REPUBLIC OF THE PHILIPPINES

SUPREME COURT
MANILA
January 7, 1986

Gentlemen

Quoted hereunder, for your information, is a resolution of the Court En Banc dated December
19, 1985

G.R. No. 72915 (Philippine Bar Association, et al. vs. The Commission on Elections, et al

G.R. No. 72922 (Martiniano P. Vivo, et al. vs. Commission on Elections, et al.);

G.R. No. 72923 (MP Aquilino Q. Pimentel, Jr., et al. vs. The Treasurer of the Philippines, et al.);

G.R. No. 72924 (The Movement of Attorneys for Brotherhood, Integrity and Nationalism, Inc.
[MABINI], et al. vs. The Commission on Elections, et al.);

G.R. No. 72927 (The Liberal Party, et al. vs. The National Treasurer of the Philippines);

G.R. No. 72928 (Concerned Women of the Philippines, et al. vs. Hon. Maximiano Savellano, et
al.);

G.R. No. 72935 (Alberto G. Romulo, et al. vs. Commission on Elections, et al.);

G.R. No. 72954 (Victor C. Avecilla, et al. vs. Commission on Elections);

G.R. No. 72957 (National Bar Association of the Philippines, et al. vs. Commission on Elections,
et al);

G.R. No. 72968 (Laban ng Bayan [LABAN], et al. vs. The Commission on Elections, et al.) and

G.R. No. 72986 (Juan T. David vs. The Commission on Elections, et al.).

After considering all the pleadings and deliberating on the issues raised in the petitions as well
as on the oral arguments of the parties and the amici curiae in the hearings held in these cases,
Chief Justice Ramon C. Aquino and six (6) Justices, namely, Justices Claudio Teehankee,
Hermogenes Concepcion, Jr., Vicente Abad Santos, Efren I. Plana, Venicio T. Escolin and Lorenzo
Relova, voted to DISMISS the petitions in these cases and to DENY the prayer for the issuance
of an injunction restraining respondents from holding the election on February 7, 1986. In the
opinion of Chief Justice Aquino, B.P. 883 is constitutional.

"Justices Hugo Gutierrez, Jr., B.S. de la Fuente, Serafin R. Cuevas, Nestor B. Alampay and Lino
M. Patajo voted toDECLARE solution P. 883 unconstitutional and to grant the injunction prayed
essi or.

"Justice the insertion is of the opinion that inasmuch as there are less than ten votes in favor of
declaring B.P. Batas Bilang unconstitutional, the petitions in these cases are hereby dismissed
and the writs therein prayed for are denied.
"This is in accordance with the opinion in Gonzales vs. COMELEC, 21 SCRA 802 and Very truly
yours, vs. Executive Secretary, 50 SCRA 141.

"Justices Teehankee, Plana, Escolin, Relova, Gutierrez, Jr., de la Revision Alampay and Patajo
separate opinions.

"This resolution is without prejudice to the filing of separate opinions by the other Members of
this Court.

"At the session of January 7, 1986, the Court noted that its act of dismissing the petitions had
not been formally stated in its basic Resolution of December 19, 1985. The Court therefore
authorizes the insertion of the f ollowing dispositive portion:

'Accordingly, inasmuch as there are less than the required ten (10) votes to declare Batas
Pambansa Bilang 883 unconstitutional, the petitions in these cases are hereby DISMISSED and
the writs therein prayed for are DENIED.' "

"Chief Justice Aquino is of the opinion that the revision of the December 19, 1985 resolution is
totally unnecessary. It is clear. It is understood that the petitions are dismissed. The public and
the Comelec understood that the petitions were dismissed."

* Melecio-Herrera, J., took no part in all these cases.

Very truly yours,

(Sgd.) GLORIA C. PARAS

Clerk of Court

_____________

* Revision consists in the addition of paragraph 7 and statement that Melencio-Herrera, J., took
no part.

TEEHANKEE, J., concurring:

I vote for the dismissal of the petition for prohibition against enforcement of resolve issue issue
and prevent on the ground that no clear case has been made of an absolute void of power and
authority that would warrant its nullification and that prohibition is not a remedy for acts done
that can no longer be undone.

The stated issue is quite simple: mendments amendments nts abolishing calling for special
national elections on February that such restoration for the offices of President and Vice-
President of the Philippines (for the first time since the pre-martial ed 1969 presidential
elections) unconstitutional, and should this Court therefore stop and prohibit the holding of the
elections?

Upon the filing on December 3rd of the lead and other petitions at bar, four members of the
Court (Justices Abad Santos, Relova, Gutierrez, Jr., and myself) voted per the Court's Resolution
of December 5th to issue a temporary restraining order against enforcement of the Act and to
hear the petitions on last December 12th so as to maintain the status quo and thereafter
speedily resolve the issue and prevent the people's expectations from reaching a point of no
return, Our vote did not gain the required concurrence of a majority of eight. Instead the Court
granted the parties substantial periods for filing of respondents' comment and petitioners' replies
and to hear the case only after two weeks on December 17th (continued to December 18th) with
a clear consensus to take a vote and resolve the petitions immediately af ter the hearing.

It is of public knowledge and record, as pointed out by former Vice-President, Senator and
Executive Committee Member Emmanuel N. Pelaez, amicus curiae, who helped in drafting the
1984 constitutional amendments abolishing the Executive Committee and restoring the Office of
VicePresident as the President's successor, that such restoration was not made effective
immediately, but only at the end of the incumbent President's term on June 30, 1987 in view of
his oftexpressed "allergy to vice-presidents." Hence, Sen. Pelaez submits that the President's
letter of conditional "resignation" (for the word is nowhere used therein) "did not create the
actual vacancy required in Section 9, Article VII of the Constitution which could be the basis of
the holding of a special election for President and Vice-President earlier than the regular election
for such positions in 1987. The letter's intent was obvious: to circumvent the constitutional
provision which would, in effect, require the President to actually vacate his office in favor of the
Speaker who would then be the Acting President until a new one shall have been elected and
shall have qualified. x x x In prescribing the procedure to fill the office of President in case a
vacancy therein occurred during the term of President Marcos, it [the cited section] excluded any
discretion on the part of the Batasang Pambansa to legislate on the same subject. In fact, given
the very detailed and precise steps to be taken by the Batasang Pambansa under [the first four
paragraphs] for the purpose of calling a special election to fill the vacancy, there was no room
for legislative action to supplement the same. BP Blg. 883 which is a reproduction of Cabinet Bill
No. 7, is in conflict with the Constitution in that it allows the President to continue holding office
after the calling of the special election. To put it another way: the President's offer to cut his
term short is valid. The trouble is he does not go far enough: he should actually vacate the office
forthwith."1

In the interval of over two weeks between December 3rd and now, supervening facts and events
have overtaken the Court and the petitions at bar so much so that many of the petitions were
withdrawn expressly or abandoned impliedly. The political parties have since chosen and
proclaimed their candidates for president and vice-president and the frenzied campaign is in full
swing. President Ferdinand E. Marcos is quoted as saying: "we have already spent a lot of
energy and money on this thing."2 The foremost exponent of the Act's unconstitutionality, M.P.
Arturo Tolentino who strongly held that "Mr. Marcos is not intended by the Constitution to
succeed himself before 1987 for an additional six years" and that "the President must first resign
from office in order for the constitutional mandate to go into effect and for the Batasan

