SUMMARY

#2 TAGS: LEGISLATIVE POWER

FACTS DISCUSSION/PRINCIPLES RULING
1. On 2 September Justiciability of question raised.
1976, President Section 1 of Article XVI of
Ferdinand E. Marcos 1. As a preliminary resolution, We rule that the 1973 Constitution on
issued PD 991 calling the petitioners in L-44640 (Pablo C. Amendments ordains that
for a national Sanidad and Pablito V. Sanidad) “(1) Any amendment to,
possess locus standi to challenge the
referendum on 16 or revision of, this
constitutional premise of Presidential
October 1976 for the Decree Nos. 991, 1031, and 1033. It is now Constitution may be
Citizens Assemblies an ancient rule that the valid source of a proposed by the National
(“barangays”) to stature Presidential Decrees are of such Assembly upon a vote of
resolve the issues of nature-may be contested by one who will three-fourths of all its
martial law, the sustain a direct injuries as a in result of its Members, or by a
interim assembly, its enforcement. At the instance of taxpayers, constitutional
replacement, the laws providing for the disbursement of convention. (2) The
powers of such public funds may be enjoined, upon the National Assembly may,
theory that the expenditure of public funds
replacement, the by a vote of two-thirds of
by an officer of the State for the purpose of
period of its executing an unconstitutional act all its Members, call a
existence, the length constitutes a misapplication of such funds. constitutional convention
of the period for the 4 The breadth of Presidential Decree No. or, by a majority vote of
exercise by the 991 carries all appropriation of Five Million all its Members, submit
President of his Pesos for the effective implementation of the question of calling
present powers. its purposes. 5 Presidential Decree No. such a convention to the
1031 appropriates the sum of Eight Million electorate in an election.”
2. On 22 September Pesos to carry out its provisions. 6 The Section 2 thereof
interest of the aforenamed petitioners as
1976, the President provides that “Any
taxpayers in the lawful expenditure of these
issued another PD amounts of public money sufficiently amendment to, or
1031, amending the clothes them with that personality to litigate revision of, this
previous Presidential the validity of the Decrees appropriating Constitution shall be valid
Decree 991, by said funds. Moreover, as regards when ratified by a
declaring the taxpayer's suits, this Court enjoys that majority of the votes cast
provisions of open discretion to entertain the same or in a plebiscite which shall
Presidential Decree not. 7 For the present case, We deem it be held not later than
229 providing for the sound to exercise that discretion three months after the
affirmatively so that the authority upon
manner of voting and approval of such
which the disputed Decrees are predicated
canvass of votes in may be inquired into. amendment or revision.”
“barangays” (Citizens
Assemblies) 2. The Solicitor General would consider the In the present period of
applicable to the question at bar as a pure political one, lying transition, the interim
national referendum- outside the domain of judicial review. We National Assembly
plebiscite of 16 disagree. The amending process both as to instituted in the
October 1976. The proposal and ratification, raises a judicial Transitory Provisions is
 President also issued conferred with that
PD 1033, stating the question. 8 This is especially true in cases where the amending power. Section
power of the Presidency to initiate the of normally exercised
questions to be by the legislature, is seriously doubted. Under the terms of
15 of the Transitory
submitted to the the 1973 Constitution, the power to propose amendments o Provisions reads “The
the constitution resides in the interim National Assembly in
people in the the period of transition (See. 15, Transitory provisions). After interim National
referendum- that period, and the regular National Assembly in its active Assembly, upon special
session, the power to propose amendments becomes ipso
plebiscite on 16 facto the prerogative of the regular National Assembly (Sec. call by the interim Prime
October 1976. The 1, pars. 1 and 2 of Art. XVI, 1973 constitution). The normal Minister, may, by a
course has not been followed. Rather than calling the
Decree recites in its National Assembly to constitute itself into a constituent majority vote of all its
“whereas” clauses assembly the incumbent President undertook the proposal of Members, propose
amendments and submitted the proposed amendments thru
that the people’s Presidential Decree 1033 to the people in a Referendum- amendments to this
Plebiscite on October 16. Unavoidably, the regularity
continued opposition regularity of the procedure for amendments, written in
Constitution. Such
to the convening of lambent words in the very Constitution sought to be amendments shall take
amended, raises a contestable issue. The implementing
the interim National Presidential Decree Nos. 991, 1031, and 1033, which effect when ratified in
