EN BANC

[G.R. No. 72915. December 19, 1985.]

PHILIPPINE BAR ASSOCIATION, ET AL., petitioners, vs. THE

COMMISSION ON ELECTIONS, ET AL., respondents.

[G.R. No. 72922. December 19, 1985.]

MARTINIANO P. VIVO, ET AL. , petitioners, v s . COMMISSION

ON ELECTIONS, ET AL., respondents.

[G.R. No. 72923. December 19, 1985.]

MP AQUILINO Q. PIMENTEL, JR., ET AL., petitioners, vs. THE

TREASURER OF THE PHILIPPINES, ET AL., respondents.

[G.R. No. 72924. December 19, 1985.]

THE MOVEMENT OF ATTORNEYS FOR BROTHERHOOD,

INTEGRITY AND NATIONALISM, INC. [MABINI], ET AL.,
petitioners, vs. THE COMMISSION ON ELECTIONS, ET AL.,
respondents.

[G.R. No. 72927. December 19, 1985.]

THE LIBERAL PARTY, ET AL., petitioners, vs. THE NATIONAL

TREASURER OF THE PHILIPPINES, respondents.

[G.R. No. 72928. December 19, 1985.]

CONCERNED WOMEN OF THE PHILIPPINES, ET AL.,

petitioners, vs. HON. MAXIMIANO SAVELLANO, ET AL.,
respondents.

[G.R. No. 72935. December 19, 1985.]

ALBERTO G. ROMULO, ET AL., petitioners, vs. COMMISSION

ON ELECTIONS, ET AL., respondents.

[G.R. No. 72954. December 19, 1985.]

VICTOR C. AVECILLA, ET AL., petitioners, vs. COMMISSION ON

ELECTIONS, respondents.
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 [G.R. No. 72957. December 19, 1985.]

NATIONAL BAR ASSOCIATION OF THE PHILIPPINES, ET AL.,

petitioners, vs. COMMISSION ON ELECTIONS, ET AL.,
respondents.

[G.R. No. 72968. December 19, 1985.]

LABAN NG BAYAN [LABAN], ET AL., petitioners, vs. THE

COMMISSION ON ELECTIONS, ET AL., respondents.

[G.R. No. 72986. December 19, 1985.]

JUAN T. DAVID, petitioners, vs. THE COMMISSION ON

ELECTIONS, ET AL., respondents.

RESOLUTION

Gentlemen :

Quoted hereunder, for your information, is a resolution of the Court En

Banc dated December 19, 1985. ATcEDS

"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.
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 "Justices Hugo Gutierrez, Jr., B.S. de la Fuente, Serafin R. Cuevas,
Nestor B. Alampay and Lino M. Patajo voted to DECLARE B. P. 883
unconstitutional and to grant the injunction prayed for.
"Justice Teehankee is of the opinion that inasmuch as there are less
than ten votes in favor of declaring B.P. Blg. 883 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 Javellana vs. Executive Secretary, 50 SCRA 141.
"Justices Teehankee, Plana, Escolin, Relova, Gutierrez, Jr., de la Fuente,
Alampay and Patajo filed 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
following 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." ETaSDc

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

Very truly yours,

(SGD.) GLORIA C. PARAS

Clerk of Court

Separate Opinions

TEEHANKEE, J., concurring:

I vote for the dismissal of the petition for prohibition against

enforcement of BP Blg. 883 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.
T h e stated issue is quite simple: Is B.P. Blg. 883 calling for special
national elections on February 7, 1986 for the offices of President and Vice-
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 President of the Philippines ( for the first time since the pre-martial era 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 after 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 Vice-
President 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 oft-expressed "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. . . . In prescribing the procedure
to fill the office of President in case of 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/
DCISAE

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
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 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 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 reelection 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
Pambansa 4/ "irrevocably vacati(ng) 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 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
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 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. . . . 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/ cAHIST

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
stop present snap poll activities on its tracks. . . . 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
t h e 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.
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 Beyond these considerations, national survival depends on the forthcoming
snap poll.
"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 to govern. Hence the people must be given a chance to decide;
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 question more political than the election.AHEDaI

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
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 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. . . . 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. . . . 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. . . . 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 for 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.
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
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 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. DTEAHI

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.
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.
Given this environmental circumstances and a statute not 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.