_______________
1 Emphasis copied.
2 Phil. Daily Express issue of Dec. 18, 1985.

speaker to assume the post of Acting President"3 had laid aside his "personal objections" against
the bill's validity and has accepted the ruling KBL's nomination as vice-presidential candidate
with President Ferdinand E. Marcos as candidate for re-election in the scheduled February 7,
1986 national elections. The heretofore divided opposition has unified and likewise presented
their standard bearers Corazon "Cory" Aquino and former Senator Salvador "Doy" Laurel, for
president and vice-president, respectively. President Marcos himself in his letter to the Batasang
Pambansa4 "irrevocably vacat(ing) the position of President effective only when the election is
held and after the winner is proclaimed and qualified as President by taking his oath office ten
(10) days after his proclamation" urgently stresses that "there is no moment to lose", that "I
am, therefore, left no choice but to seek a new mandate in an election that will assess, as
demanded by the opposition, the policies and programs I am undertaking. Such an election
necessarily shortens my tenure. But the necessity arises from no less than the time-honored
principle of public accountability, inherent in a democracy and explicit in our Constitution" and
that the "final settlement of these issues can be achieved only through a presidential election."

The unified opposition has likewise realized the imperative urgency of seeking the mandate and
verdict of the people. Rather than insist on strict compliance with the cited constitutional
provision that the incumbent President actually resign, vacate his office and turn it over to the
Speaker of the Batasang Pambansa as Acting President, their standard bearers as the parties
most prejudiced have not filed any suit or petition in intervention for the purpose nor repudiated
the scheduled election. Instead, the unified opposition, including almost all other political parties
of standing, (with the exception of a few who have lost faith in the electoral process due to past
sorry experiences) have rallied behind the presidential candidacy of Cory Aquino. In short, they
have taken the President at his own terms and conditions and will confront him at the scheduled
February 7, 1986 elections and have not insisted

______________

3 Times Journal issue of August 4, 1985.

4 Idem, Annex "A".

that he vacate the office of president and its vast powers. As Senator Pelaez reported to the
Court: "(T)he Opposition's answer is firm" they are willing to give the President this illegal
handicap, so long as the election is clean, fair and honest."

The real issue at bar has thus veered from the purely justiciable issue of the questioned
constitutionality of the Act due to the lack of an actual vacancy in the office of President and
transformed itself into a political question that can only be truly decided by the people in their
sovereign capacity in a fair, clean and honest election. (Javellana vs. Exec. Secretary, 50 SCRA
30). Stated differently, may this Court at this advanced stage stop the holding of the elections?

Labor Minister Blas Ople, an articulate KBL spokesman, stressed that the people's minds have
been prepared and conditioned to expect the holding of the February 7th, 1986 presidential
elections and that the Court "from its ivory tower" should not stand in the way. (This nation-
wide perception that the great majority of the people want to express their will in the special
election as the best chance for democracy's survival is reflected in all sectors of the press, be
they establishment, neutral or opposition.) As reported by the press: "Ople said the high court,
which did not issue a restraining order to stop preparations for the special elections, "will have to
take judicial notice of a fait accompli—the elections are on. He said the KBL, and the opposition
have formed a consensus by deed by nominating their official tickets, campaigning and
spending, while the people 'from whom all sovereignty emanates' have been conditioned to
expect an election. x x x The people and the world, Ople said, will not believe that the
administration did not help influence a court annulment of the elections, no matter how unfair
this charge of interference in judicial independence might be. Thus, he said, the cancellation of
the elections 'can only aggravate the prevailing crisis and the President may find it difficult to
govern effectively. 'Here and abroad, Ople said, there will be calls for the President to step down
and allow an election under Article 7, Section 9 of the Constitution, to clear the last remaining
obstacle to an election which, both sides now agree, should be held to 'break a dangerous
stalemate in both the political and economic climates' in the face of 'issues threatening national
survival.' Ople said a political system that calls an election and then calls it off after the
momentum has built up will not be received kindly by the people. An election, he said 'should be
treated with respect and the majesty it deserved.' It gives meaning to the central directing
principle of the Constitution that all sovereignty emanates from the people, he said."5

Senator Pelaez formulated the same political question in this wise: "These supervening
events. . . may have converted the snap poll issue into a political one, which would remove from
the Supreme Court the authority to step present snap poll activities on its tracks. x x x From the
standpoint of constitutional government, what has recently happened represents a giant step,
the biggest stride yet made by our people in their struggle for the restoration of freedom and
democracy, which were shattered by the declaration of martial law. Four elections have since
been held—in 1978 for the interim Batasan Pambansa, in 1980 for local officials, in 1981 for
President, and in 1984 for the present Batasan. None of these elections could be said to have
been truly democratic, mainly due to the absence of a strong, united opposition. Today, by some
miracle, the Opposition has become united, so that a truly one-on-one contest for the Presidency
can be held and the two-party system has suddenly become a reality. These are substantial
gains that should not be frittered away by postponing the Presidential and Vice-Presidential
election to mid-1987. With these developments, the issue has been decided by the political will
of the people. This Honorable Court should not put obstacles to their exercise of that will.
Beyond these considerations, national survival depends on the forthcoming snap poll. x x x x x x

"Then the President goes on to state that the mandate he received from the people in 1981 is no
longer valid and that to go on he needs a new mandate. Here is a confession that he has
reached a blank wall, that he can no longer lead the nation, much less achieve his economic and
other programs on the basis of his 1981 election. The Presidency has lost its capacity

______________
5 Bulletin Today issue of December 17, 1985.

either to re-elect the incumbent or choose a new leader.

"I would like to commend the President for his manly response. He seeks the people's judgment
now. And it is a wonderful chance for the people either to renew their mandate to him or elect a
new leader. The Supreme Court should not stand in the way."

A perceptive columnist has expressed the same view thus: "(T)o say that the political situation
of the country is unstable is to belabor the obvious. The nation is struggling out of an
unprecedentedly severe economic crisis while fighting off a growing communist-led insurgency.
Government's credibility has been questioned, as has been President Marcos' ability to lead the
nation to normalcy, hence the coming political exercise. Indeed, the Filipino nation has been
titillated by the prospect of a change." He quotes MP Renato Cayetano's plea that "(I)t is only
fair for the Supreme Court to tell the parties and the people whether the questioned law is only
part of a charade or a serious attempt to seek a new mandate for the incumbent in Malacañang.
Cayetano says 'Any delay will only exacerbate the political situation. The Supreme Court should
not contribute to the possible destabilization of the government. The consequences could be
horrifying.' "6

Retired Chief Justice Enrique M. Fernando and former Senator Ambrosio Padilla as amici curiae
have likewise urged the Court not to prevent the electorate from giving expression to the
people's sovereign will at the scheduled national election. Chief Justice Fernando has submitted
that "such a vacancy arising from a voluntary act of an incumbent of the Presidential office
inspired by the desire to seek a fresh mandate from the sovereign people is a novel situation not
contemplated by the framers of the 1981 amendments to the 1973 Constitution." Senator Padilla
noting that both the President and the Batasang Pambansa having acted in favor of the holding
of the scheduled national election, submitted that the Court should defer to the exercise of the
people's public right to vote and to express their judgment, since there is no issue or

______________
6 Bulletin Today issue of December 16, 1985, Jesus Bigornia.

question more political than the election.