Assembly evinces commonly purport to have the force and effect of legislation accordance with Article
are assailed as invalid, thus the issue of the validity of said
their desire to have Decrees is plainly a justiciable one, within the competence of 16 hereof.”
such body abolished this Court to pass upon. Section 2 (2), Article X of the new
Constitution provides: "All cases involving the
and replaced thru a constitutionality of a treaty, executive agreement, or law may There are, therefore, two
constitutional shall be heard and decided by the Supreme Court en banc periods contemplated in
and no treaty, executive agreement, or law may be declared
amendment, unconstitutional without the concurrence of at least ten the constitutional life of
Members. ..." The Supreme Court has the last word in the
providing for a new construction not only of treaties and statutes, but also of the
the nation: period of
interim legislative Constitution itself The amending, like all other powers normalcy and period of
organized in the Constitution, is in form a delegated and
body, which will be hence a limited power, so that the Supreme Court is vested transition. In times of
submitted directly to with that authorities to determine whether that power has normalcy, the amending
been discharged within its limits.
the people in the process may be initiated
referendum- by the proposals of the
Political questions are neatly associated
plebiscite of October with the wisdom, of the legality of a (1) regular National
16. The Commission particular act. Where the vortex of the Assembly upon a vote of
on Elections was controversy refers to the legality or validity three-fourths of all its
vested with the of the contested act, that matter is members; or (2) by a
exclusive supervision definitely justiciable or non-political. What Constitutional Convention
and control of the is in the heels of the Court is not the called by a vote of two-
October 1976 wisdom of the act of the incumbent thirds of all the Members
National President in proposing amendments to the of the National Assembly.
Constitution, but his constitutional authority
Referendum- However the calling of a
to perform such act or to assume the
Plebiscite. power of a constituent assembly. Whether Constitutional Convention
the amending process confers on the may be submitted to the
3. Pablo C. Sanidad and President that power to propose electorate in an election
Pablito V. Sanidad, amendments is therefore a downright voted upon by a majority
father and son, justiciable question. Should the contrary be vote of all the members
commenced for found, the actuation of the President would of the National Assembly.
Prohibition with merely be a brutum fulmen. If the In times of transition,
Preliminary Constitution provides how it may be amendments may be
amended, the judiciary as the interpreter of
Injunction seeking to proposed by a majority
that Constitution, can declare whether the
enjoin the COMELEC procedure followed or the authority vote of all the Members
from holding and assumed was valid or not. 10 of the interim National
conducting the Assembly upon special
Referendum call by the interim Prime
 Plebiscite on October Minister.
16; to declare We cannot accept the view of the Solicitor
without force and General, in pursuing his theory of non-
effect PD 991, 1033 justiciability, that the question of the The Court in Aquino v.
and 1031. They President's authority to propose COMELEC, had already
amendments and the regularity of the
contend that under settled that the
procedure adopted for submission of the
the 1935 and 1973 proposal to the people ultimately lie in the incumbent President is
Constitutions there is judgment of the A clear Descartes fallacy vested with that
no grant to the of vicious circle. Is it not that the people prerogative of discretion
incumbent President themselves, by their sovereign act, as to when he shall
to exercise the provided for the authority and procedure for initially convene the
constituent power to the amending process when they ratified interim National
propose the present Constitution in 1973? Whether, Assembly. The
amendments to the therefore, the constitutional provision has Constitutional Convention
been followed or not is the proper subject
new Constitution. intended to leave to the
of inquiry, not by the people themselves of
course who exercise no power of judicial President the
4. On 30 September but by the Supreme Court in whom the determination of the time
1976, another action people themselves vested that power, a when he shall initially
for Prohibition with power which includes the competence to convene the interim
Preliminary determine whether the constitutional norms National Assembly,
Injunction, was for amendments have been observed or consistent with the
instituted by Vicente not. And, this inquiry must be done a prior prevailing conditions of
M. Guzman, a not a posterior i.e., before the submission peace and order in the
