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Statutory Construction Cases
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Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-40004 January 31, 1975
BENIGNO S. AQUINO, JR., TRINIDAD HERRERA, BISHOP FRANCISCO CLAVER, S.J.,
BISHOP ANTONIO NEPOMUCENO, BISHOP JESUS VALERA, BISHOP FELIX ZAFRA,
BISHOP TEOTIMO PACIS, EUGENIO LOPEZ, JR., SERGIO OSMEÑA, III, ANTONIO
ARANETA, ANTONIO MIRANDA, RAUL GONZALES, JOKER ARROYO, and EMILIO DE
PERALTA, petitioners,
vs.
COMMISSION ON ELECTIONS, and NATIONAL TREASURER, respondents.
Lorenzo M. Tañada, Renato E. Tañada and Wigberto E. Tañada for petitioners
Office of the Solicitor General Estelito P Mendoza, Assistant Solicitor General Hugo E. Gutierrez,
Jr., Assistant Solicitor General Vicente V. Mendoza & Assistant Solicitor General Reynato S.
Puno for respondents.
MAKASIAR, J.:p
I
This petition for prohibition, which was filed on January 21, 1975, seeks the nullification of
Presidential Decrees Nos. 1366, 1366-A, calling a referendum for February 27, 1975,
Presidential Decrees Nos. 629 and 630 appropriating funds therefor, and Presidential Decrees
Nos. 637 and 637-A specifying the referendum questions, as well as other presidential decrees,
orders and instructions relative to the said referendum.
The respondents, through the Solicitor General, filed their comment on January 28, 1975. After
the oral argument of over 7 hours on January 30, 1975, the Court resolved to consider the
comment as answer and the case submitted for decision.
The first ground upon which the petition is predicated states that President Ferdinand E. Marcos
does not hold any legal office nor possess any lawful authority under either the 1935
Constitution or the 1973 Constitution and therefore has no authority to issue the questioned
proclamations, decrees and orders. This challenges the title of the incumbent President to the
office of the Presidency and therefore is in the nature of a quo warranto proceedings, the
appropriate action by which the title of a public officer can be questioned before the courts. Only
the Solicitor General or the person who asserts title to the same office can legally file such a
quo warranto petition. The petitioners do not claim such right to the office and not one of them is
the incumbent Solicitor General. Hence, they have no personality to file the suit (Castro vs. Del
Rosario, Jan. 30, 1967, 19 SCRA 197; City of Manila & Antonio Villegas vs. Abelardo Subido, et.
al., May 20, 1966, 17 SCRA 231-232, 235-236; Nacionalista Party vs. Bautista, 85 Phil. 101;
and Nacionalista Party vs. Vera, 85 Phil. 127). It is established jurisprudence that the legality of
the appointment or election of a public officer cannot be questioned collaterally through a
petition for prohibition which assails the validity of his official acts.
The foregoing governing legal principles on public officers are re-stated in order to avert any
misapprehension that they have been eroded by Our resolution in the instant petition.
Because of the far-reaching implications of the herein petition, the Court resolved to pass upon
the issues raised.
II
This Court already ruled in the Ratification Cases "that there is no further judicial obstacle to the
new Constitution being considered in force and effect." As Chief Justice Makalintal stressed in
the Habeas Corpus cases, the issue as to its effectivity "has been laid to rest by Our decision in
Javellana versus Executive Secretary (L-36142, March 31, 1973, 50 SCRA 30, 141), and of
course by the existing political realities both in the conduct of national affairs and in our relation
with countries" (Aquino, Jr. vs. Enrile and 8 companion cases, L-35546, L-35538-40, L-35538-
40, L-35547, L-35556, L-35571 and
L-35573, Sept. 17, 1971, 59 SCRA 183, 241).
III
In the aforesaid Habeas Corpus cases, We affirmed the validity of Martial Law Proclamation No.
1081 issued on September 22, 1972 by President Marcos because there was no arbitrariness in
the issuance of said proclamation pursuant to the 1935 Constitution that the factual bases had
not disappeared but had even been exacerbated; that the question is to the validity of the
Martial Law proclamation has been foreclosed by Section 3(2) of Article XVII of the 1973
Constitution, which provides that "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, legal, binding and effective even after the lifting of Martial Law or the
ratification of this Constitution ..."; and that "any inquiry by this Court in the present cases into
the constitutional sufficiency of the factual bases for the proclamation of Martial Law, has
become moot and purposeless as a consequence of the general referendum of July 27-28,
1973. The question propounded to the voters was: "Under the (1973) Constitution, the President,
if he so desires, can continue in office beyond 1973. Do you want President Marcos to continue
beyond 1973 and finish the reforms be initiated under Martial Law?" The overwhelming majority
of those who cast their ballots, including citizens beyond 15 and 18 years, voted affirmatively on
the proposal. The question was thereby removed from the area of presidential power under the
Constitution and transferred to the seat of sovereignty itself. Whatever may be the nature of the
exercise of that power by the President in the beginning — whether or not purely political and
therefore non-justiciable — this Court is precluded from applying its judicial yardstick to the act
of the sovereign." (Aquino, Jr. vs. Enrile, supra, 59 SCRA 183,
240-242).
Under the 1935 Constitution, President Ferdinand E. Marcos was duly reelected by the vote of
the sovereign people in the Presidential elections of 1969 by an overwhelming vote of over
5,000,000 electors as against 3,000,000 votes for his rival, garnering a majority of from about
896,498 to 1,436,118 (Osmeña vs. Marcos, Presidential Election Contest No. 3, Jan. 8, 1973).
While his term of office under the 1935 Constitution should have terminated on December 30,
1973, by the general referendum of July 27-28, 1973, the sovereign people expressly
authorized him to continue in office even beyond 1973 under the 1973 Constitution (which was
validly ratified on January 17, 1973 by the sovereign people) in order to finish the reforms he
initiated under Martial Law; and as aforestated, as this was the decision of the people, in whom
"sovereignty resides ... and all government authority emanates ...," it is therefore beyond the
scope of judicial inquiry (Aquino, Jr. vs. Enrile, et. al., supra, p. 242).
The logical consequence therefore is that President Marcos is a de jure President of the
Republic of the Philippines.
IV
The next issue is whether he is the incumbent President of the Philippines within the purview of
Section 3 of Article XVII on the transitory provisions of the new or 1973 Constitution. As
heretofore stated, by virtue of his reelection in 1969, the term of President Marcos tinder the
1935 Constitution was to terminate on December 30, 1973. The new Constitution was approved
by the Constitutional Convention on November 30, 1972, still during his incumbency. Being the
only incumbent President of the Philippines at the time of the approval of the new Constitution
by the Constitutional Convention, the Constitutional Convention had nobody in mind except
President Ferdinand E. Marcos who shall initially convene the interim Assembly. It was the
incumbent President Marcos alone who issued Martial Law Proclamation No. 1081 on
September 22, 1972 and issued orders and decrees as well as instructions and performed other
acts as President prior to the approval on November 30, 1972 of the new Constitution by the
Constitutional Convention and prior to its ratification on January 17, 1973 by the people.
Consequently, since President Marcos was the only incumbent President at the time, because
his term under the 1935 Constitution has yet to expire on December 30, 1973, the Constitutional
Convention, in approving the new Constitution, had in mind only him when in Section 3(2) of
Article XVII of the new Constitution it provided "that all the 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, legal, 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."
The term incumbent President of the Philippines employed in Section 9 of the same Article XVII
likewise could only refer to President Ferdinand E. Marcos. .
This conclusion is further buttressed by Section 10 of the same Article XVII which provides that
"the incumbent members of the Judiciary may continue in office until they reach the age of 70
years unless sooner replaced in accordance with the preceding section hereof." There can be
no dispute that the phrase "incumbent members of the Judiciary" can only refer to those
members of the Judiciary who were already Justices and Judges of the various courts of the
country at the time the Constitutional Convention approved the new Constitution on November
30, 1972 and when it was ratified.
Because President Ferdinand E. Marcos is the incumbent President referred to in Article XVII of
the transitory provisions of the 1973 Constitution, he can "continue to exercise the powers and
prerogatives under the nineteen hundred and thirty five Constitution and the powers vested in
the President and the Prime Minister under this Constitution until he calls upon the interim
National Assembly to elect the interim President and the interim Prime Minister, who shall then
exercise their legislative powers vested by this Constitution (Sec. 3[l], Art. XVII, 1973
Constitution).
Under the 1935 Constitution, the President is empowered to proclaim martial law. Under the
1973 Constitution, it is the Prime Minister who is vested with such authority (Sec. 12, Art. IX,
1973 Constitution).
WE affirm the proposition that as Commander-in-Chief and enforcer or administrator of martial
law, the incumbent President of the Philippines can promulgate proclamations, orders and
decrees during the period of Martial Law essential to the security and preservation of the
Republic, to the defense of the political and social liberties of the people and to the institution of
reforms to prevent the resurgence of rebellion or insurrection or secession or the threat thereof
as well as to meet the impact of a worldwide recession, inflation or economic crisis which
presently threatens all nations including highly developed countries (Rossiter, Constitutional
Dictatorship, 1948 Ed., pp. 7, 303; see also Chief Justice Stone's Concurring Opinion in Duncan
vs. Kahanamoku, 327 US 304).
To dissipate all doubts as to the legality of such law-making authority by the President during
the period of Martial Law, Section 3(2) of Article XVII of the New Constitution expressly affirms
that all the proclamations, orders, decrees, instructions and acts he promulgated, issued or did
prior to the approval by the Constitutional Convention on November 30, 1972 and prior to the
ratification by the people on January 17, 1973 of the new Constitution, are "part of the law of the
land, and shall remain valid, legal, binding and effective even after the 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 specifically modified or repealed by the regular National Assembly."
The entire paragraph of Section 3(2) is not a grant of authority to legislate, but a recognition of
such power as already existing in favor of the incumbent President during the period of Martial
Law.
Dr. Jose M. Aruego, noted authority in Constitutional Law as well as delegate to the 1935 and
1971 Constitutional Conventions, shares this view, when he states thus:
108. ... — These Presidential Proclamations, order, decrees, instructions, etc. had been
issued by the incumbent President in the exercise of what he consider to be his powers
under martial law, in the same manner that the lawmaking body had enacted several
thousand statutes in the exercise of what it consider to be its power under the Organic
Laws. Both these classes of rules of law — by the President and by the lawmaking body
— were, under general principles of constitutional law, presumed to be constitutional
until declared unconstitutional by the agency charged with the power and function to
pass upon constitutional law question — the Judiciary, at the apex of which is the
Supreme Court. Hence, the inclusion of both group of rules — President rules and
legislative rules — in the new Constitution for the people to approve or disapprove in the
scheduled plebiscite. (Aruego, The New Constitution, 1973 Ed., p. 230).
Delegate Arturo Pacificador, a Floor Leader of the 1971 Constitutional Convention, in explaining
Section 3(2) of Article XVII, underscores this recognition of the legislative power of the
incumbent President as Commander-in-Chief during martial Law, thus:
The second paragraph sets forth the understanding of the Convention of the nature,
extent and scope of the powers of the incumbent President of the Philippines, under
martial law. It expressly recognizes that the commander-in-chief, under martial law, can
exercise all necessary powers to meet the perils of invasion, insurrection, rebellion or
imminent danger thereof. This provision complements Section 7, Article XVII of the
Constitution that "all existing laws not inconsistent with this Constitution shall remain
operative until amended, modified, or repealed by the National Assembly."
The second paragraph is an express recognition on the part of the framers of the new
Constitution of the wisdom of the proclamations, orders, decrees and instructions by the
incumbent President in the light of the prevailing conditions obtaining in the country. (Montejo,
New Constitution, 1973 Ed., p. 314, emphasis supplied).
The power under the second clause of Section 3(2) is not limited merely to modifying, revoking
or superseding all his proclamations, orders, decrees, instructions or other acts promulgated,
issued or done prior to the ratification of the 1973 Constitution. But even if the scope of his
legislative authority thereunder is to be limited to the subject matter of his previous
proclamations, orders, decrees or instructions or acts, the challenged Proclamations Nos. 1366
and 1366-A, as well as Presidential Decrees Nos. 629, 630, 637 and 637-A are analogous to
the referenda of January, 1973 and July 27-28, 1973.
