Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 82585 November 14, 1988

MAXIMO V. SOLIVEN, ANTONIO V. ROCES, FREDERICK K. AGCAOLI, and

GODOFREDO L. MANZANAS, petitioners,
vs.
THE HON. RAMON P. MAKASIAR, Presiding Judge of the Regional Trial Court of
Manila, Branch 35, UNDERSECRETARY SILVESTRE BELLO III, of the Department
of Justice, LUIS C. VICTOR, THE CITY FISCAL OF MANILA and PRESIDENT
CORAZON C. AQUINO, respondents.

G.R. No. 82827 November 14, 1988

LUIS D. BELTRAN, petitioner,
vs.
THE HON. RAMON P. MAKASIAR, Presiding Judge of Branch 35 of the Regional
Trial Court, at Manila, THE HON. LUIS VICTOR, CITY FISCAL OF MANILA, PEOPLE
OF THE PHILIPPINES, SUPERINTENDENT OF THE WESTERN POLICE DISTRICT,
and THE MEMBERS OF THE PROCESS SERVING UNIT AT THE REGIONAL TRIAL
COURT OF MANILA, respondents.

G.R. No. 83979 November 14, 1988.

LUIS D. BELTRAN, petitioner,
vs.
EXECUTIVE SECRETARY CATALINO MACARAIG, SECRETARY OF JUSTICE
SEDFREY ORDOÑEZ, UNDERSECRETARY OF JUSTICE SILVESTRE BELLO III,
THE CITY FISCAL OF MANILA JESUS F. GUERRERO, and JUDGE RAMON P.
MAKASIAR, Presiding Judge of Branch 35 of the Regional Trial Court, at
Manila, respondents.

Angara, Abello, Concepcion, Regala and Cruz for petitioners in G.R. No. 82585.

Perfecto V. Fernandez, Jose P. Fernandez and Cristobal P. Fernandez for petitioner in

G.R. Nos. 82827 and 83979.

RESOLUTION

PER CURIAM:

In these consolidated cases, three principal issues were raised: (1) whether or not
petitioners were denied due process when informations for libel were filed against them
although the finding of the existence of a prima facie case was still under review by the
Secretary of Justice and, subsequently, by the President; (2) whether or not the
constitutional rights of Beltran were violated when respondent RTC judge issued a
warrant for his arrest without personally examining the complainant and the witnesses, if
any, to determine probable cause; and (3) whether or not the President of the
Philippines, under the Constitution, may initiate criminal proceedings against the
petitioners through the filing of a complaint-affidavit.

Subsequent events have rendered the first issue moot and academic. On March 30,
1988, the Secretary of Justice denied petitioners' motion for reconsideration and upheld
the resolution of the Undersecretary of Justice sustaining the City Fiscal's finding of
a prima facie case against petitioners. A second motion for reconsideration filed by
petitioner Beltran was denied by the Secretary of Justice on April 7, 1988. On appeal, the
President, through the Executive Secretary, affirmed the resolution of the Secretary of
Justice on May 2, 1988. The motion for reconsideration was denied by the Executive
Secretary on May 16, 1988. With these developments, petitioners' contention that they
have been denied the administrative remedies available under the law has lost factual
support.

It may also be added that with respect to petitioner Beltran, the allegation of denial of due
process of law in the preliminary investigation is negated by the fact that instead of
submitting his counter- affidavits, he filed a "Motion to Declare Proceedings Closed," in
effect waiving his right to refute the complaint by filing counter-affidavits. Due process of
law does not require that the respondent in a criminal case actually file his counter-
affidavits before the preliminary investigation is deemed completed. All that is required is
that the respondent be given the opportunity to submit counter-affidavits if he is so
minded.

The second issue, raised by petitioner Beltran, calls for an interpretation of the
constitutional provision on the issuance of warrants of arrest. The pertinent provision
reads:

Art. III, Sec. 2. The right of the people to be secure in their persons, houses, papers and
effects against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except
upon probable cause to be determined personally by the judge after examination nder
oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to be seized.

The addition of the word "personally" after the word "determined" and the deletion of the
grant of authority by the 1973 Constitution to issue warrants to "other responsible officers
as may be authorized by law," has apparently convinced petitioner Beltran that the
Constitution now requires the judge to personally examine the complainant and his
witnesses in his determination of probable cause for the issuance of warrants of arrest.
This is not an accurate interpretation.

What the Constitution underscores is the exclusive and personal responsibility of the
issuing judge to satisfy himself of the existence of probable cause. In satisfying himself of
the existence of probable cause for the issuance of a warrant of arrest, the judge is not
required to personally examine the complainant and his witnesses. Following established
doctrine and procedure, he shall: (1) personally evaluate the report and the supporting
documents submitted by the fiscal regarding the existence of probable cause and, on the
basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no probable
cause, he may disregard the fiscal's report and require the submission of supporting
affidavits of witnesses to aid him in arriving at a conclusion as to the existence of
probable cause.

Sound policy dictates this procedure, otherwise judges would be unduly laden with the
preliminary examination and investigation of criminal complaints instead of concentrating
on hearing and deciding cases filed before their courts.
On June 30, 1987, the Supreme Court unanimously adopted Circular No. 12, setting
down guidelines for the issuance of warrants of arrest. The procedure therein provided is
reiterated and clarified in this resolution.

It has not been shown that respondent judge has deviated from the prescribed
procedure. Thus, with regard to the issuance of the warrants of arrest, a finding of grave
abuse of discretion amounting to lack or excess of jurisdiction cannot be sustained.