to and ratification by the people.
delegate to the 1971 country.
Constitutional
Indeed, the precedents evolved by the
Convention, asserting When the Delegates to
Court or, prior constitutional cases
that the power to underline the preference of the Court's the Constitutional
propose majority to treat such issue of Presidential Convention voted on the
amendments to, or role in the amending process as one of Transitory Provisions,
revision of the non-political impression. In the Plebiscite they were aware of the
Constitution during Cases, the contention of the Solicitor
11
fact that under the same,
the transition period General that the issue on the legality of the incumbent President
is expressly conferred Presidential Decree No. 73 "submitting to was given the discretion
the Pilipino people (on January 15, 1973)
on the interim as to when he could
for ratification or rejection the Constitution
National Assembly convene the interim
of the Republic of the Philippines proposed
under action 16, by the 1971 Constitutional Convention and National Assembly. The
Article XVII of the appropriating fund s therefore "is a political President’s decision to
Constitution. Another one, was rejected and the Court defer the convening of
petition for unanimously considered the issue as the interim National
Prohibition with justiciable in nature. Subsequently in the Assembly soon found
Preliminary Ratification Cases involving the issue of
12
support from the people
Injunction was filed whether or not the validity of Presidential themselves.
Proclamation No. 1102. announcing the
by Raul M. Gonzales,
Ratification by the Filipino people of the
his son, and Alfredo constitution proposed by the 1971
In the plebiscite of
Salapantan, to Constitutional Convention," partakes of the January 10-15, 1973, at
restrain the nature of a political question, the which the ratification of
implementation of affirmative stand of' the Solicitor General the 1973 Constitution
Presidential Decrees. was dismissed, the Court ruled that the was submitted, the
 people voted against the
question raised is justiciable. Chief Justice convening of the interim
Concepcion, expressing the majority view, National Assembly. In the
said, Thus, in the aforementioned referendum of 24 July
plebiscite cases, We rejected the theory of 1973, the Citizens
the respondents therein that the question
Assemblies (“bagangays”)
whether Presidential Decree No. 73 calling
a plebiscite to be held on January 15, reiterated their sovereign
1973, for the ratification or rejection of the will to withhold the
proposed new Constitution, was valid or convening of the interim
not, was not a proper subject of judicial National Assembly. Again,
inquiry because, they claimed, it partook of in the referendum of 27
a political nature, and We unanimously February 1975, the
declared that the issue was a justiciable proposed question of
one. With Identical unanimity. We whether the interim
overruled the respondent's contention in
National Assembly shall
the 1971 habeas corpus cases,
questioning Our authority to determine the be initially convened was
constitutional sufficiency of the factual eliminated, because some
bases of the Presidential proclamation of the members of
suspending the privilege of the writ of Congress and delegates
habeas corpus on August 21, 1971, of the Constitutional
despite the opposite view taken by this Convention, who were
Court in Barcelon vs. Baker and deemed automatically
Montenegro vs. Castaneda, insofar as it members of the interim
adhered to the former case, which view
National Assembly, were
We, accordingly, abandoned and refused
to apply. For the same reason, We did not against its inclusion since
apply and expressly modified, in Gonzales in that referendum of
vs. Commission on Elections, the political- January, 1973 the people
question theory adopted in Mabanag vs. had already resolved
Lopez Vito." The return to Barcelon vs.
13
against it.
Baker and Mabanag vs. Lopez Vito, urged
by the Solicitor General, was decisively In sensu striciore, when
refused by the Court. Chief Justice the legislative arm of the
Concepcion continued: "The reasons
state undertakes the
adduced in support thereof are, however,
substantially the same as those given in proposals of amendment
support on the political question theory to a Constitution, that
advanced in said habeas corpus and body is not in the usual
plebiscite cases, which were carefully function of lawmaking. It
considered by this Court and found by it to is not legislating when
be legally unsound and constitutionally engaged in the amending
untenable. As a consequence. Our process. Rather, it is
decisions in the aforementioned habeas exercising a peculiar
corpus cases partakes of the nature and
power bestowed upon it
effect of a stare decisis which gained
added weight by its virtual reiteration." by the fundamental
charter itself. In the
II Philippines, that power is
provided for in Article XVI
of the 1973 Constitution
(for the regular National