The actions of the incumbent President are not without historical precedents. It should be
recalled that the American Federal Constitution, unlike the 1935 or 1973 Constitution of the
Philippines, does not confer expressly on the American President the power to proclaim Martial
Law or to suspend the writ of habeas corpus. And yet President Abraham Lincoln during the
Civil War, and President Roosevelt during the Second World War, without express constitutional
or statutory authority, created agencies and offices and appropriated public funds therefor in
connection with the prosecution of the war. Nobody raised a finger to oppose the same. In the
case of President Roosevelt, the theater of war was not in the United States. It was thousands
of miles away, in the continents of Europe and Africa and in the Far East. In the Philippines,
military engagements between the government forces and the rebels and secessionists are
going on, emphasizing the immediacy of the peril to the safety of the Republic itself. There is
therefore greater reason to affirm this law-making authority in favor of the incumbent President
during the period of Martial Law.
Petitioners further argue that the President should call the interim National Assembly as
required of him by Section 3(1) of Article XVII, which National Assembly alone can exercise
legislative powers during the period of transition.
It should be stressed that there is a distinction between the existence of the interim Assembly
and its organization as well as its functioning. The interim Assembly already existed from the
time the new Constitution was ratified; because Section 1 of Article XVII states that "there shall
be an interim National Assembly which shall exist immediately upon the ratification of this
Constitution and shall continue until the members of the regular National Assembly shall have
been elected and shall have assumed office ..." However, it cannot function until it is convened
and thereafter duly organized with the election of its interim speaker and other officials. This
distinction was clearly delineated in the case of Mejia, et. al. vs. Balolong, et. al. where We held
that from the phrase "the City of Dagupan, which is hereby created, ...," Dagupan City came into
existence as a legal entity upon the approval of its Charter; but the date of the organization of
the city government was to be fixed by the President of the Philippines, and necessarily was
subsequent to the approval of its organic law (81 Phil. 486, 490-492).
Petitioners likewise urge that the President should have convened the interim Assembly before
the expiration of his term on December 30, 1973. The Constitutional Convention intended to
leave to the President the determination of the time when he shall initially convene the interim
National Assembly, consistent with the prevailing conditions of peace and order in the country.
This was revealed by no less than Delegate Jose M. Aruego himself, who stated:
109. Convening the interim National Assembly. — The Constitutional Convention could
have fixed the date when the interim National Assembly should convene itself as it did
with respect to the regular National Assembly. There would not have been any need for
any Presidential call as there is none, with respect to the regular National Assembly.
But considering that the country had been already placed under martial law rule the success of
which was conditioned upon the unity not only of planning but also in the execution of plans,
many delegates felt that the incumbent President should be given the discretion to decide when
the interim National Assembly should be convened because he would need its counsel and help
in the administration of the affairs of the country.
And in the event that it should convene, why did the interim National Assembly not fix its tenure,
and state expressly when the election of the members of the regular National Assembly should
be called? Many of the delegates felt that they could not be sure even of the proximate date
when the general conditions of peace and order would make possible orderly elections, ... (The
New Philippine Constitution by Aruego, 1973 Ed., p. 230).
This was also disclosed by Delegate Arturo F. Pacificador, who affirmed:
Under the first paragraph of this section, the incumbent President is mandated to initially
convene theinterim National Assembly.
Note that the word used is "shall" to indicate the mandatory nature of the desire of the
Constitutional Convention that the interim National Assembly shall be convened by the
incumbent President. The Constitutional Convention, however, did not fix any definite time at
which the incumbent President shall initially convene the interim National Assembly. This
decision was deliberate to allow the incumbent President enough latitude of discretion to decide
whether in the light of the emergency situation now prevailing, conditions have already
normalized to permit the convening of the interim National Assembly. (Montejo, The New
Constitution, 1973 Ed., p. 314).
It is thus patent that the President is given the discretion as to when he shall convene the
interim National Assembly after determining whether the conditions warrant the same.
His decision to defer the initial convocation of the interim National Assembly was supported by
the sovereign people at the referendum in January, 1973 when the people voted to postpone
the convening of the interim National Assembly until after at least seven (7) years from the
approval of the new Constitution. And the reason why the same question was eliminated from
the questions to be submitted at the referendum on February 27, 1975, is that even some
members of the Congress and delegates of the Constitutional Convention, who are already ipso
factomembers of the interim National Assembly, are against such inclusion; because the issue
was already decided in the January, 1973 referendum by the sovereign people indicating
thereby their disenchantment with any Assembly as the former Congress failed to institutionalize
the reforms they demanded and had wasted public funds through the endless debates without
relieving the suffering of the general mass of citizenry.
Petitioners likewise impugn the scheduled referendum on the ground that there can be no true
expression of the people's will due to the climate of fear generated by Martial Law and that the
period of free discussion and debate is limited to two weeks from February 7 to 21, without right
of rebuttal from February 22 until the day of the referendum.
The first objection is not tenable because during the senatorial elections in 1951 and 1971, the
privilege of the writ of habeas corpus was suspended, during which period of suspension there
was fear of arrest and detention. Yet the election was so free that a majority of the senatorial
candidates of the opposition party were elected and there was no reprisal against or
harrassment of any voter thereafter. The same thing was true in the referendum of July 27-28,
1973, which was done also through secret ballot. There was no Army, PC, or police truck, bus
or other mode of transportation utilized to transport the voters to the various precincts of the
country. There was no PC, Army or police personnel assigned to each election precinct or
voting booth. And such assignment would be impossible; because the combined membership of
the police, PC, and Army was then as now very much less than the number of precincts, let
alone the number of voting booths. And no one would be left to fight the rebels or to maintain
peace and order. And as heretofore stated, the voting was done in secrecy. Only one voter at a
time entered the voting booth. The voting was orderly. There was no buying of votes or buying
the right not to vote. And as opined by the Solicitor General, every qualified voter who fails to
register or go to the polling place on referendum day is subject to prosecution; but failure to fill
up the ballot is not penalized.
In the Habeas Corpus cases, We declared that the result of the referendum on July 27-28, 1973
was a decision by the sovereign people which cannot be reviewed by this Court. Then again, it
is too late now for petitioners to challenge the validity of said referendum.
Moreover, as stressed by the Solicitor General, the previous referenda of January and July,
1973, were a lot more free than the elections under the Old Society previous to the proclamation
of Martial Law, where the will of the voter was subverted through "guns, goons and gold", as
well as through fraud. All modes of transportation were utilized by the candidates and their
leaders to transport the voters to the precinct. The voters were likewise wined and dined and so
prostituted that they refused to vote until the required monetary persuasion was proffered, if
they were not being subjected to various forms of intimidation. In some areas, the ballots were
filled up and the election returns were accomplished before election day. Even animals and
dead persons voted. The decisions in the electoral contests filed after every election under the
Old Society attest to this very unflattering fact in our history.
The second objection that the two-week period for free debate is too short, is addressed to the
wisdom of the President who may still amend the proclamation to extend the period of free
discussion.
At any rate, such a brief period of discussion has its counterpart in previous plebiscites for
constitutional amendments. 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 Act
of the US Federal Congress to the 1935 Constitution was published in only three consecutive
issues of the Official Gazette for 10 days prior to the scheduled plebiscite (Com. Act No. 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).
The period of 14 days for free discussion can compare favorably with the period required for
publication of the proposed amendments under the Old Society.
WHEREFORE, PRESIDENT FERDINAND E. MARCOS IS HEREBY DECLARED DE JURE
PRESIDENT OF THE REPUBLIC, PRESIDENTIAL PROCLAMATIONS NOS. 1366 AND 1366-
A AND PRESIDENTIAL DECREES NOS. 629,630, 637 AND 637-A ARE HEREBY DECLARED
VALID, AND THE PETITION IS HEREBY DISMISSED. WITHOUT COSTS.
Aquino, J, concurs.
Makatintal, C.J., concurs in the result.
Separate Opinions
CASTRO, J., concurring:
I vote to deny the petition.
At the threshold, and only for the purposes of this separate capsule opinion, I will assume (a)
that this case before us is not in the nature of a quo warranto proceeding; (b) that the petitioners
possess legal standing before the Court; and (c) that all the petitioners, whatever be the
persuasion of their counsel, recognize the Court as the supreme judicial tribunal operating and
functioning under the 1973 Constitution.
I find no particular difficulty in resolving what I regard as the two crucial issues posed by the
petition.
1. On the matter of whether Ferdinand E. Marcos is still the President of the Philippines, the
Transitory Provisions (Art XVII) of the 1973 Constitution, more specifically Secs. 2, 3, 9 and 12
thereof, even if they do not mention him by name, clearly point to and recognize Ferdinand E.
Marcos as the constitutional and lawful President of the Philippines. If there is any doubt at all
— and I do not personally entertain any — that the said Transitory Provisions refer to President
Marcos as the "incumbent President," then such doubt should be considered as having been
completely dissipated by the resounding affirmative vote of the people on this question
propounded in general referendum of July 27-28, 1973: "Under the [1973] Constitution, the
President, if he so desires, can continue in office beyond 1973. Do you want President Marcos
to continue beyond 1973 and finish the reforms he initiated under martial law?"
2. On the matter of whether President Marcos, at the present time, can constitutionally exercise
legislative power, I do not need to postulate that he derives legislative power from the
constraints of a regime of martial law. To my mind, pars. 1 and 2 of See. 3 of the Transitory
Provisions are unequivocal authority for President Marcos to legislate. These paragraphs read:
The incumbent President of the Philippines shall initially convene the interim National Assemble
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 he calls 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, legal, binding,
and effective even after [the] 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.
Stated elsewhere, my reading of these provisions is that they constitute an unmistakable
constitutional warrant for the "incumbent President" (meaning President Marcos) to legislate
(until, at the very earliest, the interim National Assembly shall have been convoked).
The peripheral matter of whether President Marcos should now or soon convene the interim
National Assembly is completely outside the competence of the Supreme Court to resolve, as,
in my view, it is a political question addressed principally, basically, and exclusively to the
President and the Filipino people.
Makalintal, C.J., Barredo, Antonio, Esguerra and Fernandez, JJ., concur.
FERNANDO, J., concurring:
It is a crucial question that is posed by this petition to call a halt to the February 27 referendum
because of alleged constitutional transgressions. It is one fundamental in its essence, and what
is more, impressed with the sense of immediacy to quiet doubts and to minimize uncertainties.
There has been a quick response, hopefully not one given in haste, which is the enemy of
thought. For all the vigor and the learning that characterized the advocacy of Senator Lorenzo M.
Tañada, it did not suffice to elicit a favorable verdict. The petition did not prosper. So it has been
adjudged, and I concur in the result reached. It is given expression in the notable opinion
penned by Justice Makasiar which, on its face, betrays sensitivity to the magnitude and the
grave implications of the serious problems posed. What is more, it has not avoided subsidiary
issues which reach into vital areas of our constitutional system. To the extent that it reiterates
tried and tested doctrines, I am of course in agreement. Certainly, there is not much difficulty for
me in reaching the conclusion that the term "incumbent President" in the Transitory Provisions
means what it says. If I submit this brief concurrence, it is only because of my belief that
notwithstanding the brilliant and illuminating argumentation in depth by both eminent counsel,
raging far and wide in the domain of constitutionalism, there is no need as yet to express my
views on some collateral matters. It suffices for me to rely on a jurical concept that is decisive. It
is the fundamental principle that sovereignty resides in the people with all government authority
emanating from them. 1 It speaks, to recall Cardozo, with a reverberating clang that drowns all
weaker sounds.
1. Respondents would interpose obstacles to avoid a decision on the merits. They are not
insurmountable. They alleged that the questions raised are political and therefore left for the
political sovereign, not the courts. 2 Such an assertion carries overtones of the Tañada v.
Cuenco 3 ruling that a matter to be decided by the people in their sovereign capacity is of such a
character. It has an aura of plausibility but it cannot stand the rigor of analysis. It confuses the
end result with the procedure necessary to bring it about. It is elemental that constitutionalism
implies restraints as well on the process by which lawful and valid state objectives may be
achieved. 4 What is challenged here is the actuation of the incumbent President for alleged
failure to comply with constitutional requisites. It is much too late in the day to assert that a
petition of that character is not appropriate for the courts. This is not to venture into uncharted
judicial territory. There are landmarks all along the way. This is not then to trespass on
forbidden ground. There is no disregard of the political question concept.