Anent the third issue, petitioner Beltran argues that "the reasons which necessitate
presidential immunity from suit impose a correlative disability to file suit." He contends
that if criminal proceedings ensue by virtue of the President's filing of her complaint-
affidavit, she may subsequently have to be a witness for the prosecution, bringing her
under the trial court's jurisdiction. This, continues Beltran, would in an indirect way defeat
her privilege of immunity from suit, as by testifying on the witness stand, she would be
exposing herself to possible contempt of court or perjury.

The rationale for the grant to the President of the privilege of immunity from suit is to
assure the exercise of Presidential duties and functions free from any hindrance or
distraction, considering that being the Chief Executive of the Government is a job that,
aside from requiring all of the office holder's time, also demands undivided attention.

But this privilege of immunity from suit, pertains to the President by virtue of the office
and may be invoked only by the holder of the office; not by any other person in the
President's behalf. Thus, an accused in a criminal case in which the President is
complainant cannot raise the presidential privilege as a defense to prevent the case from
proceeding against such accused.

Moreover, there is nothing in our laws that would prevent the President from waiving the
privilege. Thus, if so minded the President may shed the protection afforded by the
privilege and submit to the court's jurisdiction. The choice of whether to exercise the
privilege or to waive it is solely the President's prerogative. It is a decision that cannot be
assumed and imposed by any other person.

As regards the contention of petitioner Beltran that he could not be held liable for libel
because of the privileged character or the publication, the Court reiterates that it is not a
trier of facts and that such a defense is best left to the trial court to appreciate after
receiving the evidence of the parties.

As to petitioner Beltran's claim that to allow the libel case to proceed would produce a
"chilling effect" on press freedom, the Court finds no basis at this stage to rule on the
point.

The petitions fail to establish that public respondents, through their separate acts, gravely
abused their discretion as to amount to lack of jurisdiction. Hence, the writs of certiorari
and prohibition prayed for cannot issue.

WHEREFORE, finding no grave abuse of discretion amounting to excess or lack of

jurisdiction on the part of the public respondents, the Court Resolved to DISMISS the
petitions in G. R. Nos. 82585, 82827 and 83979. The Order to maintain the status
quo contained in the Resolution of the Court en banc dated April 7, 1988 and reiterated
in the Resolution dated April 26, 1988 is LIFTED.

Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla,

Bidin, Sarmiento, Cortes, Griño-Aquino Medialdea and Regalado, JJ., concur.
 Separate Opinions

GUTIERREZ, JR., J., concurring:

I concur with the majority opinion insofar as it involves the three principal issues
mentioned in its opening statement. However, as to the more important issue on whether
or not the prosecution of the libel case would produce a "chilling effect" on press
freedom, I beg to reserve my vote. I believe this is the more important issue in these
petitions and it should be resolved now rather that later.

Consistent with our decision in Salonga v. Cruz Pano (134 SCRA 438 [1985]), the Court
should not hesitate to quash a criminal prosecution in the interest of more enlightened
and substantial justice where it is not alone the criminal liability of an accused in a
seemingly minor libel case which is involved but broader considerations of governmental
power versus a preferred freedom.

We have in these four petitions the unusual situation where the highest official of the
Republic and one who enjoys unprecedented public support asks for the prosecution of a
newspaper columnist, the publisher and chairman of the editorial board, the managing
editor and the business manager in a not too indubitable a case for alleged libel.

I am fully in accord with an all out prosecution if the effect will be limited to punishing a
newspaperman who, instead of observing accuracy and fairness, engages in
unwarranted personal attacks, irresponsible twisting of facts, of malicious distortions of
half-truths which tend to cause dishonor, discredit, or contempt of the complainant.
However, this case is not a simple prosecution for libel. We have as complainant a
powerful and popular President who heads the investigation and prosecution service and
appoints members of appellate courts but who feels so terribly maligned that she has
taken the unorthodox step of going to court inspite of the invocations of freedom of the
press which would inevitably follow.

I believe that this Court should have acted on this issue now instead of leaving the matter
to fiscals and defense lawyers to argue before a trial judge.

There is always bound to be harassment inherent in any criminal prosecution. Where the
harassment goes beyond the usual difficulties encountered by any accused and results in
an unwillingness of media to freely criticize government or to question government
handling of sensitive issues and public affairs, this Court and not a lower tribunal should
draw the demarcation line.

As early as March 8, 1918, the decision in United States v. Bustos (37 Phil. 731) stated
that "(c)omplete liberty to comment on the conduct of public men is a scalpel in the case
of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men
in public life may suffer under a hostile and unjust accusation; the wound can be
assuaged with the balm of a clear conscience." The Court pointed out that while
defamation is not authorized, criticism is to be expected and should be borne for the
common good.

In People v. Perfecto (43 Phil. 887 [1922]), the Court stated:

xxx xxx xxx

... No longer is there a Minister of the Crown own or a person in authority of such exalted
position that the citizen must speak of him only with bated breath. "In the eye of our
Constitution and laws, every man is a sovereign, a ruler and a freeman, and has equal
rights with every other man." (at p. 900)

In fact, the Court observed that high official position, instead of affording immunity from
slanderous and libelous charges, would actually invite attacks by those who desire to
create sensation. It would seem that what would ordinarily be slander if directed at the
typical person should be examined from various perspectives if directed at a high
government official. Again, the Supreme Court should draw this fine line instead of
leaving it to lower tribunals.