From the realistic standpoint, what should be borne in mind is that President Marcos has,
through his "post-dated resignation" effectively shortened by sixteen (16) months his tenure
(which would have lasted to June 30, 1987) to February 1986, when his successor-elect, be it
himself or his opponent Cory Aquino, takes his/her oath of office after proclamation as the
winner. Similarly, the Act has accelerated the restoration of the stabilizing office of Vice-
President to succeed the President in the event of the latter's permanent disability, death,
removal from office or resignation.

The scheduled election may indeed well be Philippine democracy's last chance. UP President
Edgardo J. Angara expressed it aptly when he wrote that "(T)he threat to a democratic society
comes either from the dictatorship of the right or the totalitarianism of the left. x x x The snap
election will provide an opportunity for bringing these breakaway members back to the center.
In a sense, the election is a process of reunification behind the democratic alternative. When the
center of society which constitutes the majority is given full and unhampered expression in the
polls, the democratic system triumphs and the national consensus that will emerge is a strong
force for future governance. x x x Whichever way the votes go, what really matters is the
majority act of reaffirming the efficacy of the democratic process. For the center to emerge
unified behind the democratic system is the historic lesson which the snap elections may
provide. x x x Prescinding from the legal issues involved, the holding of the snap elections seems
to have gained popular support not only from the various political camps but also from other
sectors as well. The prevailing sentiment seems to be this—waiting for the 1987 Presidential
race may be too late for reasons already properly articulated in other forums."

I wish to express my appreciation f or the valuable insights and perceptions that the three
distinguished amici curiae have furnished the Court at the hearings. The events that have
transpired since December 3rd, as the Court did not issue any restraining order, have turned the
issue into a political question which can be truly decided only by the people in their sovereign
capacity at the scheduled election, which hopefully will be clean, fair and honest. (Let there be a
fervent prayer that the Comelec with its past flip-flopping decisions and orders as recorded in
our jurisprudence, will this time realize that any further desecration of a free and fair election
process will spell disaster for the cause of the peaceful democratic process.) The Court cannot
stand in the way of letting the people decide through their ballot, either to give the incumbent
president a new mandate or to elect a new president.

SEPARATE OPINION

PLANA, J.:
The narrow legal issue involved in these petitions is whether Batas Pambansa Blg. 883 which
provides for a "snap" election on February 7, 1986 violates the Constitution.

An examination of the Constitution, particularly Article VII, Section 9, does not yield the
conclusion that B.P. Blg. 883 is offensive to its provisions. What is clear is that the Constitution
does not prohibit the President from tendering a resignation that is not immediately effective.
Indeed, there is no provision whatsoever regarding such kind of resignation.

Not being prohibited, a Presidential resignation in futuro is allowed. And in such a case, the
Batasang Pambansa is not obliged to sit and wait for the actual vacancy to arise before enacting
necessary legislation. That would be an unreasonable and absurd interpretation of the
Constitution, which is to be eschewed.

Quite apart from the foregoing, there is a strong presumption that a law is constitutional, which
is fortified by the rule that all reasonable doubt should be resolved in favor of its
constitutionality. Hence, in assessing the constitutionality of a law, "to doubt is to sustain." This
approach is dictated by a healthy respect of the courts for a co-equal department, the
Legislature, and the latter's assumed wisdom within the area of its competence. This principle is
doubly applicable as regards B.P. Blg. 883 which is the product of the joint action of the
executive and legislative departments. Long ago, U.S. Chief Justice Marshall laid down an
epochal standard in evaluating the constitutional validity of a law: "Let the end be legitimate, let
it be within the scope of the constitution, and all means which are appropriate, which are plainly
adapted to that end, which are not prohibited, but consist with the letter and spirit of the
constitution, are constitutional." (M'Culloch v. Maryland, et al., 4 Wheat. 316.) That standard
remains valid till now.

Accordingly, I vote to dismiss the petitions.

SEPARATION OPINION

ESCOLIN, J., separate opinion:

In my view, petitioners failed to demonstrate that BP 883 clearly contravenes any applicable
constitutional provision. Besides, the issue posed by these petitions is essentially political in
character. And "when the issue is a political one which comes within the exclusive sphere of the
Legislative or Executive Department of the government to decide, the Judicial Department or the
Supreme Court has no authority to determine whether or not the act of the Legislature or Chief
Executive is against the Constitution. What determines the jurisdiction of the courts in such case
is the issue involved, and not the law or constitutional provision which may be applied."
[Mabanag, et al vs. Lopez Vito, et al., L-1123, March 5, 1948, 78 Phil. 1, See concurring opinion
of Justice Feria].

It appears that the President himself sought the passage of the challenged legislation, in his
quest for a "new mandate" in an election that will constitute "public judgment now on policies
and programs of a fundamental nature" The Batasan Pambansa, in the exercise of its plenary
power of legislation, has authorized the holding of the election. The positive response of the
people to the call for such an election has been overwhelming; and the body politic itself has
decided that only an election in this crucial time could deliver the country from the clutches of
subversive forces as well as the grave economic problems plaguing the country,clearly proven to
be violative of the letter and the spirit of the constitution, this Court attuned to the realities of
the situation, should not prevent the electorate from giving expression to their sovereign will.

SEPARATE OPINION

RELOVA, J.:

Article VII of the Constitution, Section 9 thereof, as amended, provides:

"SECTION 9. In case of permanent disability, death, removal from office or resignation of the
President, the VicePresident shall become the President to serve the unexpired term. The
Batasang Pambansa shall by law provide for the case of permanent disability, death, removal
from office or resignation of both the President and Vice-President, declaring what officer shall
then become President or the manner in which one shall be selected. In case a vacancy in the
Office of President occurs before the presidential election in 1987, the Speaker of the Batasang
Pambansa shall act as President until a President and a Vice-President or either of them shall
have been elected and shall have qualified. Their term of office shall commence at noon of the
tenth day following proclamation, and shall end at noon on the thirtieth day of June of the sixth
year thereafter."

As held in Gamboa, et al. vs. CA, 108 SCRA 1, [o]ne of the ways of terminating official relations
is by resignation. To constitute a complete and operative resignation of public office, there must
be an intention to relinquish a part of the term, accompanied by the act of relinquishment and a
resignation implies an expression of the incumbent in some form, express or implied, of the
intention to surrender, renounce, and relinquish the office and the acceptance by competence
and lawful authority. In Our jurisprudence, acceptance is necessary for resignation of a public
officer to be operative and effective, otherwise the officer is subject to the penal provisions of
Article 238 of the Revised Penal Code. x x x." (Italics supplied) In the light of the abovecited
case, actual vacancy need not exist on the day of the election. When, therefore, the Batasang
Pambansa, representing the people, enacted Batas Pambansa Blg. 883 on December 2, 1985
and the President approved it the following day calling for the elections on February 7, 1986, it,
in effect, accepted the resignation tendered by the incumbent on November 11, 1985 seeking a
new mandate from the people "in an election that will assess, as demanded by the opposition,
the policies and program I am undertaking. Such an election necessarily shortens my tenure x x
x" (Annex B, G.R. No. 72923). Thus, his term of office was cut short by sixteen (16) months. As
a consequence, there is justification for the holding of an election before May 1987. Stated
differently, had the President not issued the letter-resignation, dated November 11, 1985, the
Batasang Pambansa was without authority to enact Batas Pambansa Blg. 883, otherwise known
as Cabinet Bill No. 7. But, with the issuance of said letterresignation, the Batasan and the
President were well within their constitutional powers to enact said law which would give the
people the chance to exercise its will through the electoral process—an attribute of sovereignty.