3. It follows therefore that the will of the people given expression, even in an unofficial manner
but accurately ascertained, is impressed with a decisive significance. It is more than just a
foundation for societal or political development. Whether appropriate, it determines what is to be
done. Its significance is vital, not merely formal. It is understandable then why in Javellana, 21
one of the issues passed upon by this Court is the effect of acquiescence by the people to
present Constitution even on the assumption that it was ratified in accordance with the 1935
Charter. It may not be amiss to recall what I did state on that point in my separate opinion: "Nor
is the matter before us solely to be determined by the failure to comply with the requirements of
Article XV. Independently of the lack of validity of the ratification of the new Constitution, then
this Court cannot refuse to yield assent to such a political decision of the utmost gravity,
conclusive in its effect. Such a fundamental principle is meaningless if it does not imply, to
follow Laski, that the nation as a whole constitutes the "single center of ultimate reference,"
necessarily the possessor of that "power that is able to resolve disputes by saying the last
word." If the origins of the democratic polity enshrined in the 1935 Constitution with the
declaration that the Philippines is a republican state could be traced back to Athens and to
Rome, it is no doubt true, as McIver pointed out, that only with the recognition of the nation as
the separate political unit in public law is there the juridical recognition of the people composing
it "as the source of political authority." From them, as Corwin did stress, emanate "the highest
possible embodiment of human will," which is supreme and must be obeyed. To avoid any
confusion and in the interest of clarity, it should be expressed in the manner ordained by law.
Even if such were not the case, however, once it is manifested, it is to be accepted as final and
authoritative. The government which is merely an agency to register its commands has no
choice but to submit. Its officials must act accordingly. No agency is exempt from such a duty,
not even this Court. In that sense, the lack of regularity in the method employed to register its
wishes is not fatal in its consequences. Once the fact of acceptance by the people of a new
fundamental law is made evident, the judiciary is left with no choice but to accord it recognition.
The obligation to render it obeisance falls on the courts as well." 22
To such a cardinal jural postulate is traceable my concurring and dissenting opinion in Tolentino
v. Commission on Elections: 23 "It was likewise argued by petitioner that the proposed
amendment is provisional and therefore is not such as was contemplated in this article. I do not
find such contention convincing. The fact that the Constitutional Convention did seek to consult
the wishes of the people by the proposed submission of a tentative amendatory provision is an
argument for its validity. It might be said of course that until impressed with finality, an
amendment is not to be passed upon by the electorate. There is plausibility in such a view. A
literal reading of the Constitution would support it. The spirit that informs it though would not, for
me, be satisfied. From its silence I deduce the inference that there is no repugnancy to the
fundamental law when the Constitutional Convention ascertains the popular will. In that sense,
the Constitution, to follow the phraseology of Thomas Reed Powell, is not silently silent but
silently vocal. What I deem the more important consideration is that while a public official, as an
agent, has to locate his source of authority in either Constitution or statute, the people, as the
principal, can only be limited in the exercise of their sovereign powers by the express terms of
the Constitution. A concept to the contrary would to my way of thinking be inconsistent with the
fundamental principle that it is in the people, and the people alone, that sovereignty resides." 24
As it was then, so, to my way of thinking, should it be now. With such a decisive consideration in
mind, it is difficult to conclude that the infirmities imputed to the challenged Presidential decrees
are fatal. They do not suffer from the corrosion of substantial constitutional infractions. It is in
that sense that I do not feel called upon to inquire into the nature of the authority conferred on
the incumbent President under the Transitory Provisions, whether purely executive as
contended by petitioners or both executive and legislative as argued by respondents. I leave
that question for another day. What cannot be ignored is that with a National Assembly in
existence but not convened, it is only the Executive that can perform those essential and
indispensable functions of dealing with the actual conduct of public affairs. That is the reality
that stares us in the face. To deny his power to issue decrees and to appropriate public funds is
thus to assure the paralyzation and impotence of government. Precisely then, if a referendum
may lend itself to a reappraisal of the situation, by all means let it be conducted. This is not to
deny that the judicial power to call a halt exists. It is merely to stress that it should be exercised
with the utmost reluctance as is required by deference to the concept of popular sovereignty. To
be more specific about the matter, this Tribunal should refrain from making use of that
prerogative now.
Parenthetically, it may be observed that in 1973 when the Javellana decision was promulgated,
I could not detect sufficient evidence as to the fact of acquiescence to the present Constitution.
That was why I had to dissent from the judgment of the Court dismissing the various petitions
assailing the validity of Proclamation No. 1102. Since then, with well-nigh two years having
gone by, it is quite evident that the matter is no longer open to doubt. Under the standard set
forth in the leading case of Taylor v. Commonwealth, 25 decided at the beginning of the century,
no other conclusion is allowable. The present Constitution "having been thus acknowledged and
accepted by the officers administering the government and by the people ... and being, as a
matter of fact, in force throughout ..., and there being no government in existence ... opposing or
denying its validity, [it] is the only rightful, valid, and existing Constitution ... and that to it all the
citizens ... owe their obedience and loyal allegiance." 26
5. That is about all. In writing this brief concurrence, I had nothing in mind but to explain why I
had to vote the way I did. It is quite obvious that for me the old landmarks of the law are still
there to serve as guides, that precedents do serve as factors for continuity and stability not to be
ignored but also not to be slavishly obeyed. For in constitutional law more than in any other
branch of juristic science, much depends on the immediacy and the reality of the specific
problems to be faced. Hence it has been truly said in days of crisis or of emergency, to stand
still is to lose ground. Nonetheless, one has always to reckon with the imponderables and the
intangibles, ever so often elusive to our understanding and disheartening to our deeply-
cherished convictions. For he has no choice but to comply as best he can with the duty to
decide in accordance with legal norms with roots that go far deeper than his personal
preferences and predilections. So it has to be.
BARREDO, J., concurring:
I concur in the judgment dismissing the petition. The following opinion is without prejudice to a
more extended one in due time.
Consistently with my opinion in the habeas corpus or martial law cases, the Court has
jurisdiction over the instant petition even if, as will be shown later, the matter of calling a
referendum is by nature a political matter. Anent the possible contention that the title of
President Marcos as President of the Philippines may not be collaterally attacked and that the
proper remedy is quo warranto, under the authority of Nacionalista Party vs. Felix Angelo
Bautista, 85 Phil. 101, I concede that the remedy of prohibition is not altogether improper.
The first ground of the petition is that President Marcos does not have any legal authority to call
the referendum because he is not holding any public office. The specific arguments supporting
this contention are that (1) Marcos is no longer President under the 1935 Constitution; (2) he is
not President nor Prime Minister under the 1973 Constitution; (3) he is not the "incumbent
President" contemplated in the transitory provisions of the new constitution; and, in any event,
his transitory powers as "incumbent President" have already lapsed. The second and third
grounds are that President Marcos does not have any power to legislate nor the authority to
issue proclamations, decrees and orders having the force of law, hence he cannot issue
decrees appropriating funds and, therefore, the decree calling for the referendum is void.
It is my considered conviction that these grounds are untenable.
President Marcos' authority to continue exercising the powers of the President under the 1935
Constitution and to exercise those of President and Prime Minister under the 1973 Constitution
is specifically provided for in Sec. 31 Article XVII of the 1973 Constitution. It is to me
unquestionable that by virtue of these provisions, President Marcos' being the President of the
Philippines, is constitutionally indubitable.
It was precisely because upon the effectivity of the New Constitution President Marcos would
cease to be President under the 1935 Charter and would not then be occupying any office
under the New Constitution, and, on the other hand, there would yet be no new president and
no prime minister, that he, as "incumbent President" at that time had to be expressly granted the
authority to exercise the powers of the President under the Old Constitution as well as those of
the President and the Prime Minister under the new one, pending the election of these officers.
Necessarily, there had to be a head of government until the new parliamentary system could be
properly installed, and whether or not it would have been wiser to confer the powers in question
on some other official or body is not for the Court to decide. In the meantime, the title of
President is the most appropriate to be held by him.
The contention that President Marcos may not be considered the "incumbent President"
referred to in the Constitution because what is contemplated therein is the one who would be in
office at the time of its ratification and that pursuant to the Javellana decision of the Supreme
Court, the constitution has not yet been ratified, whereas, on the other hand, the term of
President Marcos under the 1935 Constitution expired on December 30, 1973, is predicated
wholly on the old theory advanced in the habeas corpus cases and which has already been
discarded in the opinions therein, although perhaps, it is best that the Court made a categorical
ruling which would clear all doubts on the matter and thereby do away with this issue once and
for all. To that end, I would say that as far as the Court is concerned, its holding in Javellana
that "there is no more judicial obstacle to the New Constitution being considered as in force and
effect" should be understood as meaning that the charter is as valid and binding for all purposes
as if it had been ratified strictly in accordance with the 1935 Constitution as petitioners would
argue it should have been.
The problem of constitutional construction raised in the petition is, does the Constitution
contemplate that the interim assembly created by it would meet immediately and forthwith elect
the new President and the Prime Minister? If this question were to be answered in the light of
normal conditions, there could be some plausibility in suggesting an affirmative response, albeit
not altogether conclusive. But no one can ever escape the fact that the Constitution was
formulated and approved under abnormal and exceptional circumstances. The members of the
convention were well cognizant of the fact that the country was then as it still is under martial
law and that normal processes of government have not been in operation since its proclamation.
We must assume that as practical men they knew that the procedure of shifting from the
presidential to the parliamentary system would have to be reconciled with the demands of the
martial law situation then obtaining. Above all it must have been obvious to the delegates that
under martial law, President Marcos had in fact assumed all the powers of government. In other
words, it must have been evident to them from what was happening that the immediate
convening of the legislative body would not be compatible with the way President Marcos was
exercising martial law powers.
It is but proper, therefore, that these transcendental historical facts be taken into account in
construing the constitutional provisions pertinent to the issue under discussion. As I see it, given
the choice between, on the one hand, delaying the approval of a new charter until after martial
law shall have been lifted and, on the other, immediately enacting one which would have to give
due allowances to the exercise of martial law powers in the manner being done by President
Marcos, the convention opted for the latter. To my mind, it is only from this point of view that one
should read and try to understand the peculiar and unusual features of the transitory provisions
of the New Constitution.
Otherwise, how can one explain why, instead of giving the interim Assembly itself the power to
convene motu propioas was being done in the regular sessions of the old legislature and as in
the case of the regular National Assembly provided therein, said power has been granted by the
Constitution to the incumbent President? Very significantly in this connection, whereas Section
1 of Article XVII very explicitly uses the word "immediately" in reference to the existence of the
interim Assembly, there is no time fixed as to when the incumbent President should initially
convene it. Withal, even the authority to call for the election of the new President and the Prime
Minister was not lodged in the assembly but again in the incumbent President. Is it not logical to
conclude that the reason behind all these unprecedented provisions is to avoid putting any
hindrance or obstacle to the continued exercise by President Marcos of the powers he had
assumed under his martial law proclamation and his general orders subsequent thereto? If the
Convention were differently minded, it could have easily so worded the said provisions in the
most unequivocal manner. And what makes this conclusion definite is precisely the insertion in
the transitory provisions of Section 3(2) of Article XVII which makes all the proclamations,
decrees, orders and instructions of the incumbent President part of the law of the land, which, in
my considered view, is the Convention's own contemporary construction that during martial law,
the administrator thereof must of necessity exercise legislative powers particularly those needed
to carry out the objectives of the proclamation, with no evident limitation except that no
particular legislation not demanded by said objectives shall infringe Section 7 of Article XVII
which reserves to the regular National Assembly the power to amend, modify or repeal "all
existing laws not inconsistent with this Constitution." Neither paragraph (1) nor paragraph (2) of
Section 3 of the same article would have been necessary if the convention had intended that the
interim National Assembly would be immediately convened and the new President and the
Prime Minister would be forthwith elected. Indeed, it is implicit in the provisions just mentioned
that the delegates had in mind that there would be a considerable time gap between the going
into effect of the New Constitution and the election of the new President and the Prime Minister.
And they could not have been thinking merely of the possibility of protracted delay in the
election of said officers because the Assembly itself, once convened, could have readily
provided in the exercise of its inherent powers for what might be required in such a contingency.
In support of the foregoing views, I invoke the testimonies of Delegates Aruego, Tupaz, Ortiz,
Pacificador and others which were quoted during the hearing and the deliberations. I will quote
them in my extended opinion.
It must be borne in mind that once martial law is proclaimed, all the powers of government are
of necessity assumed by the authority that administers the martial law and the operation of the
regular government, including its legislature and its judiciary, is subjected to its imperatives. Of
course, the Constitution itself is not ousted, but by the power that the Constitution itself vests in
the Executive to issue the proclamation, it yields the application and effects of some of its
provisions to the demands of the situation, as the administrator may in his bona fide judgment
so determine. Otherwise stated, since laws and regulations would be needed to maintain the
government and to provide for the safety and security of the people, the orders of the
administrator are given the force of law. In that sense, the administrator legislates. If he can
legislate, so also he can appropriate public funds.