This Court has stressed as authoritative doctrine in Elizalde v. Gutierrez (76 SCRA 448
[1977]) that a prosecution for libel lacks justification if the offending words find sanctuary
within the shelter of the free press guaranty. In other words, a prosecution for libel should
not be allowed to continue, where after discounting the possibility that the words may not
be really that libelous, there is likely to be a chilling effect, a patently inhibiting factor on
the willingness of newspapermen, especially editors and publishers to courageously
perform their critical role in society. If, instead of merely reading more carefully what a
columnist writes in his daily column, the editors tell their people to lay off certain issues or
certain officials, the effect on a free press would be highly injurious.

Because many questions regarding press freedom are left unanswered by our resolution,
I must call attention to our decisions which caution that "no inroads on press freedom
should be allowed in the guise of punitive action visited on what otherwise should be
characterized as libel." (Lopez v. Court of Appeals, 34 SCRA 117 [1970]; See also the
citations in Elizalde v. Gutierrez, supra).

The United States Supreme Court is even more emphatic, to wit:

In deciding the question now, we are compelled by neither precedent nor policy to give
any more weight to the epithet "libel" than we have to other "mere labels" of state law. N.
A. A. C. P. v. Button, 371 US 415, 429, 9L ed 2d 405, 415, 83 S Ct 328. Like insurrection,
contempt, advocacy of unlawful acts, breach of the peace, obscenity, solicitation of legal
business, and the other various other formulae for the repression of expression that have
been challenged in this Court, libel can claim no talismanic immunity from constitutional
limitations. It must be measured by standards that satisfy the First Amendment.

xxx xxx xxx

Those who won our independence believed ... that public discussion is a political duty;
and that this should be a fundamental principle of the American government. They
recognized the risk to which all human institutions are subject. But they knew that order
cannot be secured merely through fear of punishment for its infraction; that it is
hazardous to discourage thought, hope and imagination; that fear breeds repression; that
repression breeds hate; that hate menaces stable government; that the path of safety lies
in the opportunity to discuss freely supposed grievances and proposed remedies; and
that the fitting remedy for evil counsel is good ones. Believing in the power of reason as
applied through public discussion, they eschewed silence coerced by law—the argument
of force in its worst form. ...

Thus we consider this case against the background of a profound national commitment to
the principle that debate on public issues should be uninhibited, robust, and wide open,
and that it may well include vehement, caustic, and sometimes unpleasantly sharp
attacks on government and public officials. ... (at pp. 700-701)
Shunting aside the individual liability of Mr. Luis Beltran, is there a prima facie showing
that Messrs. Maximo Soliven, Antonio V. Roces, Frederick K. Agcaoili, and Godofredo L.
Manzanas knowingly participated in a wilful purveying of falsehood? Considering the free
speech aspects of these petitions, should not a differentiated approach to their particular
liabilities be taken instead of lumping up everybody with the offending columnist? I realize
that the law includes publishers and editors but perhaps the "chilling effect" issue applies
with singular effectivity to publishers and editors vis-a-vis newspaper columnists. There is
no question that, ordinarily, libel is not protected by the free speech clause but we have
to understand that some provocative words, which if taken literally may appear to shame
or disparage a public figure, may really be intended to provoke debate on public issues
when uttered or written by a media personality. Will not a criminal prosecution in the type
of case now before us dampen the vigor and limit the variety of public debate? There are
many other questions arising from this unusual case which have not been considered.

I, of course, concur with the Court's opinion because it has decided to limit the issues to
narrowly drawn ones. I see no reason to disagree with the way the Court has resolved
them. The first issue on prematurity is moot. The second issue discusses a procedure
now embodied in the recently amended Rules of Court on how a Judge should proceed
before he issues a warrant of arrest. Anent the third issue, considerations of public policy
dictate that an incumbent President should not be sued. At the same time, the President
cannot stand by helplessly bereft of legal remedies if somebody vilifies or maligns him or
her.

The Court has decided to defer the "chilling effect" issue for a later day. To this, I take
exception. I know that most of our fiscals and judges are courageous individuals who
would not allow any considerations of possible consequences to their careers to stand in
the way of public duty. But why should we subject them to this problem? And why should
we allow the possibility of the trial court treating and deciding the case as one for ordinary
libel without bothering to fully explore the more important areas of concern, the extremely
difficult issues involving government power and freedom of expression.

However, since we have decided to defer the "chilling effect" issue for a later day, I limit
myself to reiterating the dissenting words of Mr. Justice Jackson in the American case
of Beaurnhais v. Illinois (343 U. S. 250) when he said:

If one can claim to announce the judgment of legal history on any subject, it is that
criminal libel laws are consistent with the concept of ordered liberty only when applied
with safeguards evolved to prevent their invasion of freedom of expression.

In the trial of the libel case against the petitioners, the safeguards in the name of freedom
of expression should be faithfully applied.

Separate Opinions

GUTIERREZ, JR., J., concurring:

I concur with the majority opinion insofar as it involves the three principal issues
mentioned in its opening statement. However, as to the more important issue on whether
or not the prosecution of the libel case would produce a "chilling effect" on press
freedom, I beg to reserve my vote. I believe this is the more important issue in these
petitions and it should be resolved now rather that later.

Consistent with our decision in Salonga v. Cruz Pano (134 SCRA 438 [1985]), the Court
should not hesitate to quash a criminal prosecution in the interest of more enlightened
and substantial justice where it is not alone the criminal liability of an accused in a
seemingly minor libel case which is involved but broader considerations of governmental
power versus a preferred freedom.