The amending process as laid out
in the new Constitution.
1. Article XVI of the 1973 Constitution on
Amendments ordains:
SECTION 1. (1) Any
amendment to, or revision
of, this Constitution may be
proposed by the National
Assembly upon a vote of
three-fourths of all its
Members, or by a
constitutional convention.
(2) The National Assembly
may, by a vote of two-thirds
of all its Members, call a
constitutional convention
or, by a majority vote of all
its Members, submit the
question of calling such a
convention to the electorate
in an election.
SECTION 2. Any
amendment to, or revision
of, this Constitution shall be
valid when ratified by a
majority of the votes cast in
a plebiscite which shall be
held not later than three
months after the approval
of such amendment or
revision.
In the present period of transition, the
interim National Assembly instituted in the
Transitory Provisions is conferred with that
amending power. Section 15 of the
Transitory Provisions reads:
SECTION 15. The interim
National Assembly, upon
special call by the interim
Prime Minister, may, by a
majority vote of all its
Members, propose
amendments to this
Constitution. Such
amendments shall take
Assembly) or in Section
15 of the Transitory
Provisions (for the interim
National Assembly).
While ordinarily it is the
business of the legislating
body to legislate for the
nation by virtue of
constitutional
conferment, amending of
the Constitution is not
legislative in character. In
political science a
distinction is made
between constitutional
content of an organic
character and that of a
legislative character. The
distinction, however, is
one of policy, not of law.
Such being the case,
approval of the President
of any proposed
amendment is a
misnomer. The
prerogative of the
President to approve or
disapprove applies only
to the ordinary cases of
legislation. The President
has nothing to do with
proposition or adoption
of amendments to the
Constitution.
1. Is the question of the
constitutionality of
Presidential Decrees
Nos. 991, 1031 and
1033 political or
justiciable?
2. During the present
stage of the transition
period, and under, the
environmental
circumstances now
obtaining, does the
 effect when ratified in President possess
accordance with Article power to propose
Sixteen hereof. amendments to the
Constitution as well as
There are, therefore, two periods set up the required
contemplated in the constitutional life of the machinery and prescribe
nation, i.e., period of normalcy and period the procedure for the
of transition. In times of normally, the ratification of his
amending process may be initiated by the proposals by the
proposals of the (1) regular National people?
Assembly upon a vote of three-fourths of
all its members; or (2) by a Constitutional 3. Is the submission to
Convention called by a vote of two-thirds of the people of the
all the Members of the National Assembly. proposed amendments
However the calling of a Constitutional within the time frame
Convention may be submitted to the allowed therefor a
electorate in an election voted upon by a sufficient and proper
majority vote of all the members of the submission?
National Assembly. In times of transition,
amendments may be proposed by a Upon the first issue,
majority vote of all the Members of the Chief Justice Fred Ruiz
National Assembly upon special call by the Castro and Associate
interim Prime Minister,. Justices Enrique M.
Fernando, Claudio
2. This Court in Aquino v. COMELEC," had Teehankee, Antonio P.
already settled that the incumbent Barredo, Cecilia Munoz
President is vested with that prerogative of Palma, Hermogenes
discretion as to when he shall initially Concepcion Jr. and
convene the interim National Assembly. Ruperto G. Martin are of
Speaking for the majority opinion in that the view that the
case, Justice Makasiar said: "The question posed is
Constitutional Convention intended to justiciable, while
leave to the President the determination of Associate Justices Felix
the time when he shall initially convene the V. Makasiar, Felix Q.
interim National Assembly, consistent with Antonio and Ramon C.
the prevailing conditions of peace and Aquino hold the view
order in the country." Concurring, Justice that the question is
Fernandez, himself a member of that political.
Constitutional Convention, revealed:
"(W)hen the Delegates to the Constitutional Upon the second issue,
Convention voted on the Transitory Chief Justice Castro and
Provisions, they were aware of the fact that Associate Justices
under the same, the incumbent President Barredo, Makasiar,
was given the discretion as to when he Antonio, Aquino,
could convene the interim National Concepcion Jr. and
Assembly; it was so stated plainly by the Martin voted in the
sponsor, Delegate Yaneza; as a matter of affirmative, while
fact, the proposal that it be convened Associate Justices
'immediately', made by Delegate Pimentel Teehankee and Munoz
(V) was rejected. The President's decision Palma voted in the
to defer the convening of the interim negative. Associate
National Assembly soon found support
from the people themselves. In the Justice Fernando,
plebiscite of January 10-15, 1973, at which conformably to his
the ratification of the 1973 Constitution was concurring and
submitted, the people voted against the dissenting opinion in
convening of the interim National Aquino vs. Enrile (59
Assembly. In the referendum of July 24, SCRA 183), specifically
1973, the Citizens Assemblies dissents from the