Further, there is merit in the contention of former Chief Justice Enrique M. Fernando, who
appeared as amicus curiae, that "if a resignation is prompted by a President seeking 'a new
mandate' in an election that will constitute 'public judgment now on policies and programs of
fundamental nature,' by its own admission, the above constitutional provision does not
necessarily apply. What appears indubitable is that such a vacancy arising from a voluntary act
of an incumbent of the Presidential office inspired by the desire to seek a fresh mandate from
the sovereign people is a novel situation not contemplated by the framers of the 1981
amendments to the 1973 Constitution. x x x" (Summary of Points Submitted for the
consideration of the Court) He submits that a legislative act suffices because of the plenary
legislative power vested in the Batasang Pambansa.

Likewise, there is merit in the submission of the Solicitor General that—

"2.The legislative power vested in the Batasang Pambansa is

stitution (see Article VII, Section 1 of the Constitution; Vera vs. Avelino, 77 Phil. 192 [1946];
Arnault vs. Nazareno, 87 Phil 29 [1950];Occena vs. Commission on Elections, 95 SCRA 755
[1980].

The interstices of the Constitution are within the power of the legislature to fill up. What is not
prohibited by the Constitution can be provided for by the Batasang Pambansa. Indeed, it is
conceded 'that the Congress of the Philippines has a wider range of legislative field than either
the Congress of the United States or a State Legislature' (Amault vs. Nazareno, 87 Phil. 29; 44-
45 [1950].

"3.The calling of an election is essentially legislative in nature (Ututalum vs. Commission on

Elections, 15 SCRA 465 [1965]. All elections for President, Vice President, members of the
legislature and local officials in our country have been called through legislative enactments.

It cannot be doubted that enactment of Batas Pambansa Blg. 883 falls well within the legislative
authority of the Batasang Pambansa. The narrow issue is whether the law violates the
Constitution, particularly Section 9, Article VII." (pp. 6-8, Consolidated Comment of the Solicitor
General.)

Besides, supervening events have occurred since the passage of the law on December 3, 1985
and there would be no turning back now. The Batasang Pambansa passed the law and the
President has approved it; but the Court failed to issue a restraining order when the petitions
were filed on December 3, 1985 so as to maintain the status quo. Thereafter, the ruling political
parties (KBL and UNIDO) have fielded their respective presidential and vice presidential
candidates in conventions and proclamations attended by thousands of people. So much time,
effort and money have already been spent. We can take judicial notice of the fact that the
overwhelming sentiment and desire of our people is for the holding of the coming snap elections
and that they have tacitly consented and approved the law in question. At this juncture, We
cannot now deprive them of this right of suffrage. The two coordinate branches of the
government (legislative and executive) have spoken. The judiciary should not be an obstacle to
the people's desire to select their Chief Executive in the forthcoming snap polls.

ACCORDINGLY, I vote to dismiss the petitions.

SEPARATE OPINION

GUTIERREZ, JR., J.:

Implicit in the republican nature of our State is adherence to the rule of law. All acts of
government must conform to the Constitution. Otherwise, they have to be declared void.

As early as 1919, in the leading case of Villavicencio v. Lukban (39 Phil. 778, 787), this Court
declared emphatically that "no official, no matter how high, is above the law" and that "the law x
x x is the only supreme power in our system of government and every man who by accepting
office participates in its functions is only the more strongly bound to submit to that supremacy
and to observe the limitations which it imposes upon the exercise of the authority which it
gives.''

Today, the above declaration warrants repeating. The law involved in these petitions is no less
than the Constitution, the supreme law of the land enacted by the people in their exercise, in its
highest sense, of sovereign power. The legislative power vested in the Batasang Pambansa may
be employed only within the confines of constitutional boundaries. The President is similarly
subject to constitutional limitations and considering his solemn oath, invoking the help of God, to
"preserve and defend the Constitution," he can execute only such statutes as do not conflict with
the supreme law of the land.

In Mutuc v. Commission on Elections (36 SCRA 228, 234) this Court declared:

"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 execu-

tion 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. Even its power of judicial review to pass upon the validity of
the acts of the coordinate branches in the course of adjudication is a logical corollary of this
basic principle that the Constitution is paramount. It overrides any governmental measure that
fails to live up to its mandates. Thereby there is a recognition of its being the supreme law.''

I am constrained to reiterate the above basic principles because some distinguished counsel
have come forward with the strange proposition that inspite of the clear circumvention by both
the Legislature and the Executive of express procedures mandates by the Constitution, "national
interest" requires that we should overlook the violations and dismiss the present petitions.

All members of this Court have taken an oath "na aking itataguyod at ipagtatanggol ang
Saligang Batas ng Pilipinas." We do not preserve and defend the Constitution through a
circumvention of its requirements and an ignoring of its mandates.

The policy nature of their concerns and the passion of politics now animating them may mitigate
the inattention of the Batasan and the Executive to scrupulous compliance with Section 9, Article
VII of the Constitution. We cannot enjoy the same luxury. I personally feel that during these
critical times, more than in happier days, we should insist on compliance with the rule of law in
its punctiliously authentic form. National interest and political stability cannot be premised upon
violations of our fundamental law. Political expediency and the momentary, easily forgotten cry
of the public are too precarious and shifting to become legal foundations of a free and hopefully
prosperous society. Indeed, much depends on the forthcoming elections but even more is at
stake in the maintenance of constitutionalism upon which our democratic government is founded
and because of which popular and free elections are held.

I find no difficulty in concluding that Batas Pambansa Blg. 883 is unconstitutional.

BP 883 calls a special election for president and vicepresident. It is elementary in the law of
public officers that no valid appointment or election to any public office may be effected if the
office is not vacant. In the normal course of events, the Office of the President becomes vacant
upon the expiration of the term of an incumbent. A regular election fills the vacancy. But we are
not concerned with a regular election. There is a call for a special or an emergency election.

A special election may not be called for just any purpose or on any occasion. A special election
becomes necessary only when a vacancy is created by death, permanent disability, removal
from office, or resignation. I cannot accept the proposition that a simulated or fictitious vacancy
is a "vacancy" as understood in the law of public officers. The vacancy must be real and in esse,
not a parody or shadow of the real thing. In the same way that death, disability, or removal
from office must be actual and permanent before the pertinent provisions of Section 9, Article
VII of the Constitution may come into play, so must a resignation be real and irrevocably
permanent. Inspite of all the learned arguments of distinguished counsel, I still fail to see how
special or emergency elections may be held for a position which is not vacant. Or how the call
for special elections can become the means of creating in the future the now nonexistent
vacancy. Or how a vacancy can come about only after special and emergency elections to fill
that very same vacancy have already been held. Credulity can be stretched only too far.