We have in these four petitions the unusual situation where the highest official of the
Republic and one who enjoys unprecedented public support asks for the prosecution of a
newspaper columnist, the publisher and chairman of the editorial board, the managing
editor and the business manager in a not too indubitable a case for alleged libel.

I am fully in accord with an all out prosecution if the effect will be limited to punishing a
newspaperman who, instead of observing accuracy and fairness, engages in
unwarranted personal attacks, irresponsible twisting of facts, of malicious distortions of
half-truths which tend to cause dishonor, discredit, or contempt of the complainant.
However, this case is not a simple prosecution for libel. We have as complainant a
powerful and popular President who heads the investigation and prosecution service and
appoints members of appellate courts but who feels so terribly maligned that she has
taken the unorthodox step of going to court inspite of the invocations of freedom of the
press which would inevitably follow.

I believe that this Court should have acted on this issue now instead of leaving the matter
to fiscals and defense lawyers to argue before a trial judge.

There is always bound to be harassment inherent in any criminal prosecution. Where the
harassment goes beyond the usual difficulties encountered by any accused and results in
an unwillingness of media to freely criticize government or to question government
handling of sensitive issues and public affairs, this Court and not a lower tribunal should
draw the demarcation line.

As early as March 8, 1918, the decision in United States v. Bustos (37 Phil. 731) stated
that "(c)omplete liberty to comment on the conduct of public men is a scalpel in the case
of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men
in public life may suffer under a hostile and unjust accusation; the wound can be
assuaged with the balm of a clear conscience." The Court pointed out that while
defamation is not authorized, criticism is to be expected and should be borne for the
common good.

In People v. Perfecto (43 Phil. 887 [1922]), the Court stated:

xxx xxx xxx

... No longer is there a Minister of the Crown own or a person in authority of such exalted
position that the citizen must speak of him only with bated breath. "In the eye of our
Constitution and laws, every man is a sovereign, a ruler and a freeman, and has equal
rights with every other man." (at p. 900)

In fact, the Court observed that high official position, instead of affording immunity from
slanderous and libelous charges, would actually invite attacks by those who desire to
create sensation. It would seem that what would ordinarily be slander if directed at the
typical person should be examined from various perspectives if directed at a high
government official. Again, the Supreme Court should draw this fine line instead of
leaving it to lower tribunals.

This Court has stressed as authoritative doctrine in Elizalde v. Gutierrez (76 SCRA 448
[1977]) that a prosecution for libel lacks justification if the offending words find sanctuary
within the shelter of the free press guaranty. In other words, a prosecution for libel should
not be allowed to continue, where after discounting the possibility that the words may not
be really that libelous, there is likely to be a chilling effect, a patently inhibiting factor on
the willingness of newspapermen, especially editors and publishers to courageously
perform their critical role in society. If, instead of merely reading more carefully what a
columnist writes in his daily column, the editors tell their people to lay off certain issues or
certain officials, the effect on a free press would be highly injurious.

Because many questions regarding press freedom are left unanswered by our resolution,
I must call attention to our decisions which caution that "no inroads on press freedom
should be allowed in the guise of punitive action visited on what otherwise should be
characterized as libel." (Lopez v. Court of Appeals, 34 SCRA 117 [1970]; See also the
citations in Elizalde v. Gutierrez, supra).
<äre||anº•1àw>

The United States Supreme Court is even more emphatic, to wit:

In deciding the question now, we are compelled by neither precedent nor policy to give
any more weight to the epithet "libel" than we have to other "mere labels" of state law. N.
A. A. C. P. v. Button, 371 US 415, 429, 9L ed 2d 405, 415, 83 S Ct 328. Like insurrection,
contempt, advocacy of unlawful acts, breach of the peace, obscenity, solicitation of legal
business, and the other various other formulae for the repression of expression that have
been challenged in this Court, libel can claim no talismanic immunity from constitutional
limitations. It must be measured by standards that satisfy the First Amendment.

xxx xxx xxx

Those who won our independence believed ... that public discussion is a political duty;
and that this should be a fundamental principle of the American government. They
recognized the risk to which all human institutions are subject. But they knew that order
cannot be secured merely through fear of punishment for its infraction; that it is
hazardous to discourage thought, hope and imagination; that fear breeds repression; that
repression breeds hate; that hate menaces stable government; that the path of safety lies
in the opportunity to discuss freely supposed grievances and proposed remedies; and
that the fitting remedy for evil counsel is good ones. Believing in the power of reason as
applied through public discussion, they eschewed silence coerced by law—the argument
of force in its worst form. ...

Thus we consider this case against the background of a profound national commitment to
the principle that debate on public issues should be uninhibited, robust, and wide open,
and that it may well include vehement, caustic, and sometimes unpleasantly sharp
attacks on government and public officials. ... (at pp. 700-701)

Shunting aside the individual liability of Mr. Luis Beltran, is there a prima facie showing
that Messrs. Maximo Soliven, Antonio V. Roces, Frederick K. Agcaoili, and Godofredo L.
Manzanas knowingly participated in a wilful purveying of falsehood? Considering the free
speech aspects of these petitions, should not a differentiated approach to their particular
liabilities be taken instead of lumping up everybody with the offending columnist? I realize
that the law includes publishers and editors but perhaps the "chilling effect" issue applies
with singular effectivity to publishers and editors vis-a-vis newspaper columnists. There is
no question that, ordinarily, libel is not protected by the free speech clause but we have
to understand that some provocative words, which if taken literally may appear to shame
or disparage a public figure, may really be intended to provoke debate on public issues
when uttered or written by a media personality. Will not a criminal prosecution in the type
of case now before us dampen the vigor and limit the variety of public debate? There are
many other questions arising from this unusual case which have not been considered.