To my mind, these postulates underlie the provisions of Sec. 3(2) of Article XVII. To reiterate,
the said provision recognizes legislative power in the incumbent President and the scope of said
powers is coextensive with what might be needed, primarily according to his judgment, to
achieve the ends of his martial law proclamation, and in all other respects, they are limited only
by the provisions of Sec. 7 of the same article, but, evidently, even this limitation must be
reconciled with the fundamental criterion that the New Constitution was conceived, formulated
and enacted with the basic objective of establishing the New Society for which martial law was
proclaimed. In other words, since the known broad objective of Proclamation 1081 is not only to
contain or suppress the rebellion but also to reform our society and recognize and restructure
our government and its institutions as the indispensable means of preventing the resurgence of
the causes of the rebellion, it is obvious that any decree promulgated by the President in line
with these purposes, including those appropriating the necessary funds therefor, cannot be
assailed as beyond the pale of the Constitution.
There is nothing in the letter of the Constitution concerning referendums. But it would be absurd
to think that such paucity may be deemed to indicate that the government has no authority to
call one. If there is anything readily patent in the Constitution, it is that it has been ordained to
secure to the people the blessings of democracy and that its primordial declared principle is that
"sovereignty resides in the people and all government authority emanates from them." Of
course, it establishes a representative democracy, but surely, there is and there could be no
prohibition in it against any practice or action that would make our government approximate as
much as possible a direct one, which is the ideal. On the contrary, it is self-evident that
conditions and resources of the country permitting, any move along such a direction should be
welcome. In fact, at this time when there are fears about what some consider as an emerging
dictatorship, referendums in the manner contemplated in the impugned presidential decrees
provide the means for the most vigorous assertion by the people of their sovereignty, what with
the participation therein of even the fifteen-year olds and non-literates and the concrete efforts
being exerted to insure the most adequate submission and the utmost freedom of debate and
consensus as the emergency situation would permit and to have the fairest recording and
tabulation of the votes. Granting the good faith of everyone concerned, and there is absolutely
no reason why it should be otherwise, a unique exercise of essential democratic rights may be
expected, unorthodox as the experience may be to those who cannot understand or who refuse
to understand martial law Philippine style. In principle, to oppose the holding of a referendum
under these circumstances could yet be a disservice to the nation.
A plebiscite or election of officials prescribed by the Constitution for specific occasions must be
distinguished from a referendum, which is an inherent constitutional democratic institution,
perhaps not normally convenient to hold frequently or regularly, but which in certain periods in
the life of the nation may be indispensable to its integrity and preservation. The administration of
martial law is usually considered as nothing more than submission to the will of its administrator.
Certainly, there can be no objection to said administrator's holding a dialogue with the people
and adopting ways and means of governing with their full acquiescence manifested in whatever
happens to be the most feasible way of doing it. If it be assumed that a referendum under the
aegis of martial law may not be an ideal gauge of the genuine will of all the people, no one
would deny that if it is undertaken in good faith, and giving allowances to the imperatives of the
situation, it can somehow reflect their sentiment on the grave issues posed. Besides, whether or
not the people will enjoy sufficient and adequate freedom when they cast their votes in the
challenged referendum is a question that is unfair to all concerned to determine a priori and
beforehand. In any event, it is history alone that can pass judgment on any given referendum.
Upon the other hand, whether a referendum should be called or not and what questions should
be asked therein are purely political matters as to which it does not appear to be proper and
warranted for the Court to exert its judicial power in the premises. To be sure, the referendum in
question could be a waste of the people's money in the eyes of some concerned citizens, while
it may be a necessary and fruitful democratic exercise in the view of others, but what is certain
is that considering its nature and declared purposes and the public benefits to be derived from it,
it is the better part of discretion, granted to it by the Constitution for the Court to refrain from
interfering with the decision of the President.
The claim that the Comelec may not be considered as the independent and impartial guardian
of the results of the scheduled referendum has no basis in fact. From extant circumstances, the
recent activities of that body have not been characterized by any perceptible design to influence
such results in any direction. Referendums being, as they are, in the Philippines today, in the
nature of extra-constitutional innovations, it seems but natural and logical at this stage that the
Comelec has been assigned to undertake the functions of formulating the questions, which,
after all has been done after a more or less nationwide gathering of opinions, and of
subsequently explaining them to the people to best enable them to vote intelligently and freely.
I see no cause to be apprehensive about the fate of those who might wish to vote "no." To start
with, the voting will be secret and is guaranteed to be so. And when I consider that even a
strongly worded petition to enjoin the referendum has been openly ventilated before the
Supreme Court with full mass media coverage giving due emphasis to the points vehemently
and vigorously argued by Senator Tañada, who did not appear to be inhibited in the expression
of his views, I cannot but be confirmed in the conviction that the apprehensions of petitioners
are unfounded.
Under the New Constitution, every citizen is charged with the duty to vote. To vote in a
referendum is no less a sacred civic obligation than to vote in an election of officials or in a
plebiscite. The impugned decrees cannot therefore be constitutionally faulted just because they
provide penalties for those who fail to comply with their duty prescribed in no uncertain terms by
the fundamental law of the land.
Makalintal, C.J., Antonio, Esguerra and Fernandez, JJ., concur.
ANTONIO, J., concurring:
I
The only rational way to ascertain the meaning and intent of paragraphs 1 and 2 of Section 3 of
Article XVII (transitory provisions) of the New Constitution is to read its language in connection
with the known conditions of affairs out of which the occasion for its adoption had arisen, and
then construe it, if there be any doubtful expression, not in a narrow or technical sense, but
liberally, giving effect to the whole Constitution, in order that it may accomplish the objects of its
establishment. For these provisions can never be isolated from the context of its economic,
political and social environment.
The New Constitution was framed and adopted at a time of national emergency. The delegates
to the Constitutional Convention realized that the rebellion, lawlessness and near anarchy that
brought about the declaration of martial law, were mere symptoms of a serious malady in the
social order. They knew that the revolutionary reforms made by the incumbent President thru
his decrees, orders and letters of instruction, such as the emancipation of the tenant-farmer
from his bondage to the soil, reorganization of government, eradication of graft and corruption
and measures to bridge the gap between the rich and the poor, were indeed imperative, if the
exigency that brought about the military necessity was to be overcome, civil order restored, and
the foundations of genuine democracy established. The actions of the incumbent President in
promulgating those measures legislative in character during martial law was not without legal
and historical basis. Democratic political theorists traditionally have assumed the need in time of
emergency to disregard for the time being the governmental process prescribed for peacetime
and to rely upon a generically different method of government — the exercise by the Chief
Executive of extraordinary or authoritarian powers, to preserve the State and the permanent
freedom of its citizens. 1
Thus, in my concurring opinion in Javellana, et al. v. Executive Secretary, et al., 2 it was stated
that "to preserve the independence of the State, the maintenance of the existing constitutional
order and the defense of the political and social liberties of the people, in times of grave
emergency, when the legislative branch of the government is unable to function or its
functioning would itself threaten the public safety, the Chief Executive may promulgate
measures legislative in character, ...". We considered then that the proclamation of martial rule
marked the commencement of a crisis government and crisis government in a constitutional
democracy entails the concentration and expansion of governmental power and the release of
the government from the paralysis of constitutional restraints in order to deal effectively with the
emergency. 3 This was the view of the members of the Constitutional Convention when they
framed the New Constitution.
In Our concurring opinions in Aquino, et al. v. Enrile et al., 4 We declared that on the basis of the
deliberations of the 166-man Special Committee of the Constitutional Convention, which was
authorized to make the final draft of the Constitution, during their session on October 24, 1972,
the Convention expressly recognized the authority of the incumbent President during martial law
to exercise legislative powers not merely in the enactment of measures to quell the rebellion but,
more important, of measures urgently required to extirpate the root causes of the social disorder
which gave rise to the exigency.
In was with a view of the continuance of the exercise of these extraordinary powers that the
Convention provided in paragraph 1, Section 3, of Article XVII of the transitory provisions of the
New Constitution that: "He (the incumbent President) shall continue to exercise his powers and
prerogatives under the nineteen hundred thirty-five Constitution ..." and in paragraph 2 thereof
also provided that: "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, legal, binding and effective even after lifting of martial law or 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."
The conferment upon the incumbent President of those extraordinary powers necessarily
implies that in view of the emergency, there might be a deferment in the convening of the
interim National Assembly and, therefore, it was necessary that he be equipped with adequate
legal authority and power to carry the body politic through the crisis.
Indeed, the need of the times was for a more expeditious mode of decision-making and policy
formulation. The insurgency and the secessionist movement compounded by a world-wide
economic inflation and recession generated problems which must be solved with immediacy
and with policies that are flexible and responsive to the imperatives of the crisis.
II
The impossibility for the Convention to determine a priori, in view of the emergency situation,
the time when conditions shall have sufficiently normalized to permit the convening of the
interim Assembly, precluded them from fixing in the transitory provisions of the Constitution a
definite period when the incumbent President shall initially convene that body. It was a matter
which was wholly confided by the Constitution to the incumbent President. Since the exercise of
this power was committed to the incumbent President in all the vicissitudes and conditions of
the emergency, it has necessarily given him ample scope for the exercise of his judgment and
discretion. It was a political decision for which he is directly responsible to the people to whom
he is accountable and for whose welfare he is obliged to act. As stated in the separate opinion
of Justice Castro, concurred in by the Chief Justice, Justices Barredo, Esguerra, Fernandez and
the writer of this opinion, "The peripheral matter whether President Marcos should now or soon
convene the interim National Assembly is completely outside the competence of the Supreme
Court to resolve as ... it is a political question addressed principally, basically, and exclusively to
the President and the Filipino people."
III
Neither can it be asserted that the exercise by the incumbent President of those extraordinary
powers is necessarily inconsistent with and an absolute contradiction to the existence of a
democracy. 5 When the exercise of such authoritarian powers is expressly conferred upon him
by the Constitution, it represents the will of the sovereign people as the source of all political
power. So long as the power is used to fulfill its true function in realizing the ethical purposes of
the community, which is to ensure the economic and social well-being of its citizens and to
secure to them justice, such power is employed for constructive and moral purposes. Its
exercise is, therefore, legitimate as it represents the collective will of the people themselves. It is,
therefore, logical that the incumbent President consult the people on issues vital to the public
interest even through a consultative referendum. Such useful and healthy contact between the
government administrator and the citizenry is the more necessary in a period of martial law,
because the equal participation of the citizenry in the formulation of the will of the State and in
its fundamental political decisions ensures the unity of the people in their efforts to surmount the
crisis. The success then of the political leadership in leading the nation through the emergency
would depend on its ability to convince and persuade, not to dictate and coerce; to enlist, not to
command; to arouse and muster the energies, loyalties, and, if need be, the sacrifices of the
people. As Leibholz aptly observed, "the one essential presupposition of democracy is that the
people as a political unity retains its sovereignty, and that the majority of the active citizens can
express their will in political freedom and equality." 6
IV
It is, however, asserted that the questions asked may not logically be the subject of a
referendum. Thus, it is claimed that some of the questions contemplate vital changes in the
existing form of local government, which changes, under Sections 2 and 3 of Article XI of the
1973 Constitution, must be submitted to the electorate for ratification in a plebiscite called for
that purpose. Admittedly, the question of the coming referendum asked the voters in the Greater
Manila Area, do not contain a full text of the law proposed for the ratification or rejection by the
people. It is, therefore, not a plebiscite contemplated by the aforecited Sections 2 and 3 of
Article XI of the New Constitution but merely a referendum, advisory or consultative in character.
Political democracy is essentially a government of consensus. The citizen has "a right and a
duty to judge his own concerns, his acts and their effects, as they bear on the common good. If
they entail the common acts of the community, he again has the duty and right to contribute to
the common deliberation by which the acts of the community are decided." 7 Common
deliberation or mutual persuasion occurs on all levels of society, and as a result thereof a
common judgment or consensus is formed on those matters which affect the democratic polity.