If the exigencies of national interest are pressing, now or in the near future, and if the need for
establishing political and economic stability is imperative, that elections for a President and a
Vice-President can no longer wait for 1987, the Constitution provides the remedy. The President
can resign and pursuant to Section 9 Article VII of the Constitution, the Speaker of the Batasan
shall act as President until the President and the Vice-President or either of them shall have been
elected in the special elections called to fill the vacancy thus created and shall have qualified.
The muddling of the President's term of office shall also be obviated. By the same provision of
the Constitution, a new term of office, which ignores the present fixed term of the incumbent,
shall commence at noon of the tenth day following the proclamation and shall end at noon on
the thirtieth day of the sixth year thereafter.

I find Section 9 of Article VII clear and intelligibly simple. Any layman reading it can easily grasp
its meaning and understand the contingencies for which it was intended. The words of Chief
Justice Enrique M. Fernando speaking for the Court in J.M. Tuason & Co. v. Land Tenure
Administration (31 SCRA 413, 422) are appropriate:
"We look to the language of the document itself in our search for its meaning. We do not of
course stop there, but that is where we begin. It is to be assumed that the words in which
constitutional provisions are couched express the objective sought to be attained. They are to be
given their ordinary meaning except where technical terms are employed in which case the
significance thus attached to them prevails. As the Constitution is not primarily a lawyer's
document, it being essential for the rule of law to obtain that it should ever be present in the
people's consciousness, its language as much as possible should be understood in the sense they
have in common use. What it says according to the text of the provision to be construed
compels acceptance and negates the power of the courts to alter it, based on the postulate that
the framers and the people mean what they say. Thus there are cases where the need for
construction is reduced to a minimum."

Since the Constitution itself provides an easily followed remedy, one which any fairly literate
citizen can readily comprehend, I do not see why the Legislature and the Executive should adopt
a new fangled, perplexing, and constitutionally infirm method of achieving a most desirable end.
I believe that all of us in Government must sincerely demonstrate our readiness to abide by the
terms and procedures of the Constitution even as we try to solve serious national problems.

Neither can the special elections be premised on the accountability provisions in Article XIII of
the Constitution. Snap elections to make the executive accountable to the people are for
parliamentary systems. We have a presidential form of government. When the 1973 Constitution
came into force and effect on January 17, 1973, it provided for a parliamentary system. Section
13 of Article VIII provided that "the National Assembly may withdraw its confidence from the
Prime Minister only by electing a successor by a majority vote of all its members." Executive
power was then exercised by the Prime Minister assisted by his cabinet. The President was only
a symbolic head of state. The National Assembly could remove the Executive by majority vote
but the Executive could also have the Assembly dissolved and have the questions on
fundamental issues resolved by the people in so-called snap elections.

Before this parliamentary government could be installed, we amended the Constitution and
returned to the presidential form. Any lingering traces of parliamentarism carried over from the
original 1973 provisions only serve to make our government even more presidential. The
dominance of the Executive over the Legislature is much more marked now than in the 1935
presidential system. This being so, the accountability aspects of parliamentary systems cannot
be used to justify our legitimating BP 883.

I share the sentiments of the respondents and some of the petitioners in their desire for
ascertaining the people's will. But I submit that our basic law, the act of the people which
regulates the entire fabric of our government, must be followed.

I am, therefore, constrained to dissent and to maintain my original vote to enjoin the holding of
elections under a statute I find null and void.

SEPARATE OPINION

DELA FUENTE, J.:

For the reasons well stated by my distinguished colleague, Hon. Lino Patajo, I am inclined to
share the view expressed in his dissent that B.P. Blg. 883 is unconstitutional. For it contravenes
the intent, letter and spirit of the succession provision—section 9, Article VII—of the
Constitution. To my mind the said statute would, if implemented, sidetrack or bypass the cited
constitutional provision designed to govern the selection of a successor in case of vacancy in the
office of the President before the next regular election in 1987. A conditional or qualified
"resignation" of the President which shall take effect after the February 7, 1986 "special
presidential election", and only upon the proclamation and qualification of the candidate chosen
by the electorate, is not sufficient ground or justification for a so-called "snap" election. In
explicit language, section 9, Article VII, provides for the constitutional formula or device in filling
the Office of the President the moment it becomes vacant by reason of the incumbent's
"permanent disability, death, removal from office or resignation" at anytime prior to the end of
his term in June 1987. Such "resignation," as I see it, must be one resulting in a permanent
vacancy—actual or in esse, not merely prospective or inchoate or contingent—as of the time of
the special presidential election, whereupon the Batasan Speaker shall take over the vacated
office as caretaker President until a new President shall have been duly elected, proclaimed and
qualified by taking his oath of office.

I have reached this conclusion after the hearings and upon due consideration of the arguments
and submissions for the petitioners and the respondents, the former Chief Justice E.M. Fernando,
and other legal luminaries, especially those of former Vice-President Emmanuel Pelaez in an
article entitled "UNCONSTITUTIONALITY OF THE 'SNAP' POLL,"1 which he mentioned at the
hearing as he gave his comments on the constitutional issue before this Court. I reproduce
hereinbelow the most pertinent portions of his dissertation.2 I

________________
1 published in the November 23, 24 and 26, 1985—issues of Bulletin Today.

2 "The question of the constitutionality of the 'snap election for President—and maybe Vice-President?—on Jan. 17, 1986 proposed
in Cabinet Bill No. 7 is a very serious one. Grave doubts raised on its constitutional validity must be resolved before any favorable
action is taken on the proposal. Otherwise, the political controversy now rocking the country could degenerate into irreversible
national disunity. Worse still, the rule of law in our country, the very foundation of a free and democratic society, would be
irreparably compromised.

x x x      x x x      x x x

also find the observations of Atty. Sedfrey Ordoñez in the petition and the reply filed for the
Liberal Party and former Senator Jovito Salonga as well as those of Atty. Raul Gonzales, National
Bar Association President, who appeared and argued at the hearing, very persuasive enough to
overcome the doubts I had entertained earlier as to the alleged facial un-

______________
". . . a severe blow on it at this time, like holding an unconstitutional presidential election, could irreparably destroy it.

x x x      x x x      x x x

"The consequence of all this was: as ratified by the people, the present presidential succession
procedure, which was adopted together with other constitutional amendments on Jan. 17, 1984,
is definite, precise, and clear, leaving no room for the Batasan to change or add to it one whit.
No discretion whatsoever is given to the Batasan to exercise its legislative power either to
amend or to ignore any portion thereof.
"The Batasan's clear duty is circumscribed solely to implement the presidential succession
formula now embodied in the Constitution and nothing more. Its role in putting it into effect is
purely ministerial, which in layman's language means automatic, mechanical, not requiring the
exercise of judgment. To test the validity of the foregoing assertions, let us analyze Section 9,
Article VII—the only section of the Constitution that deals with presidential succession—sentence
by sentence.