I, of course, concur with the Court's opinion because it has decided to limit the issues to
narrowly drawn ones. I see no reason to disagree with the way the Court has resolved
them. The first issue on prematurity is moot. The second issue discusses a procedure
now embodied in the recently amended Rules of Court on how a Judge should proceed
before he issues a warrant of arrest. Anent the third issue, considerations of public policy
dictate that an incumbent President should not be sued. At the same time, the President
cannot stand by helplessly bereft of legal remedies if somebody vilifies or maligns him or
her.

The Court has decided to defer the "chilling effect" issue for a later day. To this, I take
exception. I know that most of our fiscals and judges are courageous individuals who
would not allow any considerations of possible consequences to their careers to stand in
the way of public duty. But why should we subject them to this problem? And why should
we allow the possibility of the trial court treating and deciding the case as one for ordinary
libel without bothering to fully explore the more important areas of concern, the extremely
difficult issues involving government power and freedom of expression.

However, since we have decided to defer the "chilling effect" issue for a later day, I limit
myself to reiterating the dissenting words of Mr. Justice Jackson in the American case
of Beaurnhais v. Illinois (343 U. S. 250) when he said:

If one can claim to announce the judgment of legal history on any subject, it is that
criminal libel laws are consistent with the concept of ordered liberty only when applied
with safeguards evolved to prevent their invasion of freedom of expression.

In the trial of the libel case against the petitioners, the safeguards in the name of freedom
of expression should be faithfully applied.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-47329 December 9, 1977

ERNESTO C. HIDALGO, petitioner,
vs.
HONORABLE FERDINAND MARCOS Y EDRALIN and COMMISSION ON
ELECTIONS, respondents.

CASTRO, C.J.:

Considering the allegations, issues presented, and arguments adduced (a) in the petition
for mandamus and/or prohibition, (b) in the Solicitor General's Comment on the petition,
(c) in the petitioner's reply to the Comment, and (d) at the hearing on December 1, 1977,
the Court, without passing upon the question of the suability of the President, considering
that the Commission on Elections, which is the government entity called upon to
implement Presidential Decree No. 1229, is impleaded, Resolved NOT to give due
course to the petition and to DISMISS the same, for the reasons hereunder set forth.

(1) The President cannot be compelled by mandamus or otherwise to convene the

"interim National Assembly" because. inter alia, this body was abrogated and supplanted
by the interim Batasang Pambansa by virtue of the 1976 amendments to the
Constitution, particularly Amendment No. I which partly provides- that "There shall be, in
lieu of the interim National Assembly. an Interim Batasang Pambansa."

(2) The 1976 amendments to The Constitution ratified by the people in the October 16-
17, 1976 referendum-plebiscite and now form part of the Constitution, hence, the
December 17, 1977 referendum, contrary to the petitioner's posture, may not be said to
be designed to effectuate their ratification. The holding of the coming referendum is an
exercise authorized by one of those amendments, i.e., Amendment No. 7, which provides
that a referendum 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."

(3) No constitutional infirmity attaches to Presidential Decree No. 1229 because the
referendum call for therein will not result in an amendment to the Constitution. The
question, "Do you vote that President Ferdinand E. Marcos continue in office as
incumbent President and be Prime Minister after the organization of the Interim Batasang
Pambansa as provided for in Amendment No. 3 of the 1976 Amendments to the
Constitution to be submitted to the people in the December 17, 1977 referendum, is in
neither the nature nor the form of an amendments It merely asks the people to either
reaffirm or repudiate the confidence in the President which they had previously
expressed. If the people vote "yes," Amendment No. 3, which provides, inter alia, that
"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,"
will simply be reaffirmed and reinforced. If the people vote "no," the President, as he has
categorically announced, will in deference to "the will of the people and exercising a
public officer's prerogative, resign. The cessation in office, for any reason, by the
incumbent President will not result in an amendment to the Constitution, the provisions of
which will remain unaltered.

It is clear from the above that the petition does not pose any question of sufficient
importance or significance to warrant the further attention of the Court. the dismissal of
the instant petition is immediately executory.

Makasiar, Antonio, Aquino, Concepcion Jr., Santos, Fernandez and Guerrero, JJ.,
concur.

Fernando, J., is on official leave.

Barredo, J., concurs and reiterate his separate opinion in L47245.

Martin, J., is on sick leave.

Separate Opinions

 
TEEHANKEE, J., dissenting:

I vote to give due course to the petition and to grant the same insofar as it prays that the
scheduled December 17, 1977 referendum be enjoined.

1. The petition basically questions the validity of the October 1976 Amendments to the
1973 Constitution for not having been proposed nor adopted in accordance with the
mandatory provisions of Article XVI thereof (granting the constituent power to the regular
National Assembly) or of Transitory Article XVII, section 15 thereof (granting the
constituent power to the interim National Assembly). The petition should be granted, for
as stated in my dissenting opinion in Sanidad vs. Comelec 1, "(T)he transcendental
constituent power to propose and approve amendments to the Constitution as well as set up
the machinery and prescribe the procedure for the ratification of his proposals has been
withheld from the President (Prime Minister) as sole repository of the Executive Power,
presumably in view of the immense powers already vested in him by the Constitution but just
as importantly. because by the very nature of the constituent power, such amendments
proposals have to be prepared, deliberated and matured by a deliberative assembly of
representatives such as the interim National Assembly and hence may not be antithetically
entrusted to one man."