This is based on the premise that sovereignty in a political democracy resides in the people and
that, their government is founded on their consent. It is in the formulation of this consensus
whether in an election, plebiscite, direct legislation or advisory referendum or consultation, that
the political community manifests its consent or dissent. The national leadership as the elected
representative of the national community has the duty to be responsive and responsible to this
sovereign will. It has been said that the President "speaks and acts as the people's agent. He
lays claim to a mandate from them for his acts. Authority descends upon him from the nation,
not from the other organs of government." 8 In his dual role as Chief Executive and Legislator
under martial law, the incumbent President has, therefore, a greater degree of accountability to
the political community. To discharge effectively that responsibility, he has to ascertain the
people's consensus or common judgment and to act in accordance therewith. Only then can it
be said that his actions represent the people's collective judgment and, therefore, entitled to
their whole-hearted support. The coming referendum is a national undertaking affecting the
future of the country and the people. It, therefore, requires the involvement of every Filipino. By
participating in the national consultation or advisory referendum of February 27, 1975, the
Filipino people will prove to the rest of the world their maturity and capability as a people to
make major decisions.
V
It is nevertheless asserted that a referendum held under present existing circumstances is of no
far-reaching significance because it is being undertaken in a climate of fear. The infirmity of
such a priori judgment is evident from the fact that it is not based on reality. It betrays a lack of
awareness of the strength and character of our people. It is contradicted by past experience.
There has been a deliberate policy to lift gradually the strictures on freedom attendant to a
regime of martial law. Thus, State restrictions on press freedom had been removed, except over
publications which, because of their subversive or seditious character, are deemed incompatible
with the public safety. Freedom of discussion and of assembly are now encouraged. No less
than the incumbent President of the Philippines has underscored the need for an accurate and
honest canvass of the people's sentiments. As the nation's leader, he is called upon to make
bold decisions in the face of the grave problems confronting the nation, but he is convinced that
such decisions cannot be effective unless rooted in the will and reflective of the true sentiments
of the sovereign people.
Given the determination of the incumbent President to ascertain the true sentiments of the
people, and considering the measures instituted by the Commission on Elections to safeguard
the purity of the ballot, there appears, therefore, no basis for petitioners' apprehension that the
forthcoming referendum will not reflect the people's untrammeled judgment.
The foregoing opinion contains in brief the reasons for my concurrence with the main opinion
and the separate opinions of Justices Castro and Barredo.
FERNANDEZ, J., concurring:
The present case calls for an interpretation of the New Constitution, particularly its Transitory
Provisions. Privileged as I was to be a member of the Constitutional Convention that drafted the
Constitution, I feel it my duty to write this concurring opinion in the hope that I may be able to
shed light, even if only modestly, on the fundamental questions involved in this case, on the
basis of what I personally know and in the light of the records of the Convention, to show the
understanding and intention of the Delegates when they discussed and voted on the
constitutional provisions involved in this case.
The pertinent provisions of the New Constitution upon which the parties in this case base their
respective claims are:
ARTICLE XVII
TRANSITORY PROVISIONS
SECTION 1. There shall be an interim National Assembly which shall exist immediately
upon the ratification of this Constitution and shall continue until the Members of the
regular National Assembly shall have been elected and shall have assumed office
following an election called for the purpose by the interim National Assembly. Except as
otherwise provided in this Constitution, the interim National Assembly shall have the
same powers and its Members shall have the same functions, responsibilities, rights,
privileges, and disqualifications as the regular National Assembly and the Members
thereof.
Sec. 2. The Members of the interim National Assembly shall be the incumbent President and
Vice-President of the Philippines, those who served as President of the Nineteen hundred and
seventy-one Constitutional Convention, those Members of the Senate and the House of
Representatives who shall express in writing to the Commission on Elections within thirty days
after the ratification of this Constitution their option to serve therein, and those Delegates to the
nineteen hundred and seventy-one Constitutional Convention who have opted to serve therein
by voting affirmatively for this Article. They may take their oath of office before any officer
authorized to administer oath and qualify thereto, after the ratification of this Constitution.
Sec. 3. (1) 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 he calls upon the interim National Assembly to elect the interim President and
the interim Prime Minister, who shall then exercise their respective powers vested by this
Constitution.
(2) 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, legal,
binding, and effective even after lifting of martial law or the ratification of this Constitution,
unless modified, revoked, or superseded by subsequent promulgations, orders, decrees,
instructions, or other acts of the incumbent President, or unless expressly and explicitly modified
or repealed by the regular National Assembly.
xxx xxx xxx
The discussion on these Transitory Provisions in the plenary session 1 of the Constitutional
Convention on October 18, 19 and 20, 1972 2 and the votes thereon clearly show:
1. That the determination of the date the interim National Assembly should be convened was left
to the judgment of the President, the country being, as it still is, under martial law;
2. That the incumbent President legally holds office as such having been authorized to continue
in office and to exercise not only the powers of the President under the 1935 Constitution but
also those of the President and Prime Minister under the 1973 Constitution, from the time the
New Constitution was ratified on January 17, 1973 until the election of the interim President and
interim Prime Minister which up to now has not yet taken place; and
3. That included in the powers of the President under the 1935 Constitution and the powers of
the Prime Minister under the 1973 Constitution is the power to declare martial law which in turn
includes the power to make all needful rules and regulations with the force and effect of law until
the termination of the martial rule.
The minutes of the plenary session of the Convention of October 18, 1972 contain the
sponsorship speech of Delegate Yaneza, Chairman of the Committee on Transitory Provisions.
He described the proposed interimgovernment as a practical response to our abnormal
conditions presently obtaining in the country. He explained that in order to effectively implement
reform measures under the New Constitution, the nation should be relieved of the burden of
political and national elections during the transitory period. The proposed interim National
Assembly should therefore be composed of present elective government officials, together with
members of the Convention who would vote for its creation and who could be of great help, in
view of their familiarity with the provisions of the New Constitution, in the enactment of reform
measures to be approved by the interim National Assembly pursuant to the mandates of the
New Constitution. Delegate Yaneza was interpellated by Delegates Suarez, Tupaz (A), Jamir,
Ledesma (F), Alano, Sanchez, Molina, Siguion Reyna, Pimentel, Laurel, Encarnacion,
Pacificador, Ordoñez, Teves, Gonzales, and his co-sponsor, Delegate Abundo.
The following exchange took place between Delegate Pimentel and Delegate Yaneza.
DELEGATE PIMENTEL (V): Thank you, Mr. Chairman. Now Section 3 has been
repeatedly the basis of certain questions. It says: "the incumbent President of the
Philippines shall initially convene." Will it not be better if we state here, "shall
immediately convene? Or we should provide a certain number of days or months
perhaps after the ratification of the Constitution when the President shall initially convene
thead interim Assembly?
DELEGATE YANEZA: Yes, Your Honor, we can. We see your point and we have discussed that
in the Committee lengthily, but we arrived at a decision to give our President flexibility regarding
this particular matter, Your honor. And we feel that we have decided this matter with some
wisdom and with consideration of the present situation obtaining in our country. (Emphasis
supplied)
The minutes of the plenary session of the Convention of October 19, 1972 show, among others,
the following:
Delegate Reyes (J) inquired whether the incumbent President of the Republic would be at the
same time President and the Prime Minister under the interim Government. Delegate Yaneza
answered affirmatively, adding that the President would actually have a triple personality since
he would exercise powers under the two Constitutions.
Delegate Garcia (L.M.) asked whether the interim Assembly could convene without the approval
of the President, to which Delegate Britanico (a co-sponsor) replied in the negative.
Delegate Barrera (former Supreme Court Justice) was the first to speak against the approval of
Sections 1, 2 and 3 of the Transitory Provisions. He was interpellated by Delegates Lim, Laggui
and Raquiza. He was followed by Delegate Teves who also spoke against the Transitory
Provisions in question. Teves was interpellated by Delegates Purisima, Adil, and Siguion Reyna.
Delegate David (J) was the next opposition speaker. He was in turn interpellated by Delegate
Tupaz (A.).
On October 20, 1972, Delegate Concordia continued the opposition against the Transitory
Provisions, followed by Delegate Garcia (L.M.) who was interpellated by Delegates Bersola
Catan and Leido.
The chair then declared the period of rebuttal open and recognized Delegate Cuaderno as first
speaker. Cuaderno said that he favored the article on the interim Government mainly because
of the benefits of martial law.
Delegate Mutuc was the next rebuttal speaker. He confined his speech to the ratification of all
proclamations, orders, decrees, instructions and acts proclaimed, issued or done by the present
administration under martial law, contending that only the sovereign people could pass
judgment with finality on the same.
Delegate Fernandez followed. And the last rebuttal speaker was Delegate Serrano who
maintained that the interimNational Assembly was a necessity, to fill the vacuum of
constitutional processes that could arise should the President continue in office beyond his
tenure so that he could see the fruition of his efforts to restore normalcy in the country.
The strongest attack on the Transitory Provisions was delivered by Delegate Jesus Barrera of
Rizal, a former Justice of the Supreme Court. This was rebutted by Delegate Estanislao A.
Fernandez of Laguna (now a humble member of this Court). Both speeches covered all the
principal points.
Modesty aside, we now beg to summarize their arguments, as follows:
Delegate Barrera: It is immoral for us to vote Yes, because that would be practically
electing ourselves as members of the interim National Assembly when we were elected
by the people only for the purpose of writing a Constitution.
Delegate Fernandez: True, when we were elected, our mandate from the people was only to
write a new Constitution. But then there was no martial law yet. With martial law, there arose a
need for aninterim Government, specifically, an interim National Assembly. No one has
previously received any mandate from our people on who should be members of this interim
National Assembly. No one can say as of now whether it is immoral, and even moral, for us to
vote Yes. For my part, I will vote Yes because if I vote No, I would foreclose my right to become
a member of this interim National Assembly. I will vote Yes. Afterwards I will consult with the
people of the second district of Laguna on this matter. If they say "Fernandez, you committed an
error", then I will not take my oath. However, if they say "Fernandez, you did well so that we can
have an additional representative in the interim National Assembly," then I will take my oath. By
that time, I think nobody can say it was immoral for me to have voted Yes. But what is most
important is whether or not the members of the interim National Assembly succeed in the
discharge of their duties and responsibilities. If they fail, then our people and history will
condemn them. If they succeed, our people and history may commend them.
Delegate Barrera: As long as the interim National Assembly does not call for the election of the
regular members of the National Assembly, the members of this interim Assembly will continue
in office. For how long, it is not determined. In view of the high salary of the members of the
National Assembly (P60,000.00 a year), there will be a temptation for them not to call for the
election of the members of the regular National Assembly, for a long, long time.
Delegate Fernandez: I disagree. We must grant that the members of the interim National
Assembly would be possessed with a sense of decency and patriotism that would make them
realize the impropriety of overstaying in office. And the people will always be there to
demonstrate thru the media and the streets to compel the interim National Assembly to call for a
regular election.
Delegate Barrera: But it is wishful thinking on the part of the members of the convention to vote
Yes and thereby become members of the interim National Assembly because the President
may unduly delay the lifting of martial law and the calling of the National Assembly into a
session. Then he will be President for life.
Delegate Fernandez: What is the premise of the conclusion of the Delegate from Rizal that the
President will unduly delay the lifting of martial Law and the calling of the interim Assembly into
a session? Nothing. For my part, I wish to advance a premise. If it is valid, the conclusion will be
valid. I believe President Marcos will want to go down in history as a good President. If this
premise is good and I believe it is, then he will not abuse. He will lift martial law and convene the
interim National Assembly at the proper time. He will not be President for life.
Delegate Abundo then said that the committee had accepted the following amendment: "(b) the
Mariño amendment to Section 2 concerning "those members of both the Senate and House of
Representatives to express in writing to the Commission on Elections their option to sit in the
assembly within 30 days after the ratification of the Constitution, etc." There being no objection,
the above amendment was approved.
Delegate Yuzon proposed to fix the date of the election of the members of the regular Assembly
to "not later than May, 1976." Delegate Renulla proposed 1977 instead. Delegate Yuson
accepted the amendment, but when submitted to a vote, the amendment was lost. Other
amendments were proposed and were lost.
Delegate Pacificador moved to suspend the rules so that voting on the draft Transitory
Provisions could be considered as voting on second and third reading and proposed that absent
delegates be allowed to cast their votes in writing and deliver them to the Committee on
Credentials within 72 hours from that day.