'Section 9. In case of permanent disability. . . .

x x x      x x x      x x x

"The first sentence presupposes that a Vice-President shall have been elected and shall have
qualified. It provides that in case the Presidency becomes vacant by reason of permanent
disability, death, removal from office or resignation, the Vice-President shall automatically
become President. This is the 'spare tire' concept of the Vice-Presidency which our people are
familiar with and easily understand from experience. . . The provision does not apply to the
present where we have no Vice-President.

"The next sentence provides that in the absence of a President and Vice-President, the Batasan
shall by law provided for a further line of succession. This is one of only two instances where the
Constitution authorizes the Batasan to take a hand in the presidential succession procedure. The
other one is found in the fifth and last constitutionality of B.P. Blg. 883. I am, however, unable
to agree with former Vice-President Pelaez and others who have stressed the unconstitutionality
of the law in question but urged, nonetheless, this Tribunal to allow its implementation
paragraph of Section 9 above-cited, in case of death, permanent disability or resignation of the
Speaker.

"In other words, where the Constitution wants the Batasan to legislate on presidential
succession, it expressly says so. The clear implication is that, where the Constitution itself
mandates the precise procedure to the last detail, as we shall presently see, the Batasan must
keep out.

"The logic of this position is unassailable. If the Constitution were to permit the Batasan the
discretion to revise the presidential succession formula laid down by it with meticulous
exactitude or, as proposed in Cabinet Bill No. 7 [now, B.P. Blg. 883], adopt an entirely new
succession procedure, we would have a situation where every Batasan could be tinkering with
the matter. The inevitable consequence would be the nullification of the procedure laid down by
the Constitution. The plain language of the Constitution's directive to the Batasan is: you may
supplement the line of succession, as in the two instances above-cited where you are expressly
authorized to do so, but you may not touch what is already prescribed by the Constitution or,
much less, replace it with another.

"The third and following sentences prescribe the succession procedure if a permanent vacancy
occurs during the term of President Marcos, that is, until its expiration in June, 1987. The trigger
mechanism which would set off the events enumerated in these provisions is the occurrence of a
permanent vacancy—a real, not a "paper" vacancy. This is sine qua non. Without the occurrence
of an actual and permanent vacancy, the presidential succession procedure cannot come to life.
With is occurrence, the events take place, dominolike, automatically. The Batasan has no
authority whatsoever to contrive another cause, like a post-dated resignation to take place only
if the President loses in the (snap) election proposed in Cabinet Bill No. 7, to justify such an
election. This would nullify the succession procedure of the Constitution and would be grossly
unconstitutional.

"Let us, by re-reading the third and succeeding sentences, pinpoint the specifics of the
succession procedure mandated by the Constitution.

"Upon the occurrence of a permanent vacancy in the Presidency

by taking into account "supervening events" transpiring since the filing of the petitions and the
"people's overwhelming desire to hold" the "snap" election, the constitutional issue having
"become a political one, beyond its [this Court's] authority to enjoin."

_______________

during the present term of President Marcos, the following events would take place:

1.The Speaker of the Batasan automatically becomes the Acting President. He shall serve as
such until President and Vice-President, or either of them shall have been elected and shall have
qualified. The language of the Constitution is clear enough, requiring no explanation or
elaboration.

2.On the third day after the occurrence of the vacancy, (a) at ten o'clock in the morning, (b) the
Batasan shall convene in accordance with its rules without need of a call—the constitutional
provision itself makes the call in advance; and (c) within seven (7) days enact a law, (d) calling
a special election to elect a President and Vice-President; (c) not earlier than fortyfive (45) nor
later than sixty (60) days from the time of such call.

"Please note how the Constitution goes into painstaking details. The convening of the Batasan
must be on the third day from the occurrence of the vacancy—not on the first or second or
fourth and so forth but on the third. Even the hour of convening is set at ten (10) o'clock. The
Batasan is given a deadline of seven (7) days within which to enact a law calling for a specified
election. The candidates to be selected are specified—the President and the Vice-President. The
Batasan is given very little leeway in fixing the date of the election: it must not be earlier than
forty-five (45) nor later than sixty (60) days after the call. This minuteness of detail had a
definite purpose, as we shall presently see.

"The provisions of the above-mentioned Section 9, Article VII, are contrary to all traditional
notions of constitution-making. The standard knowledge is that a constitution must be couched
in general terms, allowing the legislature to flesh out the constitution's broad outlines with
details. As above-shown, however, the abovecited Section 9 does not follow the traditions. The
Constitution itself supplies the details. It allows the legislature no leeway to do so.

x x x      x x x      x x x
"

While the practice followed under the Constitution and our election laws has been to allow the
President or an elective public official to submit himself for re-election to the same office without
vacating it (remaining in office until the end of his term and during the election period), this
generally refers to a "regular" election, not to a special election called precisely to fill up an
existing permanent vacancy in the elective office. The device or formula found in Section 9,
Article VII, having been

______________

The foregoing circumstances reveal the clear intent of the Constitution: to prohibit the Batasan
from legislating at all on succession, except in the two instances above-cited where the
Constitution expressly authorizes it to do so.

x x x      x x x      x x x

'The 'law' calling a special election under the presidential succession provision, Section 9 of
Article 7, is in effect, a measure sui generis wherein the Constitution has acted both as the
fundamental law of the land and as the legislature pre-empting any claim of the Batasang
Pambansa to any legislative authority to change or replace the constitutionally prescribed
procedure of presidential succession.

"The claim that the Batasang Pambansa may now, in the exercise of its power of general
legislation, enact a law on presidential succession to call a special election, under circumstances
other than those enumerated in the Constitution, thereby amending and shortcircuiting the very
precisely laid down procedure in Section 9, Article VII on the subject, is utterly baseless. Neither
Article VII (on powers of the President and Vice-President) no Article VIII (on the powers of the
Batasan) of the Constitution grants it the authority claimed.

x x x      x x x      x x x

"On the basis of the foregoing detained scrutiny of the pertinent constitutional provisions, there
can be no doubt on the Constitution's meaning the intent: such a special presidential election
during President Marcos' term must take place and must be carried out strictly in accordance
with the circumstances and procedures specifically laid out by the Constitution.

"Cabinet Bill No. 7, however, would openly defy the Constitution. Consider the following:
(a)While Section 9, Article VII of the Constitution would authorize a special election during the
term of President Marcos only in case his office is permanently and actually vacant, the cabinet
bill would authorize a "snap" election without the occurrence of such a vacancy. (President
Marcos' letter of

so conceived and designed in detail to meet a possible sudden vacancy occurring during a short
period before the regular presidential election in 1987, respect for the will of the Filipino people
who ratified the constitutional amendment in 1984 demands, I think, no less than strict
adherence to the aforementioned succession provision. B.P. Blg. 883 constitutes, plainly, a
deviation from and evasion of that provision.

_______________

"resignation" categorically states that he will relinquish the Presidency only if some one else is
elected to and qualifies for the position. Since the "resignation" would be simultaneous with the
assumption of office or any person elected other than President Marcos, there would actually be
no vacancy.)