2. Hence, I held therein that under the controlling doctrine of Tolentino vs. Comelec 2 The
October 16, 1976 Referendum-Plebiscite to adopt the October, 1976 amendments which
created an interim Batasang Pambansa in lieu of the interim National Assembly could not
receive the Court's sanction since the Court had ruled in Tolentino that the Constitutional
provisions on amendments "dealing with the procedure or manner of amending the
fundamental law are binding upon the Convention and the other departments of the
government (and) are no less binding upon the people" and "the very Idea of departing from
the fundamental law is anachronistic in the realm of constitutionalism and repugnant to the
essence of the rule of law."3
In point of law, I submitted that it was "not legally tenable" for the majority in the  Sanidad case
"without overruling the controlling precedent of Tolentino (and without mustering the required
majority vote of eight] to so overrule since there was only a plurality (not a majority) of 7 out of
10 votes sustaining the incumbent President's exercise of constituent powers "to accept the
proposed amendments as valid notwithstanding their being 'not in conformity with the letter.
spirit and intent of the provision of the charter for effecting amendments.' "

3. Prescinding from the foregoing, as stated in my separate dissenting opinion in the

companion case of De la Llana vs. Comelec resolved by the Court on even date, (and
herein reproduced by reference) the question to be submitted at the scheduled
December 17, 1977 exercise is not one that may properly be submitted at a referendum
since it does not fall within the context and purview of "any important matter, whether of
national or local interest" that may be submitted in a referendum "to ascertain the will of
the people" under paragraph 7 of the October, 1976 Amendments (which authorized for
the first time the holding of such referendums).

The matter of President Marcos continuing in office as incumbent President (when he as

incumbent President and the Batasang Bayan unanimously concur that "no election is
possible under the Constitution for the position he presently holds" and to be Prime
Minister after the organization of the Interim Batasang Pambansa as provided for in
Amendment No. 3 of the 1976 Amendments to the Constitution is not a proper subject for
submittal in a referendum, which is purely consultative and does not authorize a yes or
no vote on the continuation in office of a single personality (notwithstanding the majority's
contrary dictum).

4. The proposed question would in effect do away with and render nugatory the
provisions of the Constitution for regular and free contested elections insofar as they
provide that the members of the regular National Assembly 6 or the interim Assembly 7 (as
proposed to be substituted by the interim Batasang Pambansa 8) shall elect their Prime
Minister 9 and gives currency to petitioner's apprehensions that such referendums are being
used to replace the general elections called for by the Constitution .  10 The fundamental
provisions of the Constitution which call for contested elections. with the parliament (regular
or interim National Assembly) vested with the power of withdrawing its confidence from the
Prime Minister "by electing a successor by a majority vote of all its members" 11 and the Prime
Minister advising the President (as the symbolic head of state 12) in writing to dissolve the
National Assembly "whenever the need arises for a popular vote of confidence on
fundamental issues," whereupon the President shall so dissolve the National Assembly and
call for new elections, 13 would thus be eroded and nullified. Such erosion by means of
referendums of the whole structure and spirit of the Constitution for free contested elections
and of the parliamentary system of government therein mandated should not receive the
sanction of the Court.

Munoz Palma, J., concurs.

MUÑOZ PALMA, J.: dissenting:

In the performance of my duties as a private citizen I abide by the majority decisions of

this Tribunal, but as a member of the Court I must feel free to speak on the basis of my
own opinion on the transcendental legal questions posed in a litigation before us, for I
have sworn to preserve and defend the Constitution as a Justice of the highest Court of
the land.

I concur with the dissenting Opinion of Justice Claudio Teehankee in this case and state
in addition the following: For the same reasons that I have given in Gualberto J. dela
Llana vs. Comelec, L-47245, there is no other recourse for me but to dissent from the
majority Resolution and vote to give due course to this Petition of Ernesto Hidalgo and to
enjoin the forthcoming referendum of December 17, 1977 provided for in P.D. 1229.
In Sanidad vs. Commission on Elections, et al., L-44640 and others, October 12, 1976, it
is my view that P.D. 991 and 1033 which called for a national referendum-plebiscite on
Oct. 16, 1976 for the purpose of securing the vote of the people on certain proposed
amendments to the Constitution of 1973, are null and void for they contravene Article XVI
on the amendatory process of the 1973 Constitution and Section 15 of Article XVII,
Transitory Provisions, thereof.

Considering that the forthcoming Referendum of December 17, 1977 submits the
following question:

Do you vote that President Ferdinand E. Marcos continue in office as incumbent

President and be Prime Minister after the organization of the Interim Batasang
Pambansa as provided for in Amendment No. 3 of the 1976 amendments to the
Constitution?

thereby making reference to amendment No. 3 of the 1976 Amendments to the

Constitution,* and considering further that the proposed referendum is being justified under amendment No. 7
thereof, ** it follows that P.D. 1229 is null and void for being without constitutional and legal basis. Amendments 3 and 7 were
not validly proposed and ratified as discussed in the dissenting Opinions in Sanidad.