RELOVA, J., separate opinion:

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

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 "Section 9. In case of permanent disability, death, removal
from office or resignation of the President, the Vice-President 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 competent 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. . . . ." (Emphasis 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 . . ."
(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 letter-resignation, 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. TSHEIc

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
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 1973 Constitution. . . ." (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
plenary and subject only to such limitation as are found in the
Constitution (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'
(Arnault 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.

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.
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 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 . . . 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.'' IECAaD

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 execution of the laws
cannot ignore or disregard what it ordains. In its task of applying the
law to the facts as found in deciding cases, the judiciary is called upon
to maintain inviolate what is decreed by the fundamental law. 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 mandated 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
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 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 vice-president. 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. TcSHaD

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 non-existent 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
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 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. ITAaCc

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
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 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.

NESTOR B. ALAMPAY, J.:

The basic duty of this Court is restricted to the determination of

whether B.P. 833 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. 833 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. 833. 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, 1986,
called for pursuant to Batas Pambansa Blg. 833, 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 before 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
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 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. 833
should be declared unconstitutional for being violative of the spirit and letter
of our Constitution. I vote, therefore, to declare Batas Pambansa Blg. 833
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. IaHSCc

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 for 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
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 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 contemplates 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 his proclamation. The President can only shorten his term of office
b y 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 vice-president in accordance with the provisions of Section 9
of Article VII of the Constitution.
aSTAIH

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
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 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 for 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 vice-president 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 votes cast in a plebiscite.
". . . 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 canon 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. . .
." (Ellingham v. Dye , 178 Ind. 336; 99 NE 1, 15). (emphasis 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
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 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.: AIHECa

"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. (emphasis
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.
In connection with the resolution of December 19, 1985 in the above-
entitled cases, Justice De la Fuente filed a separate opinion in the Clerk of
Court's Office on December 23, 1985:

DE LA 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
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 end o f his term in June 1987. Such "resignation", as I see it, must be one
resulting in 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 herein-below the most pertinent portions
of his dissertation. 2/ I 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
unconsitutionality 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 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."
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 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 afore-mentioned
succession provision. B.P. Blg. 883 constitutes, plainly, a deviation from and
evasion of that provision. SHDAEC

Finally, if the objective of the so-called "snap" election law was to

enable the President to ask the Filipino people for a vote of confidence, the
most appropriate and adequate vehicle for that is a referendum as
suggested by MP Arturo Tolentino and former Vice-President Pelaez. A
negative vote would surely bring about a vacancy in the office of the
President, which can then be filled up in accordance with the succession
procedure provided by section 9, Article VII. The other option, also suggested
by both, is a constitutional amendment incorporating the features of B.P.
Blg. 883, to be submitted to the people for ratification.
Footnotes
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 * Revision consists in the addition of paragraph 7 and statement that Melencio-
Herrera, J., took no part.
TEEHANKEE, J., concurring:

1/. Emphasis copied.

2/. Phil. Daily Express issue of Dec. 18, 1985.

3/. Times Journal issue of August 4, 1985.

4/. Idem, Annex "A".

5/. Bulletin Today issue of December 17, 1985.

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

DE LA FUENTE, J., separate opinion:

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.
xxx xxx xxx

". . . a severe blow on it at this time, like holding an unconstitutional

presidential election, could irreparably destroy it.
xxx xxx xxx

"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. . . .

xxx xxx xxx

"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
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 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 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 its occurrence, the events take place,
domino-like, 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 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
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 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 forty-five
(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 above-cited Section 9 does not follow the traditions. The
Constitution itself supplies the details. It allows the legislature no leeway to
do so.
xxx xxx xxx
"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.
xxx xxx xxx

"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 short-circuiting 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.
xxx xxx xxx

"On the basis of the foregoing detailed 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.
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 "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 "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 . . .

xxx xxx xxx

"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. In this connection, may I
offer the following suggestions, . . . :
"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 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
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 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 supremacy . . ."

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