("bagangays") reiterated their sovereign proposition that there is
will to withhold the convening of the interim concentration of powers
National Assembly. Again, in the in the Executive during
referendum of February 27, 1975, the periods of crisis, thus
proposed question of whether the interim raising serious doubts as
National Assembly shall be initially to the power of the
convened was eliminated, because some President to propose
of the members of Congress and delegates amendments.
of the Constitutional Convention, who were
deemed automatically members of the I Upon the third issue,
interim National Assembly, were against its Chief Justice Castro and
inclusion since in that referendum of Associate Justices
January, 1973, the people had already Barredo, Makasiar,
resolved against it. Aquino, Concepcion Jr.
and Martin are of the
3. In sensu strictiore, when the legislative view that there is a
arm of the state undertakes the proposals sufficient and proper
of amendment to a Constitution, that body submission of the
is not in the usual function of lawmaking. lt proposed amendments
is not legislating when engaged in the for ratification by the
amending process.16 Rather, it is people. Associate
exercising a peculiar power bestowed upon Justices Barredo and
it by the fundamental charter itself. In the Makasiar expressed the
Philippines, that power is provided for in hope, however that the
Article XVI of the 1973 Constitution (for the period of time may be
regular National Assembly) or in Section 15 extended. Associate
of the Transitory Provisions (for the Justices Fernando,
National Assembly). While ordinarily it is Makasiar and Antonio
the business of the legislating body to are of the view that the
legislate for the nation by virtue of question is political and
constitutional conferment amending of the therefore beyond the
Constitution is not legislative in character. competence and
In political science a distinction is made cognizance of this Court,
between constitutional content of an Associate Justice
organic character and that of a legislative Fernando adheres to his
character'. The distinction, however, is one concurrence in the
of policy, not of law. Such being the case,
17
opinion of Chief Justice
approval of the President of any proposed Concepcion in Gonzales
amendment is a misnomer The 18
vs. COMELEC (21
prerogative of the President to approve or SCRA 774).Associate
disapprove applies only to the ordinary Justices Teehankee and
cases of legislation. The President has MUNOZ Palma hold that
nothing to do with proposition or adoption prescinding from the
of amendments to the Constitution. 19
President's lack of
authority to exercise the
III constituent power to
propose the
Concentration of Powers amendments, etc., as
above stated, there is no
in the President during fair and proper
submission with
sufficient information and
crisis government.
time to assure intelligent
consent or rejection
1. In general, the governmental powers in under the standards set
crisis government the Philippines is a crisis by this Court in the
government today are more or less controlling cases of
concentrated in the President. According
20
Gonzales, supra, and
to Rossiter, "(t)he concentration of Tolentino vs. COMELEC
government power in a democracy faced (41 SCRA 702).
by an emergency is a corrective to the
crisis inefficiencies inherent in the doctrine
Chief Justice Castro and
of the separation of powers. In most free
Associate Justices
states it has generally been regarded as
Barredo, Makasiar,
imperative that the total power of the
Antonio, Aquino,
government be parceled out among three
Concepcion Jr. and
mutually independent branches executive,
Martin voted to dismiss
legislature, and judiciary. It is believed to
the three petitions at bar.
be destructive of constitutionalism if any
For reasons as
one branch should exercise any two or
expressed in his
more types of power, and certainly a total
separate opinion,
disregard of the separation of powers is, as
Associate Justice
Madison wrote in the Federalist, No. 47,
Fernando concurs in the
'the very definition of tyranny.' In normal
result. Associate
times the separation of powers forms a
Justices Teehankee and
distinct obstruction to arbitrary
Munoz Palma voted to
governmental action. By this same token,
grant the petitions.
in abnormal times it may form an
insurmountable barrier to a decisive
emergency action in behalf of the state and ACCORDINGLY, the
its independent existence. There are vote being 8 to 2 to
moments in the life of any government dismiss, the said
when all powers must work together in petitions are hereby
unanimity of purpose and action, even if dismissed. This decision
this means the temporary union of is immediately
executive, legislative, and judicial power in executory.
the hands of one man. The more complete
the separation of powers in a constitutional
system, the more difficult and yet the more
necessary will be their fusion in time of
crisis. This is evident in a comparison of
the crisis potentialities of the cabinet and
presidential systems of government. In the
former the all-important harmony of
legislature and executive is taken for
granted; in the latter it is neither
guaranteed nor to be to confidently
expected. As a result, cabinet is more
easily established and more trustworthy
than presidential dictatorship. The power of
the state in crisis must not only be
concentrated and expanded; it must also
be freed from the normal system of
constitutional and legal limitations. John
21