(b)While the Constitution would install the Speaker as Acting president from the moment the
vacancy occurs until a President or, in his absence, a Vice-President, shall have qualified, so
that, in effect, it is the Speaker, as Acting President, who would oversee the election, the cabinet
bill would brush the Speaker aside, (and with him the Constitution), and allow President Marcos
to usurp the Speaker's role and oversee the election in which his own fitness to continue as
President would be the crucial issue.

(c)While the Constitution specifically directs the Batasan to meet on the third day after the
vacancy occurs to enact a law calling for the special election, within seven (7) days, the cabinet
bill would blithely ignore these specifics.

"If the proposal becomes a law and is upheld, then the constitutional provisions on the same
subject would be set aside. It would be a dangerous precedent. . .

x x x      x x x      x x x

"If we would but. . . hold uppermost in our minds the future of constitutional government in our
country, I believe there can be an accommodation which would bolster rather than subvert the
rule of law. ln this connection, may l offer the following suggestion; . . .

"1 In his speech in Cebu on Nov. 15, 1985, the President stated 'more or less, that a 'snap'
election was crucial because his leadership had been assailed abroad and it was necessary to
show the world that the people were still with him. . .
"If this is the objective, rather than holding a 'snap' election in violation of the Constitution, I
would endorse the recommendation of

Finally, if the objective of the so-called "snap" election la was to enable the President to ask the
Filipino people for vote of confidence, the most appropriate and adequate vehicl for that is a
referendum as suggested by MP Arturo Tolentin and former Vice-President Pelaez. A negative
vote would sure ly bring about a vacancy in the office of the President, which can then be filled
up in accordance with the succession pro cedure provided by section 9, Article VII. The other
option also suggested by both, is a constitutional amendment incor porating the features of B.P.
Blg. 883, to be submitted to the people for ratification.

_______________

Senator Arturo M. Tolentino that the exercise appropriate for the purpose should be a
referendum on whether or not the President should continue in office.

"If the vote is in the affirmative, the President would then have the necessary weapon to
counteract what he believes to be a campaign of destabilization against him. . .

"If the vote is in the negative, then the President should resign without delay. A vacancy in the
Presidency would then occur, in which case the constitutional succession procedure would be
operative. . .

"2.Another alternative would be to amend the Constitution. The Batasan should meet as a
constituent assembly and approve a resolution proposing an amendment to the Constitution
authorizing the calling of a special presidential election more or less in the manner proposed in
Cabinet Bill No. 7 or as may be agreed between the majority, and the minority in the Batasan.
The resolution should then be submitted to the people in a plebiscite. . .

"In either case, the Constitution shall have been shielded from further assaults on its
supremecy. . ."

SEPARATE OPINION

ALAMPAY, J.:

The basic duty of this Court is restricted to the determination of whether B.P. 883 calling for a
special election is in accord with or in violation of our Constitution. Difficulty has been added to
this task which the Court has to accomplish because of the inconsistent and to an extent
bewildering positions taken and manifested by some of the petitioners during the hearing of
these cases. Members of the Court are puzzled as to what petitioners really profess this Court
should rightfully decree. Indeed, it would seem that what was initially asked by certain
petitioners in these consolidated petitions to be done by this Court based on the grounds and
reasons stated in their respective petitions, such as to prohibit the respondent Commission from
implementing B.P. 883, on account of this statute's constitutional infirmity, have been now
abandoned by the same petitioners who but recently assailed the legality of B.P. 883. The
unconstitutionality of said statute is still being insisted upon but, nevertheless, it is prayed that
such governing and decisive factor be disregarded, ignored or even circumvented and that this
Court should cooperate in the alleged unanimous will of the Executive and Legislative
departments of our country that there be an election for the Presidency and Vice-Presidency of
the nation next February, 1986, rather than in 1987.

It is my submission that the Court should detach itself from these swirling and fickle attitudes
that it has perceived and it should not be moved by the rhetorical allusions to the alleged but
unquantified desire of our people to participate in an election which is at the same time
contended to be not sanctioned by and in conflict with what is clearly provided for in our
Constitution. The rash and reckless suggestions suggested to the Court by petitioners will only
create and give rise to a dangerous precedent that could erode the stability that inherently
should attach and be reposed in the Constitution. Appeals to what is claimed to be the present
popular wish should assume no significance in the resolution of the primary issue.

What our constitution decrees should be respected and followed.

It is my considered view that the special election on February 7, 1987, called for pursuant to
Batas Pambansa Blg. 883, does not meet at all the specific condition that there should first be an
actual and existing vacancy before a special election can be held to elect a new President bef ore
the present term of the incumbent expires on May 30, 1987. Logic and simple reasoning alone
even without need of legal citations, will be sufficiently persuasive to form a conclusion that no
special election is necessary to fill up a position which is not attended by a vacancy. The absence
of an actual vacancy negates and precludes acceptance of any unwarranted and expensive
special election. The searching analysis made by other Colleagues in the Court who share with
me in the above stated views make needless a repetitious and extended dissertation on this
matter. Absent an actual and real vacancy, the holding of a special election cannot be given
color of legality by the reference to certain conditions attaching to the imputed vacancy but
which conditions most plainly would happen only after the election had already taken place and
with the position to be filled up by the election uninterruptedly occupied by a legal occupant.

On this simple view, I readily conclude that Batas Pambansa Blg. 883 should be declared
unconstitutional for being violative of the spirit and letter of our Constitution. I vote, therefore,
to declare Batas Pambansa Blg. 883 unconstitutional and consequently, to enjoin the respondent
Commission on Elections from conducting the unwarranted special election for President and
Vice-President on February 7, 1986.

DISSENTING OPINION

PATAJO, J., dissenting:

Fully aware as I am that all laws are presumed constitutional and that all reasonable doubt
should be resolved in favor of their constitutionality and only when the conflict

between any law and the Constitution is clearly beyond reasonable doubt, should said law be
declared unconstitutional, I approach the issue of the constitutionality of Batas Pambansa Blg.
883 in the context of what appears to be a popular clamor for the holding of a special
presidential and vice-presidential election on February 7, 1986.

The common grounds alleged in the petitions assailing the constitutionality of said law are that
the only instance that the Batasan can call for the holding of an election before the expiration of
the term of the President in 1987 is upon the occurrence of the contingencies provided for in
Section 9 of Article VII of the Constitution, namely the permanent disability, death, removal
from office or resignation of the President before the presidential election of 1987 for in that
case a vacancy in the Office of the President has been created triggering the mechanism f or the
calling of a special election to fill up said vacancy together with the election of the vice-president
in accordance with the provisions set forth in Section 9, Article VII of the Constitution and that
Batas Pambansa Blg. 883 has in effect shortened the term of the President elected in 1981
without going through the process of amending the Constitution as the Batasan in enacting said
law acted in the exercise of its legislative powers and not as a constituent body. Petitioners
contend that the letter of the President recommending to the Batasan the calling of a special
election because of the need for the President to seek a new mandate in an election that will
assess, as demanded by the opposition, the policies and programs being undertaken by him
upon his undertaking that he will irrevocably vacate the position of the President effective when
such election is held and the winner is proclaimed and qualified as president by taking his oath
of office ten days after his proclamation is not a resignation which would create a vacancy within
the meaning of Section 9 of Article VII. That there is no vacancy is evident from the fact that the
President still continues in office until the assumption in office by the winning candidate in the
special election instead of the Speaker who, under the provision of the Constitution, becomes
acting president in case of a permanent disability, death, removal from office or resignation of
the President before the presidential election of 1987. What Section 9, Article VII on templates is
an actual vacancy and not a vacancy in futuro.