The voting followed and the chair announced that by a vote of 274 in favor and 14 against the
draft Transitory Provisions were approved on second and third reading. And among the
delegates that voted affirmatively in favor of these Transitory Provisions whose interpretation is
now the subject of the present case, were: Delegate Alonto (former Senator from Lanao),
Delegate Aruego (the well-known author on the framing of the Constitution), Delegate Baradi
(former Ambassador), Delegate Borra (former COMELEC Chairman), Delegate Cuaderno
(Member of the first Constitutional Convention and Economist who recently passed away),
Delegate De las Alas (former Speaker of the House of Representatives), Delegate Laurel (who
was President Protempore of the Convention), Delegate Feliciano Ledesma (Dean of the
College of Law of San Beda), Delegate Oscar Ledesma (former Senator), Delegate Leido
(former Congressman and Secretary of Finance), Delegate Liwag (former Secretary of Justice
and Senator), Delegate Marino (former Executive Secretary and Secretary of Justice), Delegate
Mutuc (former Executive Secretary and Ambassador), Delegate Father Pacifico Ortiz, Delegate
Ceferino Padua (lawyer of former Senator Sergio Osmeña, Jr.), Delegate Jose Ma. Paredes
(former Justice of the Supreme Court), Delegate Godofredo Ramos (veteran legislator),
Delegate Sinco (former UP President and an authority on Constitutional Law), Delegate Serrano
(former Secretary of Foreign Affairs), Delegate Sumulong (former Congressman), Delegate
Sinsuat (former Member of the Cabinet), Delegate Domingo Veloso (former Speaker
Protempore of the House of Representatives), Delegate Concordia(former Congressman), and
Delegate Fernandez.
The foregoing, in our humble opinion, clearly show:
a) That when the Delegates to the Constitutional Convention voted on the Transitory Provisions,
they were aware of the fact that under the same, the incumbent President was given the
discretion as to when he could convene theinterim National Assembly; it was so stated plainly
by the sponsor, Delegate Yaneza; as a matter of fact, the proposal that it be convened
"immediately", made by Delegate Pimentel (V), was rejected; and
b) That the incumbent President, or President Marcos to be more specific, was to continue in
the office as President with triple powers, upon and even after the ratification of the New
Constitution (January 17, 1973), and until the election of the interim President and interim Prime
Minister (which has not taken place even up to now), and even after December 30, 1973 when
the term of office of the incumbent President would have expired under the 1935 Constitution.
Hence, the incumbent President continued and continues to be the constitutional and therefore
de jurePresident of our country.
Subsequent events proved the wisdom of the decision of the Convention to give the President a
wide discretion when to convene the interim National Assembly.
a) For although the peace and order condition of the country has improved, it suffered a relapse.
The rebellion had not been completely quelled. Only last January 29, 1975, for instance, the
newspapers carried the report that according to President Marcos — "Muslim insurgents had
broken a truce in Mindanao and Sulu resulting in a fresh outbreak of hostilities and in heavy
casualties." ... "Muslim secessionists ... had taken over three towns in Mindanao and Sulu." ...
"An Armed Forces contingent of 42 men, including three officers and the battalion commander,
were wiped out in a surprise raid."
b) The oil crises which brought about worldwide inflation, recession and depression, created
problems which, according to economic experts, can be solved effectively only with the
President exercising legislative powers. A National Assembly would take a longer period of time
to be able to pass the necessary legislation to cope with this worsening economic situation.
c) And what is most important is that in addition to the criticisms levelled in the Convention
against the membership of the interim National Assembly, the people themselves expressed
their disfavor against the interim Assembly by voting against its immediate convening when they
ratified the Constitution on January 10-15, 1973. In the July 24, 1973 referendum, the
Barangays reiterated their decision of January, 1973 to suspend the convening of the
interimNational Assembly. And in connection with the forthcoming February 27, 1975
referendum, many members of thisinterim National Assembly themselves asked that the
question of whether or not the assembly should immediately be convened be eliminated, as in
fact it was eliminated, because the people had already decided against the immediate
convening of the interim Assembly.
Perhaps, it was a blessing in disguise that before this interim National Assembly could be
convened, it has been "fiscalized" in advance be our people. The people apparently have
expressed their distrust of this interim Assembly. This has become a standing challenge so that
when this interim Assembly is finally convened, its members may discharge their duties and
responsibilities in such a manner as to rebut successfully the basis for the opposition of the
people to its being convened in the meantime.
I have adverted to the proceedings of the Constitutional Convention because it supports the
literal interpretation of the Constitution which I now wish to make. The wording of the New
Constitution is, I believe, clear. Considering the condition in which the country was at the time
they approved the draft of the Constitution, it would have been unthinkable for the Constitutional
Convention not to have provided for a continuity in the office of the Chief Executive.
It is equally unthinkable 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 law-making powers, there would be paralyzation of the entire governmental
machinery. Such an interpretation of the Transitory Provisions is so absurd it should be rejected
outright.
The original wording of Article XVII, Section 3(2) was that "all proclamations, orders, decrees,
instructions and acts promulgated, issued or done by the present administration are hereby
ratified and confirmed as valid." The words "ratified and confirmed" had been changed into
"shall be part of the law of the land," because under the first clause, it would imply that the
incumbent President did not have the authority to issue the proclamations, orders, decrees,
instructions and acts referred to. The Convention conceded that the President had that power;
and that is the reason why the phrase "shall be part of the law of the land" was the one finally
used.
Parenthetically, the Constitutional Convention itself recognized expressly the legislative power
of the incumbent President to enact an appropriation law when it asked and the same was given
by the incumbent President additional funds at the time when there was already martial law.
I wish to add that this legislative power of the President under martial law should not be limited
to the legislative power under the old classical concept of martial law rule. For the modern
concept of martial law rule includes not only the power to suppress invasion, insurrection or
rebellion and imminent danger thereof, but also to prevent their resurgence by the removal of
the causes which gave rise to them; in a word, the reform of our society.
In the speech that I delivered as a Delegate from Laguna in the Constitutional Convention in its
plenary session of October 20, 1972, I stated my firm conviction that President Marcos would
want to go down in history as a good President. This was not only a belief but a challenge to
him as well; and I am glad that subsequent events proved the correctness of my stand. In one of
his books, he himself said:
Moreover, we have embarked upon the experiment with the full knowledge that its
outcome will depend on most of us, not just a few who are managing a "command
society." The misgivings are large; the most outstanding is the fear of a powerful few
holding the many in subjection. But this fear misses the particularity of Philippine martial
law; it cannot and not exist without the clear and not manipulated consent of the
governed. Our people will accept only sacrifices which are justifiable to them.
It is more than a homily to assert that the New Society is not a promised land that patiently
awaits our arrival. More than a place in time or space, the New Society is a vision in our minds:
this can be realized only through the strength of our resolution.
I am mindful of the fact that historically authoritarian regimes tend to outlive their justification. I
do not intend to make a permanent authoritarianism as my legacy to the Filipino people. It is
sufficiently clear to them, I believe, that martial law is an interlude to a new society, that it is, in
sum, a Cromwellian phase in our quest for a good and just society. Certainly the enterprise is
worth a little sacrifice. (Marcos, The Democratic Revolution in the Philippines, 217-218, [1974]).
And in his speech before government elective officials of Bulacan last January 29, 1975 as
reported in the newspapers of last January 30, 1975, he solemnly said that should the coming
referendum fail to give him a vote of confidence, he would call the interim National Assembly to
session and that more than that, he would ask the Assembly to immediately fix the date for
elections of the members of the National Assembly; and that in such a case, he would run in his
district for a seat in the Assembly.
And so, it is now up for the people to speak in the coming February 27, 1975 referendum. The
information campaign should now go in full gear. The Commission on Elections should
emphasize the freedom of debate during the campaign; it should emphasize the freedom of the
people to express themselves not only in the debates but more so as they cast their ballots, by
safeguarding the secrecy of the ballot. And the Commission should redouble its efforts to assure
the people that there will be a true, correct and accurate reading of the ballots, counting of the
votes, and a report of the results of the referendum.
IN VIEW OF ALL THE FOREGOING, I repeat my concurrence in the decision of this Court and
in the separate opinions of Justices Castro and Barredo. The petition should thus be dismissed,
without costs.
TEEHANKEE, J., concurring and dissenting:
In concur with the main opinion insofar as it recognizes President Ferdinand E. Marcos as the
"incumbent President" and head of government who is vested with authority under Article XVII,
section 3 (1) of the Transitory Provisions of the 1973 Constitution to "continue to exercise his
powers and prerogatives under the 1935 Constitution and the powers vested in the President
and Prime Minister under this Constitution."
I am constrained, however, to dissent from the remaining portion thereof which dismisses the
petition, on the basis of serious constitutional grounds as briefly expounded hereinafter.
1. It cannot be gainsaid that the single most important change effected by the 1973 Constitution
is the change of our system of government from presidential to parliamentary wherein the
legislative power is vested in a National Assembly 1 and the Executive Power is vested in the
Prime Minister who "shall be elected by a majority of all the members of the National Assembly
from among themselves." 2 The President who is likewise elected by a majority vote of all the
members of the National Assembly from among themselves "shall be the symbolic head of
state." 3
To carry out the "orderly transition from the presidential to the parliamentary system," section 1
of the Transitory Provisions decreed that:
SECTION 1. There shall be an interim National Assembly which shall exist immediate
upon the ratification of this Constitution and shall continue until the Members of the
regular National Assembly shall have been elected and shall have assumed office
following an election called for the purpose by the interim National Assembly. Except as
otherwise provided in this Constitution, the interim National Assembly shall have the
same powers and its Members shall have the same functions, responsibilities, rights,
privileges, and disqualifications as the regular National Assembly, and the Members
thereof. (Art. XVII)
Section 2 of the Transitory Provisions provides for the members of the interim National
Assembly. The Solicitor General stated at the hearing that the interim National Assembly came
into existence after the proclamation on January 17, 1973 of the ratification of the Constitution
per Proclamation No. 1102 when the members thereof took their oath of office and qualified
thereto in accordance with the cited section and continues in existence at the present time
without having been convened.
Petitioners raise the question as to the scheduled referendum called for February 27, 1975 that
the calling of a referendum and the appropriation of funds therefor are essentially legislative
acts while the transitory powers and prerogatives vested in President Marcos until the election
of the interim Prime Minister and interim President under section 3 (1) of the Transitory
Provisions are executive and not legislative powers, since the powers of the President under the
1935 Constitution and those of the Prime Minister under the 1973 Constitution are essentially
executive powers; more so, with respect to the powers of the President under the 1973
Constitution which are symbolic and ceremonial.
While the Solicitor General has cited the President's powers under martial law and under
section 3 (2) of the Transitory Provisions 4 as vesting him with Šlegislative powers, there is
constitutional basis for the observation that his legislative and appropriation powers under
martial law are confined to the law of necessity of preservation of the state which gave rise to its
proclamation 5 (including appropriations for operations of the government and its agencies and
instrumentalities).
Rossiter, as extensively cited by Solicitor General, has thus stressed that "the measures
adopted in the prosecution of a constitutional dictatorship should never be permanent in
character or effect. ... The actions directed to this end should therefore be provisional. ...
Permanent laws, whether adopted in regular or irregular times are for parliaments to enact," and
that "a radical act of permanent character, one working lasting changes in the political and
social fabric (which) is indispensable to the successful prosecution of the particular
constitutional dictatorship ... must be resolutely taken and openly acknowledged [as exemplified
by U.S. President Lincoln's emancipation proclamation] ... Nevertheless, it is imperative that any
action with such lasting effects should eventually receive the positive approval of the people or
of their representatives in the legislature." 6
Even from the declared Presidential objective of using Martial Law powers to institutionalize
reforms and to remove the causes of rebellion, such powers by their very nature and from the
plain language of the Constitution 7 are limited to such necessary measures as will safeguard
the Republic and suppress the rebellion (or invasion) and measures directly connected with
removing the root causes thereof, such as the tenant emancipation proclamation. 8 The concept
of martial law may not be expanded, as the main opinion does, to cover the lesser threats of
"worldwide recession, inflation or economic crisis which presently threatens all nations" 9 in
derogation of the Constitution.
On the other hand, those legislative powers granted in the cited section 3 (2), known as the
validating provision which validated the President's acts and decrees after the proclamation of
martial law up to the ratification of the Constitution are limited to modifying, revoking or
superseding such validated acts and decrees done or issued prior to the proclaimed ratification,
since section 7 of the Transitory Provisions 10 expressly reserves to the National Assembly the
legislative power to amend, modify or repeal "all existing laws not inconsistent with this
Constitution."