Locke, on the other hand, claims for the

executive in its own right a broad discretion
capable even of setting aside the ordinary
laws in the meeting of special exigencies
for which the legislative power had not
provided. The rationale behind such
22

broad emergency powers of the Executive

is the release of the government from "the
paralysis of constitutional restrains" so that
the crisis may be ended and normal times
restored.

2. The presidential exercise of legislative

powers in time of martial law is now a
conceded valid at. That sun clear authority
of the President is saddled on Section 3
(pars. 1 and 2) of the Transitory Provisions,
thus:23

The incumbent President of

the Philippines shall initially
convene the interim
National Assembly and
shall preside over its
sessions until the interim
Speaker shall have been
elected. He shall continue
to exercise his powers and
prerogatives under the
nineteen hundred and
thirty-five Constitution and
the powers vested in the
President and the Prime
Minister under this
Constitution until the calls
upon the interim National
Assembly to elect the
interim President and the
interim Prime Minister, who
shall then exercise their
respective powers vested
by this Constitution.

All proclamations, orders,

 decrees, instructions, and
acts promulgated, issued,
or done by the incumbent
President shall be part of
the law of the land, and
shall remain valid, binding,
and effective even after
lifting of martial law or the
ratification of this
Constitution, unless
modified, revoked, or
superseded by subsequent
proclamations, orders,
decrees, instructions, or
other acts of the incumbent
President, or unless
expressly and explicitly
modified or repealed by the
regular National Assembly.

"It is unthinkable," said Justice Fernandez,

a 1971 Constitutional Convention delegate,
"that the Constitutional Convention, while
giving to the President the discretion when
to call the interim National Assembly to
session, and knowing that it may not be
convened soon, would create a vacuum in
the exercise of legislative powers.
Otherwise, with no one to exercise the
lawmaking powers, there would be
paralyzation of the entire governmental
machinery." Paraphrasing Rossiter, this is
24

an extremely important factor in any

constitutional dictatorship which extends
over a period of time. The separation of
executive and legislature ordained in the
Constitution presents a distinct obstruction
to efficient crisis government. The steady
increase in executive power is not too
much a cause for as the steady increase in
the magnitude and complexity of the
problems the President has been called
upon by the Filipino people to solve in their
behalf, which involve rebellion, subversion,
secession, recession, inflation, and
economic crisis-a crisis greater than war. In
short, while conventional constitutional law
just confines the President's power as
Commander-in-Chief to the direction of the
operation of the national forces, yet the
facts of our political, social, and economic
disturbances had convincingly shown that
in meeting the same, indefinite power
should be attributed to tile President to take
emergency measures 25

IV

Authority of the incumbent

President t to propose

amendments to the Constitution.

1. As earlier pointed out, the power to

legislate is constitutionally consigned to the
interim National Assembly during the
transition period. However, the initial
convening of that Assembly is a matter fully
addressed to the judgment of the
incumbent President. And, in the exercise
of that judgment, the President opted to
defer convening of that body in utter
recognition of the people's preference.
Likewise, in the period of transition, the
power to propose amendments to the
Constitution lies in the interim National
Assembly upon special call by the
President (See. 15 of the Transitory
Provisions). Again, harking to the dictates
of the sovereign will, the President decided
not to call the interim National Assembly.
Would it then be within the bounds of the
Constitution and of law for the President to
assume that constituent power of the
interim Assembly vis-a-vis his assumption
of that body's legislative functions? The
answer is yes. If the President has been
legitimately discharging the legislative
functions of the interim Assembly, there is
no reason why he cannot validly discharge
the function of that Assembly to propose
amendments to the Constitution, which is
but adjunct, although peculiar, to its gross
legislative power. This, of course, is not to
say that the President has converted his
office into a constituent assembly of that
nature normally constituted by the
legislature. Rather, with the interim
National Assembly not convened and only
the Presidency and the Supreme Court in
operation, the urges of absolute necessity
render it imperative upon the President to
act as agent for and in behalf of the people
to propose amendments to the
Constitution. Parenthetically, by its very
constitution, the Supreme Court possesses
no capacity to propose amendments
without constitutional infractions. For the
President to shy away from that actuality
and decline to undertake the amending
process would leave the governmental
machineries at a stalemate or create in the
powers of the State a destructive vacuum,
thereby impeding the objective of a crisis
government "to end the crisis and restore
normal times." In these parlous times, that
Presidential initiative to reduce into
concrete forms the constant voices of the
people reigns supreme. After all,
constituent assemblies or constitutional
conventions, like the President now, are
mere agents of the people .26