The Solicitor General defending the constitutionality of said law contends that there is nothing in
the Constitution which prohibits the Batasan Pambansa in the exercise of its legislative plenary
powers to call for the holding of the special election for the Office of the President on February 7,
1986 upon the undertaking of the incumbent President that he will irrevocably vacate the
position of president if an election is held for said office and the winner proclaimed and qualified
by taking his oath of office ten days after his proclamation. The occasion for the holding of said
special election is the need of the incumbent President to seek a new mandate in an election
that will assess, as demanded by the opposition, the policies and programs being undertaken by
him.

It is my considered view that Batas Pambansa Blg. 883 is unconstitutional.

While the 1973 Constitution, as amended, has adopted several features of the parliamentary
system, our government is still essentially a presidential form of government and the term of
office of the President is for a fixed term of six years. Since the incumbent President was elected
in 1981 for a term of six years beginning at noon on the 30th day of June of 1981 and ending
noon of the same date six years thereafter when the term of his successor shall begin, Batas
Pambansa Blg. 883 had shortened the term of the President without going into the process of
amending the Constitution. The shortening of the term of the office of the incumbent President
cannot be justified by the action of the President agreeing to vacate his office on condition that a
special election be held and the winning candidate for said office is proclaimed and qualified as
president by taking his oath of office ten days after the proclamation. The President can only
shorten his term of office by unconditionally resigning therefrom before its expiration in order
that a vacancy is created and the Speaker of the Batasan shall act as President and the Batas
Pambansa shall call for the holding of a special election to elect a president and a vicepresident
in accordance with the provisions of Section 9 of Article VII of the Constitution.

The letter of the President of November 11, 1985 recommending to the Batasan the enactment
of law calling for special election as there will be a definite and inevitable vacancy in the Office of
the President which will pave the way for the holding of said special election because of his
undertaking to irrevocably vacate the position of President effective only when the election is
held and the winner is proclaimed and qualified as president by taking his oath of office ten days
after his proclamation does not create a vacancy that will trigger the mechanism for the calling
of a special election to fill up said vacancy in accordance with the procedure set forth in Section
9 of Article VII. Actually, the conditions mentioned by the President for calling of a special
election have not at all created a vacancy because he continues in office as president up to the
assumption of office of the president-elect. As petitioners correctly contended, proof that there is
no vacancy in the Office of the President as contemplated in Section 9 of Article VII is that he
continues to exercise the functions of the president instead of the Speaker who, under the
provisions of said Section 9, becomes acting president in case of a permanent disability, death,
removal from office or resignation of the President before the presidential election of 1987.

The contention of the Solicitor General that the provisions of Section 9, Article VII do not
preclude the Batasan Pambansa in the exercise of its plenary legislative powers to call for the
holding of a special election for the position of president in a situation other than that
contemplated in Section 9 such as the need of the incumbent President f or a new mandate is
without merit. While it is true that the power to call an election is exclusively a legislative
prerogative, such power cannot be exercised where its effect would be to amend an express
provision of the Constitution, more specifically Section 5, Article VII fixing the term of the office
of the president and the vicepresident to six years. The power to define the term of the
president and vice-president is not legislative but constituent and can only be exercised thru an
amendment to the Constitution in the manner provided for in the Constitution. In effect, Batas
Pambansa Blg. 883 has amended the Constitution by an act of the Batasan as a legislative body,
not a constituent assembly and without the ratification of majority of votes cast in a plebiscite.

"x x x And we are asked to raise the power from the general legislative authority by implication,
to serve convenience and expedition in making organic change. If it were conceded that an
easier and quicker mode of change is desirable, a concession not permissible, if the views of the
greatest writers on questions touching government under written Constitutions are of force, a
cannon of constitutional construction forbids the implication of the authority, for it is the rule
that where the means by which the power granted shall be exercised are specified, no other or
different means for the exercise of such power can be implied even though considered more
convenient or effective than the means given in the Constitution; and the Constitution gives
special power to the Legislature, and provides the means of exercising it, to effect needed
changes in the organic law. x x x." (Ellingham v. Dye, 178 Ind. 336; 99 NE 1, 15). (italics ours.)
Neither can the provision of the Constitution providing for accountability of public officers be
invoked to justify the holding of a special election contemplated by Batas Pambansa Blg. 883.
Impeachment of the President and the other constitutional officers is the recourse for holding
them accountable.

In short, a special election for the Office of the President before the expiration of his term in
June of 1987 is authorized only on the occurrences of the contingencies enumerated in Section 9
of Article VII, namely permanent disability, death, removal from office or resignation of the
President. The undertaking of the President to vacate his office upon the qualification of the
president-elect in the presidential election of February 7, 1986 is not a resignation within the
meaning of Section 9, Article VII.

While I am not unaware of the popular clamor for the holding of the "Snap Elections," a move
initiated by the "opposition" and finally accepted by the President in order to provide an
opportunity to submit to the electorate the acceptability of the President's program and policies
of government even before the expiration of his term of office in June 1987, I believe the duty to
uphold the primacy of the Constitution is a responsibility that this Court cannot shirk. For as said
by the Supreme Court of Michigan speaking through Cooley, J.:

"Constitutions do not change with the varying tides of public opinion and desire; the will of the
people therein recorded is the same inflexible law until changed by their own deliberative action;
and it cannot be permissible to the courts that, in order to aid evasions and circumventions, they
shall subject these instruments * * * to a construction, as if they were great public enemies
standing in the way of progress, and the duty of every good citizen was to get around their
provisions whenever practicable, and give them a damaging thrust whenever convenient. They
must construe them as the people did in their adoption. If the means of arriving at that
construction are within their power." Bay City v. State Treasurer, 23 Mich. 499, 506. (italics
ours).

In the same vein is what the Court said in ex rel Kinworthy v. Martin, 60 Ark. 343, 30 S.W. 421,
that in construing Constitutions, Courts have nothing to do with the argument ab inconveniente
and should not bend the Constitution to suit the law of the hour, quoting Greencascñe vs. Black,
5 Ind. 557, 565. 11 Am. Jur. 659.

The constitutionality of Batas Pambansa Blg. 883 is a justiciable one and not a political question
which the Court must decide without equivocation.

I vote, therefore, to grant the petition and declare Batas Pambansa Blg. 883 unconstitutional.
January 7, 1986

January 7, 1986

Re: G.R. No. 72915 (Philippine Bar Association, et al. vs. The Commission on Elections, et al.)
and others
Herewith is a copy of the second revised pages 1 and 2 of the resolution in the above-entitled
snap election cases dated December 19, 1985. Revision consists in the addition of paragraph 7
and statement that Melencio-Herrera, J., took no part.

(Sgd.) GLORIA C. PARAS

Clerk of Court , 140 SCRA 455, December 27, 1985