The question is thus reduced as to whether now after the lapse of two years since the adoption
of the 1973 Constitution, the mandate of section 3 (1) of the Transitory Provisions for the
convening, of the existing interimNational Assembly should be implemented — not for purposes
of an action of mandamus which cannot be availed of because of the separation of powers —
but for the present action of prohibition against respondents officials which asserts that the
questioned referendum comes within the constitutional domain of the interim National Assembly
and that after the coming into "immediate existence of the interim National Assembly upon the
proclamation of ratification of the Constitution, the "initial convening" thereof with the election of
the interim Speaker and the election of the interim President and the interim Prime Minister
should have followed as a matter of course. The cited provision reads:
SEC 3. (1) 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 untilhe calls upon the interim National
Assembly to the elect the interim President and the interim Prime Minister, who shall
then exercise their respective powers vested by this Constitution. (Art. XVII)
2. The above quoted pertinent provisions indicate an affirmative answer. It is axiomatic that the
primary task in constitutional construction is to ascertain and assure the realization of the
purpose of the framers and of the people in the adoption of the Constitution and that the courts
may not inquire into the wisdom and efficacy of a constitutional or statutory mandate.
Where the language used is plain and unambiguous, there is no room for interpretation. "It is
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." 11
The mandate of section 1 of the Transitory Provisions that the interim National Assembly shall
"exist immediatelyupon the ratification of this Constitution" calls for its coming into existence
"right away" as conceded by respondents at the hearing. Likewise, as affirmed by the Solicitor
General, its members as provided in section 2 duly took their oath of office and qualified thereto,
upon the proclamation of ratification. The clear import of section 3 in order to give meaning and
effect to the creation and "immediate existence" of the interim National Assembly is that the
incumbent President shall then proceed to "initially (i.e. "in the first place: at the beginning") 12
convene" it and preside over its sessions until the election of the interim Speaker after which he
calls for the election of the interim President and theinterim Prime Minister "who shall then
exercise their respective powers vested by this Constitution." (The "incumbent President" then
bows out and is succeeded by the Prime Minister who may of course be himself).
This view is further strengthened by the expectations aired in the debates of the 1971
Constitutional Convention that a parliamentary government would be more responsible and
responsive to the people's needs and aspirations. Thus, in section 5 of the Transitory Provision,
the interim National Assembly was charged with the mandate to "give priority to measures for
the orderly transition from the presidential to the parliamentary system, the reorganization of the
Government the eradication of graft of and corruption, the effective maintenance of peace and
order, the implementation of declared agrarian reforms, the standardization of compensation of
government employees, and such other measures as shall bridge the gap between the rich and
the poor" — urgent and long-lasting measures which the President has single-handedly
confronted up to now.
3. The manifestation of the Solicitor General that the schedule referendum is merely
consultative and thus includes the participation of voters below 18 years of age but at least 15
years old (who are not qualified enfranchised voters under Article VI on suffrage of the 1973
Constitution which decrees a minimum age of 18 years for qualified voters) adds weight to the
view that the existing interim National Assembly be now convened and perform its constitutional
functions as the legislative authority. From the very nature of the transitory provision which
created it, its existence must likewise be interim, i.e. temporary provisional, of passing and
temporary duration (as opposed to permanent and the regular institutions provided for in the first
15 Articles of the Constitution) until after it shall have reapportioned the Assembly seats 13 and
called for the election of the members of the regular National Assembly. 14 The convening of the
interim National Assembly with its cross-section of knowledgeable representatives from all over
the country was obviously hopefully conceived to serve (more than consultative referendums)to
apprise the President of the people's and their constituencies' views as well as to assist him as
mandated by the Constitution in the enactment of priority measure to achieve fundamental and
far-reaching reforms.
4. While it has been advanced that the decision to defer the initial convocation of the interim
National Assembly was supported by the results of the referendum in January, 1973 when the
people voted against the convening of theinterim National Assembly for at least seven years, 15
such sentiment cannot be given any legal force and effect in the light of the State's admission at
the hearing that such referendums are merely consultative and cannot amend the Constitution
or any provision or mandate thereof such as the Transitory Provisions which call for the
"immediate existence" and "initial convening" of the interim National Assembly to "give priority to
measures for the orderly transition from the presidential to the parliamentary system" and the
other urgent measures enumerated in section 5 thereof. 16
This seems self-evident for the sovereign people through their mutual compact of a written
constitution have themselves thereby set bounds to their own power, as against the sudden
impulse of mere and fleeting majorities,17 and hence have provided for strict adherence with the
mandatory requirements of the amending process through a fair and proper submission at a
plebiscite, with sufficient information and full debate to assure intelligent consent or rejection. 18
5. Finally, the imposition of penal sanctions of imprisonment and fine upon the citizens who fail
to register and vote in the scheduled referendum is open to serious constitutional question. It
seems clear that the calling of "consultative referendum" is not provided for nor envisaged in the
Constitution as the appropriate vehicle therefor is provided through the interim and regular
National Assemblies. It should perhaps be reexamined whether the mandate of the Constitution
that "it shall be the obligation of every citizen qualified to vote to register and cast his vote" (at
elections of members of the National Assembly and elective local officials and at plebiscites, as
therein provided for) and the criminal penalties imposed in the questioned decrees should be
deemed applicable to such extra-constitutional consultative referendums wherein non-qualified
voters (the 15-year olds up to below 18) are asked to participate.
MUÑOZ PALMA, J., concurring and dissenting:
The views I express in this separate opinion will briefly explain my position on the principal
issues posed in this Petition for Prohibition.
1. President Ferdinand E. Marcos and no other is the person referred to as "incumbent
President" in Article XVII to which we shall refer for short as the Transitory Provisions of the
1973 Constitution. That fact is beyond doubt because at the time the draft of the new
Constitution was being prepared and when it was finally signed by the delegates to the 1971
Constitutional Convention on November 30, 1972, it was President Marcos who was holding the
position of President of the Philippines.
2. As such incumbent President, President Marcos was vested by Section 3(1) of the Transitory
Provisions with constitutional authority to continue as President of the Philippines during the
transition period contemplated in said Article XVII that is, until the interim President and the
interim Prime Minister shall have been elected by the interimNational Assembly who shall then
exercise their respective powers vested by the new Constitution, after which the office of the
incumbent President ceases. During that transition period, President Marcos was given
extraordinary powers consisting of the powers and prerogatives of the President under the 1935
Constitution, and the powers vested in the President and the Prime Minister under the 1973
Constitution. 1
3. Aside from the vest executive powers granted to the incumbent President as indicated above,
he was granted under Section 3(2) of the same Transitory Provisions legislative powers, in the
sense, that all proclamations, orders, decrees, instructions, and acts which were promulgated,
issued, or done by the incumbent President before the ratification of the Constitution were
declared part of the law of the land, to remain valid, legal, binding or effective even after the
lifting of martial law or the ratification of the Constitution, unless modified, revoked or
superseded by subsequent proclamations, etc., by the incumbent President or unless expressly
and explicitly modified or repealed by the regular National Assembly. As to, whether or not, this
unlimited legislative power of the President continue to exist even after the ratification of the
Constitution is a matter which I am not ready to concede at the moment, and which at any rate I
believe is not essential in resolving this Petition for reasons to be given later. Nonetheless, I
hold the view that the President is empowered to issue proclamations, orders, decrees, etc. to
carry out and implement the objectives of the proclamation of martial law be it under the 1935 or
1973 Constitution, and for the orderly and efficient functioning of the government, its
instrumentalities, and agencies. This grant of legislative power is necessary to fill up a vacuum
during the transition period when the interim National Assembly is not yet convened and
functioning, for otherwise, there will be a disruption of official functions resulting in a collapse of
the government and of the existing social order.
4. Because the grant of vast executive and legislating powers to the incumbent President will
necessarily, result in what the petitioners call a one-man rule as there is a concentration of
power in one person, it is my opinion that it could not have been the intent of the framers of the
new Constitution to grant to the incumbent President an indefinite period of time within which to
initially convene the interim National Assembly and to set in motion the formation of the
Parliamentary form of government which was one of the purposes of adopting a new
Constitution. I believe that the interim National Assembly came automatically into existence
upon the ratification of the 1973 Constitution. As a matter of fact, from the submission of the
Solicitor General, it appears that many if not all of those entitled to become members of the
interim National Assembly have opted to serve therein and have qualified thereto in accordance
with the requirements of Section 2 of the Transitory Provisions. 2
We cannot, therefore, reasonably construe the absence of a specific period of time for the
President to initially convene the interim Assembly as placing the matter at his sole pleasure
and convenience for to do so would give rise to a situation in which the incumbent President
could keep the intent National Assembly in suspended animation and prevent it from becoming
fully operational as long as he pleases. This would violate the very spirit and intent of the 1973
Constitution more particularly its Transitory Provisions to institute a form of government, during
the transition period, based upon the fundamental principle of the "separation of powers," with
its checks and balances, by specifically providing that there shall exist immediately upon the
ratification of the 1973 Constitution an interimNational Assembly in which legislative power shall
exercise all the powers and prerogatives which are executive in character, and that the judicial
power shall continue to be vested in the Judiciary existing at the time of the coming into force
and effect of the 1973 Constitution. The situation would also render nugatory the provisions of
Section 5 of the Transitory Provisions which assign to the interim National Assembly a vital role
to perform during the transition period. 3
While it is true that the convening of the interim National Assembly cannot be said to be simply
at the pleasure and convenience of the President, however, the matter is one addressed to his
sound discretion and judgment for which he is answerable alone to his conscience, to the
people he governs, to posterity, and to history.
5. Coming now to the particular problem of the coming referendum on February 27, 1975, it is
my view that the act of the President in calling such a referendum is not really in the nature of a
legislative act which violates the present Constitution. I do not see any prohibition in the
Constitution for the Chief Executive or the President to consult the people on national issues
which in his judgment are relevant and important. I use the word "consult" because in effect the
measure taken by the President is nothing more than consultative in character and the mere
fact that such measure or device is called a referendum in the Presidential Decrees in question
will not affect nor change in any manner its true nature which is simply a means of assessing
public reaction to the given issues submitted to the people for their consideration. Calling the
people to a consultation is, we may say, derived from or within the totality of the executive
power of the President, and because this is so, it necessarily follows that he has the authority to
appropriate the necessary amount from public funds which are subject to his executive control
and disposition to accomplish the purpose.
6. I am constrained to agree with petitioners that a referendum held under a regime of martial
law can be of no far-reaching significance because it is being accomplished under an
atmosphere of climate of fear. There can be no valid comparison between a situation under
martial rule and one where the privilege of the writ of habeas corpus is suspended, as
discussed in the Opinion of Justice Makasiar, because the former entails a wider area of
curtailment and infringement of individual rights, such as, human liberty, property rights, rights of
free expression and assembly, protection against unreasonable searches and seizures, liberty
of abode and of travel, etc. 4
7. Finally, whatever maybe the totality of the answers given to the proposed referendum
questions on local government will be of no real value to the President because under Article XI,
Section 2, 1973 Constitution, it is the National Assembly which is empowered to enact a local
government code, and any change in the existing form of local government shall not take effect
until ratified by the majority of the votes cast in a plebiscite called for the purpose, all of which
cannot be complied with for the simple reason that for the present there is no National Assembly.
Moreover, any vote given on this matter cannot be truly intelligent considering the vagueness of
the question as drafted and the short period of time given to the citizenry to study the so-called
manager or commission type of local government being submitted to the voters.
8 In conclusion, if I concur in the dismissal of the Petition for prohibition it is for the simple
reason that I believe that calling a referendum of this nature is a valid exercise of executive
power not prohibited by the Constitution as discussed in number 5 of this Opinion.
Separate Opinions
CASTRO, J., concurring:
I vote to deny the petition.
At the threshold, and only for the purposes of this separate capsule opinion, I will assume (a)
that this case before us is not in the nature of a quo warranto proceeding; (b) that the petitioners
possess legal standing before the Court; and (c) that all the petitioners, whatever be the
persuasion of their counsel, recognize the Court as the supreme judicial tribunal operating and
functioning under the 1973 Constitution.
I find no particular difficulty in resolving what I regard as the two crucial issues posed by the
petition.
1. On the matter of whether Ferdinand E. Marcos is still the President of the Philippines, the
Transitory Provisions (Art XVII) of the 1973 Constitution, more specifically Secs. 2, 3, 9 and 12
thereof, even if they do not mention him by name, clearly point to and recognize Ferdinand E.
Marcos as the constitutional and lawful President of the Philippines. If there is any doubt at all
— and I do not personally entertain any — that the said Transitory Provisions refer to President
Marcos as the "incumbent President," then such doubt should be considered as having been
completely dissipated by the resounding affirmative vote of the people on this question
propounded in general referendum of July 27-28, 1973: "Under the [1973] Constitution, the
President, if he so desires, can continue in office beyond 1973. Do you want President Marcos
to continue beyond 1973 and finish the reforms he initiated under martial law?"
