the interimNational Assembly is not yet convened and functioning, for
otherwise, there will be a disruption of official functions resulting in a collapse of the government and of the
existing social order.” (62 SCRA, pp. 275, 347)
I believe it is not disputed that legislative power is essentially different from constituent power; one does
not encompass the other
unless so specified in the Charter, and the 1973 Constitution contains provisions in this regard. This is
well-explained in Justice Teehankee’s Opinion. The state of necessity brought about by the current
political situation, invoked by the respondents, provides no source Must
121/125 of power to propose amendments we “bend the Constitution to to the existing suit the law of the
Constitution.
hour?”
4
or cure its defects “by inflicting upon it a wound which nothing can heal,” commit one assault after the
other “until all respect for the fundamental law those in authority is lost please and to call the them?”
powers 5
of Or government can we now are ignore just what what this Court, speaking through Justice Barredo,
said in Tolentino vs. Comelec:
“ .... let those who would put aside, invoking grounds at best controversial, any mandate of the fundamental law
purportedly in order to attain some laudable objective bear in mind that someday somehow others with purportedly
more laudable objectives may take
_______________
4 Greencastle Township v. Black, 5 Ind., 557, 565.
5 Oakley vs. Aspinwall, 3 N.Y., 547, 568.
462
advantage of the precedent and continue the destruction of the Constitution, making those who laid down the
precedent of justifying deviations from the requirements of the Constitution the victims of their own folly.”
6
Respondents emphatically assert that the final word is the people’s word and that ultimately it is in the
hands of the people where the final decision rests. (Comment, pp. 18, 19, 22) Granting in gratia argumenti
that it is so, let it be an expression of the will of the people under a normal political situation and not
under the aegis of martial rule for as I have stated in Aquino vs. Comelec, et al.,supra,a referendum (and
now a plebiscite) held under a regime of martial law can be of no far reaching significance because it is
being accomplished under an atmosphere or climate of fear as it entails a wide area of curtailment and
infringement of individual rights, such as, human liberty, property rights, rights of free expression and
assembly, protection against unreasonable searches and seizures, liberty of abode and of travel, and so on.
4. The other issues such as the sufficiency and proper submission of the proposed amendments for
ratification by the people are expounded in Justice Teehankee’s Opinion. I wish to stress indeed that it is
incorrect to state that the thrust of the proposed amendments is the abolition of the interim National
Assembly and its substitution with an “interim Batasang Pambansa”, for that isnot all Proposed
amendment No. 6 will permit or allow the
concentration of power in one man—the Executive—Prime Minister or President or whatever you may
call him—for it gives him expressly (which the 1973 Constitution or the 1935 Constitution does not)
legislative powers even during the existence of the appropriate legislative body, dependent solely on the
executive’s judgment imminence on thereof.
the existence **
of a grave emergency or a threat or
_______________
6
Resolution on Motion for Reconsideration, L-34150, November 4, 1971, per Barredo, J., pp. 19-20, Supreme Court
Decisions, November, 1971.
**
6. Whenever in the judgment of the President (Prime Minister), there exists a grave emergency or a threat or imminence
thereof, or whenever the interim Batasang Pambansa or the regular National Assembly fails or is unable to act adequately on any
matter for any reason that in his judgment requires immediate action, he may, in order to meet the exigency, issue the necessary
decrees, orders
463
VOL. 73, OCTOBER 12, 1976 463

I must be forgiven if, not concerned with the present, I am haunted however by what can happen in the
future, when we shall all be gone. Verily, this is a matter of grave concern which necessitates full, mature,
sober deliberation of the people but which they can do only in a climate of freedom without the restraints
of martial law.
I close, remembering what Claro M. Recto, President of the Constitutional Convention which drafted
the 1935 Philippine Constitution, once said:
“ .... Nor is it enough that our people possess a written constitution in order that their government may be called
constitutional. To be deserving of this name, and to drive away all danger of anarchy as well as of dictatorship
whether by one man or a few, it is necessary that both the government authorities and the people faithfully observe
and obey the constitution, and that the citizens be duly conversant not only with their rights but also with their
duties.... ”
7
Jose P. Laurel who served his people as Justice of the Supreme Court of this country gave this reminder;
the grave and perilous task of halting transgressions and vindicating cherished rights is reposed mainly on
the judiciary and keepers of the purity and sanctity therefore let the of our Constitution.
Courts 8
be the vestal
On the basis of the foregoing, I vote to declare Presidential Decrees Nos. 991 and 1033
unconstitutional and enjoin the implementation thereof.
CONCURRING OPINION
CONCEPCION JR.,J.:
I vote for the dismissal of the petitions.
1. The issue is not political and therefore justiciable.
_______________
or letters of instructions, which shall form part of the law of the land. (Taken from the Barangay Ballot Form distributed by
COMELEC for Referendum-Plebiscite, October 16, 1976)
7
Speech upon conferment of the Doctor of Laws, Honoris Causa, by the Manila University, the Lawyers’ Journal, June 15,
1936, italics Ours.
8
The Lawyers’ Journal, March 15, 1936.
464