2. The President's action is not a unilateral

move. As early as the referendums of
January 1973 and February 1975, the
people had already rejected the calling of
the interim National Assembly. The Lupong
Tagapagpaganap of the Katipunan ng mga
Sanggunian, the Pambansang Katipunan
ng mga Barangay, and the Pambansang
Katipunan ng mga Barangay, representing
42,000 barangays, about the same number
of Kabataang Barangay organizations,
Sanggunians in 1,458 municipalities, 72
provinces, 3 sub-provinces, and 60 cities
had informed the President that the
prevailing sentiment of the people is for the
abolition of the interim National Assembly.
Other issues concerned the lifting of martial
law and amendments to the
Constitution .27 The national organizations of
Sangguniang Bayan presently proposed to settle the issues
of martial law, the interim Assembly, its replacement, the
period of its existence, the length of the period for the
exercise by the President of its present powers in a
referendum to be held on October 16 .28 The Batasang
Bayan (legislative council) created under Presidential
Decree 995 of September 10, 1976, composed of 19 cabinet
members, 9 officials with cabinet rank, 91 members of the
Lupong Tagapagpaganap (executive committee) of the
Katipunan ng mga Sangguniang Bayan voted in session to
submit directly to the people in a plebiscite on October 16,
the previously quoted proposed amendments to the
Constitution, including the issue of martial law .29 Similarly,
the "barangays" and the "sanggunians" endorsed to the
President the submission of the proposed amendments to
the people on October 16. All the foregoing led the President
to initiate the proposal of amendments to the Constitution
and the subsequent issuance of Presidential Decree No,
1033 on September 22, 1976 submitting the questions
(proposed amendments) to the people in the National
Referendum-Plebiscite on October 16.

The People is Sovereign

1. Unlike in a federal state, the location of

sovereignty in a unitary state is easily
seen. In the Philippines, a republican and
unitary state, sovereignty "resides in the
people and all government authority
emanates from them .30 In its fourth meaning,
Savigny would treat people as "that particular organized
assembly of individuals in which, according to the
Constitution, the highest power exists." 31 This is the concept
of popular sovereignty. It means that the constitutional
legislator, namely the people, is sovereign 32 In
consequence, the people may thus write into the
Constitution their convictions on any subject they choose in
the absence of express constitutional prohibition. 33 This is
because, as Holmes said, the Constitution "is an experiment,
as all life is all experiment."34 "The necessities of orderly
government," wrote Rottschaefer, "do not require that one
generation should be permitted to permanently fetter all
future generations." A constitution is based, therefore, upon
a self-limiting decision of the people when they adopt it. 35

2. The October 16 referendum-plebiscite is

a resounding call to the people to exercise
their sovereign power as constitutional
legislator. The proposed amendments, as
earlier discussed, proceed not from the
thinking of a single man. Rather, they are
the collated thoughts of the sovereign will
reduced only into enabling forms by the
authority who can presently exercise the
powers of the government. In equal vein,
the submission of those proposed
amendments and the question of martial
law in a referendum-plebiscite expresses
but the option of the people themselves
implemented only by the authority of the
President. Indeed, it may well be said that
the amending process is a sovereign act,
although the authority to initiate the same
and the procedure to be followed reside
somehow in a particular body.

VI

Referendum-Plebiscite not
rendered nugatory by the

participation of the 15-year olds.

1. October 16 is in parts a referendum and

a plebiscite. The question - (1) Do you
want martial law to be continued? - is a
referendum question, wherein the 15-year
olds may participate. This was prompted by
the desire of the Government to reach the
larger mas of the people so that their true
pulse may be felt to guide the President in
pursuing his program for a New Order. For
the succeeding question on the proposed
amendments, only those of voting age of
18 years may participate. This is the
plebiscite aspect, as contemplated in
Section 2, Article XVI of the new
Constitution. On this second question, it
36

would only be the votes of those 18 years

old and above which will have valid bearing
on the results. The fact that the voting
populace are simultaneously asked to
answer the referendum question and the
plebiscite question does not infirm the
referendum-plebiscite. There is nothing
objectionable in consulting the people on a
given issue, which is of current one and
submitting to them for ratification of
proposed constitutional amendments. The
fear of commingled votes (15-year olds and
18-year olds above) is readily dispelled by
the provision of two ballot boxes for every
barangay center, one containing the ballots
of voters fifteen years of age and under
eighteen, and another containing the
ballots of voters eighteen years of age and
above. The ballots in the ballot box for
37

voters fifteen years of age and under

eighteen shall be counted ahead of the
ballots of voters eighteen years and above
contained in another ballot box. And, the
results of the referendum-plebiscite shall
be separately prepared for the age
groupings, i.e., ballots contained in each of
the two boxes. 38