2. The issue raised by Petitioner that P.D. 1229 will result in effecting an amendment to
the Constitution merits serious consideration from the Court. I cannot but share the fears
and of petitioner Hidalgo that the call for the people to vote on the proposed question
although denominated as a referendum will in reality cause further amendment to the
Constitution in the sense that the offices of the President and Prime Minister are merged
in one person for an indefinite period of time thereby getting at naught the provisions of
the Constitution on the form of government being constituted and abolishing the separate
positions of "President of the Philippines" and "Prime Minister" which have been created
under Articles VII and IX respectively of the 1973 Constitution,

What will be "institutionalized" (borrowing the term used in P.D. 1229) is the
concentration of the powers of President and Prime Minister in one particular individual
for an indefinite length of time divesting the interim National Assembly (now Interim
Batasang Pambansa) and even the regular National Assembly, if and when two are
organized, of the power and prerogative to elect a President and Prime Minister of their
choice for a term expressly provided for the Constitution. Under Sec. 2, Article VII the
Presidents term is for six years, while the Prime Minister has no fixed term but holds his
post as long as he enjoys the confidence of the National Assembly that elected him. With
a non confidence vote, the Prime Minister steps down from his post. (Sec. 13(1), Art.
VIII ).

If the purpose of P.D. 1229 is to "institutionalize the precedent and tradition of the Chief
of State or Head of the Government submitting himself to the accounting of the people
regularly and periodically when circumstances so require," such objective will be
achieved by constituting the legislative body of the government, the National Assembly,
as provided for in Section 2, Article VIII of the 1973 Constitution, to whom the Prime
Minister and the Cabinet shall be responsible for the program of the government and
determination of the guidelines of the national policy. (Sec. 2, Art, IX)

In a republican state, and the Philippines is one (Sec. 1, Art. 11), the people, in whom the
supreme power resides, govern through their duly elected representatives in a legislative
body, and in the parliamentary system provided for in the Constitution, the powers of
government are equally shared by the National Assembly on the one hand and the Prime
Minister and the Cabinet on the other. Accountability to the people is assured through the
regular processes provided for in the Constitution, more particularly Section 13, Article
VIII thereof, and not through referenda.
If the desire of the national leaders is to accomplish certain basic changes in our system
of government, such as may be a reversion to the presidential type, let the changes be
submitted to the people in their true context and through constitutional amendatory
processes, but not by means of referendums.

Hence, my dissenting vote.

Separate Opinions

TEEHANKEE, J., dissenting:

I vote to give due course to the petition and to grant the same insofar as it prays that the
scheduled December 17, 1977 referendum be enjoined.

1. The petition basically questions the validity of the October 1976 Amendments to the
1973 Constitution for not having been proposed nor adopted in accordance with the
mandatory provisions of Article XVI thereof (granting the constituent power to the regular
National Assembly) or of Transitory Article XVII, section 15 thereof (granting the
constituent power to the interim National Assembly). The petition should be granted, for
as stated in my dissenting opinion in Sanidad vs. Comelec 1, "(T)he transcendental
constituent power to propose and approve amendments to the Constitution as well as set up
the machinery and prescribe the procedure for the ratification of his proposals has been
withheld from the President (Prime Minister) as sole repository of the Executive Power,
presumably in view of the immense powers already vested in him by the Constitution but just
as importantly. because by the very nature of the constituent power, such amendments
proposals have to be prepared, deliberated and matured by a deliberative assembly of
representatives such as the interim National Assembly and hence may not be antithetically
entrusted to one man."

2. Hence, I held therein that under the controlling doctrine of Tolentino vs. Comelec 2 The
October 16, 1976 Referendum-Plebiscite to adopt the October, 1976 amendments which
created an interim Batasang Pambansa in lieu of the interim National Assembly could not
receive the Court's sanction since the Court had ruled in Tolentino that the Constitutional
provisions on amendments "dealing with the procedure or manner of amending the
fundamental law are binding upon the Convention and the other departments of the
government (and) are no less binding upon the people" and "the very Idea of departing from
the fundamental law is anachronistic in the realm of constitutionalism and repugnant to the
essence of the rule of law."3

In point of law, I submitted that it was "not legally tenable" for the majority in
the Sanidad case "without overruling the controlling precedent of Tolentino (and without
mustering the required majority vote of eight] to so overrule since there was only a
plurality (not a majority) of 7 out of 10 votes sustaining the incumbent President's
exercise of constituent powers "to accept the proposed amendments as valid
notwithstanding their being 'not in conformity with the letter. spirit and intent of the
provision of the charter for effecting amendments.' "

3. Prescinding from the foregoing, as stated in my separate dissenting opinion in the

companion case of De la Llana vs. Comelec resolved by the Court on even date, (and
herein reproduced by reference) the question to be submitted at the scheduled
December 17, 1977 exercise is not one that may properly be submitted at a referendum
since it does not fall within the context and purview of "any important matter, whether of
national or local interest" that may be submitted in a referendum "to ascertain the will of
the people" under paragraph 7 of the October, 1976 Amendments (which authorized for
the first time the holding of such referendums).

The matter of President Marcos continuing in office as incumbent President (when he as

incumbent President and the Batasang Bayan unanimously concur that "no election is
possible under the Constitution for the position he presently holds" and to be Prime
Minister after the organization of the Interim Batasang Pambansa as provided for in
Amendment No. 3 of the 1976 Amendments to the Constitution is not a proper subject for
submittal in a referendum, which is purely consultative and does not authorize a yes or
no vote on the continuation in office of a single personality (notwithstanding the majority's
contrary dictum).