The term “political question”, as this Court has previously defined, refers to those questions which, under
the constitution, are to be decided by the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the Legislature or executive branch of the Government. It is
concerned with the issues particular measure.
dependent 1
upon the wisdom, not legality, of a
Here, the question raised is whether the President has authority to propose to the people amendments
to the Constitution which the petitioners claim is vested solely upon the National Assembly, the
constitutional convention called for the purpose, and the interim National Assembly. This is not a political
question since it involves the determination of conflicting claims of authority under the constitution.
In Gonzales vs. Comelec,
2
this Court, resolving the issue of whether or not a Resolution of

Congress, acting as a constituent assembly, violates the Constitution, ruled that the question is essentially
justiciable, not political, and hence, subject to judicial review.
In Tolentino vs. Comelec,
3
this Court finally dispelled all doubts as to its position regarding its
jurisdiction vis-a-vis the constitutionality of the acts of Congress, acting as a constituent assembly, as well
as those of a constitutional convention called for the purpose of proposing amendments to the
constitution. Insofar as observance of constitutional provisions on the procedure for amending the
constitution is concerned, the issue is cognizable by this Court under its powers of judicial review.
2. As to the merits, a brief backdrop of the decision to hold the referendum-plebiscite will help resolve the
issue. It is to be noted that under the 1973 Constitution, an interim National Assembly was organized to
the
123/125
to bring about an orderly parliamentary system of government.
transition 4
from the presidential The people, however,
probably distrustful of the members who are old-time politicians and constitutional delegates who had
voted themselves into membership in said the interim interim assembly National for Assembly, at least
seven voted years,
against 5
thus the creating convening a
of the
_______________
1
Tañada & Macapagal v. Cuenco, et al., 103 Phil. 1051.
2
L-28196, Nov. 9, 1967; 21 SCRA 774.
3
L-34150. Oct. 16, 1971, 41 SCRA 702.
4
Article XVII, Suction 1, Constitution.
5
Aquino vs. Comelec, L-40004, Jan. 31, 1975, 62 SCRA 275, 302.
465
VOL. 73, OCTOBER 12, 1976 465

political stalemate and a consequent delay’ in the transformation of the government into the parliamentary
system. To resolve the impasse, the President, at the instance of the barangays and sanggunian assemblies
through their duly authorized instrumentalities who recommended a study of the feasibility of abolishing
and replacing the interim National Assembly with another interim body truly representative of the people
in a reformed society, issued Presidential Decree No. 991, on September 2, 1976, calling for a national
referendum on October 16, 1976 to ascertain the wishes of the people as to the ways and means that may
be available to attain the objective; providing for a period of educational and information campaign on the
issues; and establishing the mechanics and manner for holding thereof. But the people, through their
barangays, addressed resolutions to the Batasang Bayan, expressing their desire to have the constitution
amended, thus prompting the President to issue Presidential Decree No. 1033, stating the questions to be
submitted to the people in the referendumplebiscite on October 16, 1976.
As will be seen, the authority to amend the Constitution was removed from the interim National
Assembly and transferred to the seat of sovereignty itself. Since the Constitution emanates from the
people who are the repository of all political powers, their authority to amend the Constitution through the
means they have adopted, aside from those mentioned in the Constitution, cannot be gainsaid. Not much
reflection is also needed to show that the President did not exercise his martial law legislative powers
when he proposed the amendments to the Constitution. He was merely acting as an instrument to carry
out the will of the people. Neither could he convene the interim National Assembly, as suggested by the
petitioners, without doing violence to the people’s will expressed overwhelmingly when they decided
against convening the interim assembly for at least seven years.
3. The period granted to the people to consider the proposed amendments is reasonably long and
enough to afford intelligent discussion of the issues to be voted upon. PD 991 has required the barangays
to hold assemblies or meetings to discuss and debate on the referendum questions, which in fact they have
been doing. Considering that the proposed amendments came from the representatives of the people
themselves, the people must have already formed a decision by this time on what stand to take on the
proposed amendments come the day for the
466