2. It is apt to distinguish here between a

"referendum" and a "plebiscite." A
"referendum" is merely consultative in
character. It is simply a means of
assessing public reaction to the given
issues submitted to the people foe their
consideration, the calling of which is
derived from or within the totality of the
executive power of the President. It is
39

participated in by all citizens from the age

of fifteen, regardless of whether or not they
are illiterates, feeble-minded, or ex-
convicts . A "plebiscite," on the other
40

hand, involves the constituent act of those

"citizens of the Philippines not otherwise
disqualified by law, who are eighteen years
of age or over, and who shall have resided
in the Philippines for at least one year and
in the place wherein they propose to vote
for at least six months preceding the
election Literacy, property or any other
substantive requirement is not imposed. It
is generally associated with the amending
process of the Constitution, more
particularly, the ratification aspect.

VII

1. There appeals to be no valid basis for

the claim that the regime of martial law
stultifies in main the freedom to dissent.
That speaks of a bygone fear. The martial
law regime which, in the observation of
Justice Fernando, is impressed with a
41

mild character recorded no State

imposition for a muffled voice. To be sure,
there are restraints of the individual liberty,
but on certain grounds no total suppression
of that liberty is aimed at. The for the
referendum-plebiscite on October 16
recognizes all the embracing freedoms of
expression and assembly The President
himself had announced that he would not
countenance any suppression of dissenting
views on the issues, as he is not interested
in winning a "yes" or "no" vote, but on the
genuine sentiment of the people on the
issues at hand. Thus, the dissenters soon
42

found their way to the public forums,

voicing out loud and clear their adverse
views on the proposed amendments and
even (in the valid ratification of the 1973
Constitution, which is already a settled
matter. Even government employees have
43

been held by the Civil Service Commission

free to participate in public discussion and
even campaign for their stand on the
referendum-plebiscite issues. 44

VIII

Time for deliberation

is not short.

1. The period from September 21 to

October 16 or a period of 3 weeks is not
too short for free debates or discussions on
the referendum-plebiscite issues. The
questions are not new. They are the issues
of the day. The people have been living
with them since the proclamation of martial
law four years ago. The referendums of
1973 and 1975 carried the same issue of
martial law. That notwithstanding, the
contested brief period for discussion is not
without counterparts in previous plebiscites
for constitutional amendments. Justice
Makasiar, in the Referendum Case, recalls:
"Under the old Society, 15 days were
allotted for the publication in three
consecutive issues of the Official Gazette
of the women's suffrage amendment to the
Constitution before the scheduled
plebiscite on April 30, 1937 (Com. Act No.
34). The constitutional amendment to
append as ordinance the complicated
Tydings-Kocialskowski was published in
only three consecutive issues of the Official
Gazette for 10 days prior to the scheduled
plebiscite (Com. Act 492). For the 1940
Constitutional amendments providing for
the bicameral Congress, the reelection of
the President and Vice President, and the
creation of the Commission on Elections,
20 days of publication in three consecutive
issues of the Official Gazette was fixed
(Com Act No. 517). And the Parity
Amendment, an involved constitutional
amendment affecting the economy as well
as the independence of the Republic was
publicized in three consecutive issues of
the Official Gazette for 20 days prior to the
plebiscite (Rep. Act No. 73)." 45

2. It is worthy to note that Article XVI of the

Constitution makes no provision as to the
specific date when the plebiscite shall be
held, but simply states that it "shall be held
not later than three months after the
approval of such amendment or revision."
In Coleman v. Miller, the United States
46

Supreme court held that this matter of

submission involves "an appraisal of a
great variety of relevant conditions,
political, social and economic," which "are
essentially political and not justiciable." The
constituent body or in the instant cases, the
President, may fix the time within which the
people may act. This is because proposal
and ratification are not treated as unrelated
acts, but as succeeding steps in a single
endeavor, the natural inference being that
they are not to be widely separated in time;
second, it is only when there is deemed to
be a necessity therefor that amendments
are to be proposed, the reasonable
implication being that when proposed, they
are to be considered and disposed of
presently, and third, ratification is but the
expression of the approbation of the
people, hence, it must be done
contemporaneously. In the words of
47

Jameson, "(a)n alteration of the

Constitution proposed today has relation to
the sentiment and the felt needs of today,
and that, if not ratified early while that
sentiment may fairly be supposed to exist.
it ought to be regarded as waived, and not
again to be voted upon, unless a second
time proposed by proper body