4. The proposed question would in effect do away with and render nugatory the
provisions of the Constitution for regular and free contested elections insofar as they
provide that the members of the regular National Assembly 6 or the interim Assembly 7 (as
proposed to be substituted by the interim Batasang Pambansa 8) shall elect their Prime
Minister 9 and gives currency to petitioner's apprehensions that such referendums are being
used to replace the general elections called for by the Constitution . 10 The fundamental
provisions of the Constitution which call for contested elections. with the parliament (regular
or interim National Assembly) vested with the power of withdrawing its confidence from the
Prime Minister "by electing a successor by a majority vote of all its members" 11 and the Prime
Minister advising the President (as the symbolic head of state 12) in writing to dissolve the
National Assembly "whenever the need arises for a popular vote of confidence on
fundamental issues," whereupon the President shall so dissolve the National Assembly and
call for new elections, 13 would thus be eroded and nullified. Such erosion by means of
referendums of the whole structure and spirit of the Constitution for free contested elections
and of the parliamentary system of government therein mandated should not receive the
sanction of the Court.

Munoz Palma, J., concurs.

MUÑOZ PALMA, J.: dissenting:

In the performance of my duties as a private citizen I abide by the majority decisions of

this Tribunal, but as a member of the Court I must feel free to speak on the basis of my
own opinion on the transcendental legal questions posed in a litigation before us, for I
have sworn to preserve and defend the Constitution as a Justice of the highest Court of
the land.

I concur with the dissenting Opinion of Justice Claudio Teehankee in this case and state
in addition the following: For the same reasons that I have given in Gualberto J. dela
Llana vs. Comelec, L-47245, there is no other recourse for me but to dissent from the
majority Resolution and vote to give due course to this Petition of Ernesto Hidalgo and to
enjoin the forthcoming referendum of December 17, 1977 provided for in P.D. 1229.

In Sanidad vs. Commission on Elections, et al., L-44640 and others, October 12, 1976, it
is my view that P.D. 991 and 1033 which called for a national referendum-plebiscite on
Oct. 16, 1976 for the purpose of securing the vote of the people on certain proposed
amendments to the Constitution of 1973, are null and void for they contravene Article XVI
on the amendatory process of the 1973 Constitution and Section 15 of Article XVII,
Transitory Provisions, thereof.

Considering that the forthcoming Referendum of December 17, 1977 submits the
following question:
Do you vote that President Ferdinand E. Marcos continue in office as incumbent
President and be Prime Minister after the organization of the Interim Batasang
Pambansa as provided for in Amendment No. 3 of the 1976 amendments to the
Constitution?

thereby making reference to amendment No. 3 of the 1976 Amendments to the

Constitution, * and considering further that the proposed referendum is being justified under amendment No. 7
thereof, ** it follows that P.D. 1229 is null and void for being without constitutional and legal basis. Amendments 3 and 7 were
not validly proposed and ratified as discussed in the dissenting Opinions in Sanidad.

2. The issue raised by Petitioner that P.D. 1229 will result in effecting an amendment to
the Constitution merits serious consideration from the Court. I cannot but share the fears
and of petitioner Hidalgo that the call for the people to vote on the proposed question
although denominated as a referendum will in reality cause further amendment to the
Constitution in the sense that the offices of the President and Prime Minister are merged
in one person for an indefinite period of time thereby getting at naught the provisions of
the Constitution on the form of government being constituted and abolishing the separate
positions of "President of the Philippines" and "Prime Minister" which have been created
under Articles VII and IX respectively of the 1973 Constitution,

What will be "institutionalized" (borrowing the term used in P.D. 1229) is the
concentration of the powers of President and Prime Minister in one particular individual
for an indefinite length of time divesting the interim National Assembly (now Interim
Batasang Pambansa) and even the regular National Assembly, if and when two are
organized, of the power and prerogative to elect a President and Prime Minister of their
choice for a term expressly provided for the Constitution. Under Sec. 2, Article VII the
Presidents term is for six years, while the Prime Minister has no fixed term but holds his
post as long as he enjoys the confidence of the National Assembly that elected him. With
a non confidence vote, the Prime Minister steps down from his post. (Sec. 13(1), Art.
VIII ).

If the purpose of P.D. 1229 is to "institutionalize the precedent and tradition of the Chief
of State or Head of the Government submitting himself to the accounting of the people
regularly and periodically when circumstances so require," such objective will be
achieved by constituting the legislative body of the government, the National Assembly,
as provided for in Section 2, Article VIII of the 1973 Constitution, to whom the Prime
Minister and the Cabinet shall be responsible for the program of the government and
determination of the guidelines of the national policy. (Sec. 2, Art, IX)

In a republican state, and the Philippines is one (Sec. 1, Art. 11), the people, in whom the
supreme power resides, govern through their duly elected representatives in a legislative
body, and in the parliamentary system provided for in the Constitution, the powers of
government are equally shared by the National Assembly on the one hand and the Prime
Minister and the Cabinet on the other. Accountability to the people is assured through the
regular processes provided for in the Constitution, more particularly Section 13, Article
VIII thereof, and not through referenda.

If the desire of the national leaders is to accomplish certain basic changes in our system
of government, such as may be a reversion to the presidential type, let the changes be
submitted to the people in their true context and through constitutional amendatory
processes, but not by means of referendums.

Hence, my dissenting vote.