People vs. Abrogar
plebiscite. Besides, the Constitution itself requires the holding of a plebiscite (3)
125/125 for the ratification of an amendment not later than months after the approval of such amendment
or revision,
three 6
but without setting a definite period
within which such plebiscite shall not be held. From this I can only conclude that the framers of the
Constitution desired that only a short period shall elapse from the approval of such amendment or
resolution to its ratification by the people.
——o0o——
© Copyright 2018 Central Book Supply, Inc. All rights reserved.

Sanidad Vs COMELEC

Uploaded by

Copyright:

Available Formats

You might also like

Sanidad Vs COMELEC

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Sanidad Vs COMELEC

Uploaded by

Copyright:

Available Formats

7/16/2018 SUPREME COURT REPORTS ANNOTATED VOLUME 073

VOL. 73, OCTOBER 12, 1976 333

PABLO C. SANIDAD and PABLITO V. SANIDAD, petitioner, vs. HONORABLE COMMISSION ON

VICENTE M. GUZMAN, petitioner, vs. COMMISSION ELECTIONS, respondent.

334 SUPREME COURT REPORT ANNOTATED

VOL. 73, OCTOBER 12, 1976 355

356 SUPREME COURT REPORT ANNOTATED

358 SUPREME COURT REPORT ANNOTATED

constituent assembly to propose amendments to the Constitution; a referendum-plebiscite is untenable

VOL. 73, OCTOBER 12, 1976 359

360 SUPREME COURT REPORT ANNOTATED

the procedure followed or the

VOL. 73, OCTOBER 12, 1976 361

one of non-political impression. In the Plebiscite Cases,

the contention of the Solicitor General

362 SUPREME COURT REPORT ANNOTATED

VOL. 73, OCTOBER 12, 1976 363

had already settled that the incumbent President is vested

364 SUPREME COURT REPORT ANNOTATED

The President’s decision to defer the

VOL. 73, OCTOBER 12, 1976 365

366 SUPREME COURT REPORT ANNOTATED

368 SUPREME COURT REPORT ANNOTATED

VOL. 73, OCTOBER 12, 1976 369

370 SUPREME COURT REPORT ANNOTATED

VOL. 73, OCTOBER 12, 1976 371

Sanidad vs. Commission on Elections

372 SUPREME COURT REPORT ANNOTATED

VOL. 73, OCTOBER 12, 1976 373

374 SUPREME COURT REPORT ANNOTATED

VOL. 73, OCTOBER 12, 1976 375

376 SUPREME COURT REPORT ANNOTATED

VOL. 73, OCTOBER 12, 1976 377

VOL. 73, OCTOBER 12, 1976 379

380 SUPREME COURT REPORT ANNOTATED

VOL. 73, OCTOBER 12, 1976 381

382 SUPREME COURT REPORT ANNOTATED

VOL. 73, OCTOBER 12, 1976 383

384 SUPREME COURT REPORT ANNOTATED

Sanidad vs. Commission on Elections

VOL. 73, OCTOBER 12, 1976 385

386 SUPREME COURT REPORT ANNOTATED

VOL. 73, OCTOBER 12, 1976 387

the epochal and Ponce followed Enrile,

388 SUPREME COURT REPORT ANNOTATED

VOL. 73, OCTOBER 12, 1976 389

“there was a fuller treatment of the question of martial law.”

While it is the formulation of Willoughby

390 SUPREME COURT REPORT ANNOTATED

Thus: “So-called martial law, except in occupied territory of an enemy, is merely

VOL. 73, OCTOBER 12, 1976 391

392 SUPREME COURT REPORT ANNOTATED

VOL. 73, OCTOBER 12, 1976 393

394 SUPREME COURT REPORT ANNOTATED

VOL. 73, OCTOBER 12, 1976 395

It is to the credit of the late Professor Rossiter

396 SUPREME COURT REPORT ANNOTATED

VOL. 73, OCTOBER 12, 1976 397