2. On the matter of whether President Marcos, at the present time, can constitutionally exercise
legislative power, I do not need to postulate that he derives legislative power from the
constraints of a regime of martial law. To my mind, pars. 1 and 2 of See. 3 of the Transitory
Provisions are unequivocal authority for President Marcos to legislate. These paragraphs read:
The incumbent President of the Philippines shall initially convene the interim National Assemble
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 he calls 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, legal, binding,
and effective even after [the] 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.
Stated elsewhere, my reading of these provisions is that they constitute an unmistakable
constitutional warrant for the "incumbent President" (meaning President Marcos) to legislate
(until, at the very earliest, the interim National Assembly shall have been convoked).
The peripheral matter of whether President Marcos should now or soon convene the interim
National Assembly is completely outside the competence of the Supreme Court to resolve, as,
in my view, it is a political question addressed principally, basically, and exclusively to the
President and the Filipino people.
Makalintal, C.J., Barredo, Antonio, Esguerra and Fernandez, JJ., concur.
FERNANDO, J., concurring:
It is a crucial question that is posed by this petition to call a halt to the February 27 referendum
because of alleged constitutional transgressions. It is one fundamental in its essence, and what
is more, impressed with the sense of immediacy to quiet doubts and to minimize uncertainties.
There has been a quick response, hopefully not one given in haste, which is the enemy of
thought. For all the vigor and the learning that characterized the advocacy of Senator Lorenzo M.
Tañada, it did not suffice to elicit a favorable verdict. The petition did not prosper. So it has been
adjudged, and I concur in the result reached. It is given expression in the notable opinion
penned by Justice Makasiar which, on its face, betrays sensitivity to the magnitude and the
grave implications of the serious problems posed. What is more, it has not avoided subsidiary
issues which reach into vital areas of our constitutional system. To the extent that it reiterates
tried and tested doctrines, I am of course in agreement. Certainly, there is not much difficulty for
me in reaching the conclusion that the term "incumbent President" in the Transitory Provisions
means what it says. If I submit this brief concurrence, it is only because of my belief that
notwithstanding the brilliant and illuminating argumentation in depth by both eminent counsel,
raging far and wide in the domain of constitutionalism, there is no need as yet to express my
views on some collateral matters. It suffices for me to rely on a jurical concept that is decisive. It
is the fundamental principle that sovereignty resides in the people with all government authority
emanating from them. 1 It speaks, to recall Cardozo, with a reverberating clang that drowns all
weaker sounds.
1. Respondents would interpose obstacles to avoid a decision on the merits. They are not
insurmountable. They alleged that the questions raised are political and therefore left for the
political sovereign, not the courts. 2 Such an assertion carries overtones of the Tañada v.
Cuenco 3 ruling that a matter to be decided by the people in their sovereign capacity is of such a
character. It has an aura of plausibility but it cannot stand the rigor of analysis. It confuses the
end result with the procedure necessary to bring it about. It is elemental that constitutionalism
implies restraints as well on the process by which lawful and valid state objectives may be
achieved. 4 What is challenged here is the actuation of the incumbent President for alleged
failure to comply with constitutional requisites. It is much too late in the day to assert that a
petition of that character is not appropriate for the courts. This is not to venture into uncharted
judicial territory. There are landmarks all along the way. This is not then to trespass on
forbidden ground. There is no disregard of the political question concept.
3. It follows therefore that the will of the people given expression, even in an unofficial manner
but accurately ascertained, is impressed with a decisive significance. It is more than just a
foundation for societal or political development. Whether appropriate, it determines what is to be
done. Its significance is vital, not merely formal. It is understandable then why in Javellana, 21
one of the issues passed upon by this Court is the effect of acquiescence by the people to
present Constitution even on the assumption that it was ratified in accordance with the 1935
Charter. It may not be amiss to recall what I did state on that point in my separate opinion: "Nor
is the matter before us solely to be determined by the failure to comply with the requirements of
Article XV. Independently of the lack of validity of the ratification of the new Constitution, then
this Court cannot refuse to yield assent to such a political decision of the utmost gravity,
conclusive in its effect. Such a fundamental principle is meaningless if it does not imply, to
follow Laski, that the nation as a whole constitutes the "single center of ultimate reference,"
necessarily the possessor of that "power that is able to resolve disputes by saying the last
word." If the origins of the democratic polity enshrined in the 1935 Constitution with the
declaration that the Philippines is a republican state could be traced back to Athens and to
Rome, it is no doubt true, as McIver pointed out, that only with the recognition of the nation as
the separate political unit in public law is there the juridical recognition of the people composing
it "as the source of political authority." From them, as Corwin did stress, emanate "the highest
possible embodiment of human will," which is supreme and must be obeyed. To avoid any
confusion and in the interest of clarity, it should be expressed in the manner ordained by law.
Even if such were not the case, however, once it is manifested, it is to be accepted as final and
authoritative. The government which is merely an agency to register its commands has no
choice but to submit. Its officials must act accordingly. No agency is exempt from such a duty,
not even this Court. In that sense, the lack of regularity in the method employed to register its
wishes is not fatal in its consequences. Once the fact of acceptance by the people of a new
fundamental law is made evident, the judiciary is left with no choice but to accord it recognition.
The obligation to render it obeisance falls on the courts as well." 22
To such a cardinal jural postulate is traceable my concurring and dissenting opinion in Tolentino
v. Commission on Elections: 23 "It was likewise argued by petitioner that the proposed
amendment is provisional and therefore is not such as was contemplated in this article. I do not
find such contention convincing. The fact that the Constitutional Convention did seek to consult
the wishes of the people by the proposed submission of a tentative amendatory provision is an
argument for its validity. It might be said of course that until impressed with finality, an
amendment is not to be passed upon by the electorate. There is plausibility in such a view. A
literal reading of the Constitution would support it. The spirit that informs it though would not, for
me, be satisfied. From its silence I deduce the inference that there is no repugnancy to the
fundamental law when the Constitutional Convention ascertains the popular will. In that sense,
the Constitution, to follow the phraseology of Thomas Reed Powell, is not silently silent but
silently vocal. What I deem the more important consideration is that while a public official, as an
agent, has to locate his source of authority in either Constitution or statute, the people, as the
principal, can only be limited in the exercise of their sovereign powers by the express terms of
the Constitution. A concept to the contrary would to my way of thinking be inconsistent with the
fundamental principle that it is in the people, and the people alone, that sovereignty resides." 24
As it was then, so, to my way of thinking, should it be now. With such a decisive consideration in
mind, it is difficult to conclude that the infirmities imputed to the challenged Presidential decrees
are fatal. They do not suffer from the corrosion of substantial constitutional infractions. It is in
that sense that I do not feel called upon to inquire into the nature of the authority conferred on
the incumbent President under the Transitory Provisions, whether purely executive as
contended by petitioners or both executive and legislative as argued by respondents. I leave
that question for another day. What cannot be ignored is that with a National Assembly in
existence but not convened, it is only the Executive that can perform those essential and
indispensable functions of dealing with the actual conduct of public affairs. That is the reality
that stares us in the face. To deny his power to issue decrees and to appropriate public funds is
thus to assure the paralyzation and impotence of government. Precisely then, if a referendum
may lend itself to a reappraisal of the situation, by all means let it be conducted. This is not to
deny that the judicial power to call a halt exists. It is merely to stress that it should be exercised
with the utmost reluctance as is required by deference to the concept of popular sovereignty. To
be more specific about the matter, this Tribunal should refrain from making use of that
prerogative now.
Parenthetically, it may be observed that in 1973 when the Javellana decision was promulgated,
I could not detect sufficient evidence as to the fact of acquiescence to the present Constitution.
That was why I had to dissent from the judgment of the Court dismissing the various petitions
assailing the validity of Proclamation No. 1102. Since then, with well-nigh two years having
gone by, it is quite evident that the matter is no longer open to doubt. Under the standard set
forth in the leading case of Taylor v. Commonwealth, 25 decided at the beginning of the century,
no other conclusion is allowable. The present Constitution "having been thus acknowledged and
accepted by the officers administering the government and by the people ... and being, as a
matter of fact, in force throughout ..., and there being no government in existence ... opposing or
denying its validity, [it] is the only rightful, valid, and existing Constitution ... and that to it all the
citizens ... owe their obedience and loyal allegiance." 26
5. That is about all. In writing this brief concurrence, I had nothing in mind but to explain why I
had to vote the way I did. It is quite obvious that for me the old landmarks of the law are still
there to serve as guides, that precedents do serve as factors for continuity and stability not to be
ignored but also not to be slavishly obeyed. For in constitutional law more than in any other
branch of juristic science, much depends on the immediacy and the reality of the specific
problems to be faced. Hence it has been truly said in days of crisis or of emergency, to stand
still is to lose ground. Nonetheless, one has always to reckon with the imponderables and the
intangibles, ever so often elusive to our understanding and disheartening to our deeply-
cherished convictions. For he has no choice but to comply as best he can with the duty to
decide in accordance with legal norms with roots that go far deeper than his personal
preferences and predilections. So it has to be.
BARREDO, J., concurring:
I concur in the judgment dismissing the petition. The following opinion is without prejudice to a
more extended one in due time.
Consistently with my opinion in the habeas corpus or martial law cases, the Court has
jurisdiction over the instant petition even if, as will be shown later, the matter of calling a
referendum is by nature a political matter. Anent the possible contention that the title of
President Marcos as President of the Philippines may not be collaterally attacked and that the
proper remedy is quo warranto, under the authority of Nacionalista Party vs. Felix Angelo
Bautista, 85 Phil. 101, I concede that the remedy of prohibition is not altogether improper.
The first ground of the petition is that President Marcos does not have any legal authority to call
the referendum because he is not holding any public office. The specific arguments supporting
this contention are that (1) Marcos is no longer President under the 1935 Constitution; (2) he is
not President nor Prime Minister under the 1973 Constitution; (3) he is not the "incumbent
President" contemplated in the transitory provisions of the new constitution; and, in any event,
his transitory powers as "incumbent President" have already lapsed. The second and third
grounds are that President Marcos does not have any power to legislate nor the authority to
issue proclamations, decrees and orders having the force of law, hence he cannot issue
decrees appropriating funds and, therefore, the decree calling for the referendum is void.
It is my considered conviction that these grounds are untenable.
President Marcos' authority to continue exercising the powers of the President under the 1935
Constitution and to exercise those of President and Prime Minister under the 1973 Constitution
is specifically provided for in Sec. 31 Article XVII of the 1973 Constitution. It is to me
unquestionable that by virtue of these provisions, President Marcos' being the President of the
Philippines, is constitutionally indubitable.
It was precisely because upon the effectivity of the New Constitution President Marcos would
cease to be President under the 1935 Charter and would not then be occupying any office
under the New Constitution, and, on the other hand, there would yet be no new president and
no prime minister, that he, as "incumbent President" at that time had to be expressly granted the
authority to exercise the powers of the President under the Old Constitution as well as those of
the President and the Prime Minister under the new one, pending the election of these officers.
Necessarily, there had to be a head of government until the new parliamentary system could be
properly installed, and whether or not it would have been wiser to confer the powers in question
on some other official or body is not for the Court to decide. In the meantime, the title of
President is the most appropriate to be held by him.
The contention that President Marcos may not be considered the "incumbent President"
referred to in the Constitution because what is contemplated therein is the one who would be in
office at the time of its ratification and that pursuant to the Javellana decision of the Supreme
Court, the constitution has not yet been ratified, whereas, on the other hand, the term of
President Marcos under the 1935 Constitution expired on December 30, 1973, is predicated
wholly on the old theory advanced in the habeas corpus cases and which has already been
discarded in the opinions therein, although perhaps, it is best that the Court made a categorical
ruling which would clear all doubts on the matter and thereby do away with this issue once and
for all. To that end, I would say that as far as the Court is concerned, its holding in Javellana
that "there is no more judicial obstacle to the New Constitution being considered as in force and
effect" should be understood as meaning that the charter is as valid and binding for all purposes
as if it had been ratified strictly in accordance with the 1935 Constitution as petitioners would
argue it should have been.
The problem of constitutional construction raised in the petition is, does the Constitution
contemplate that the interim assembly created by it would meet immediately and forthwith elect
the new President and the Prime Minister? If this question were to be answered in the light of
normal conditions, there could be some plausibility in suggesting an affirmative response, albeit
not altogether conclusive. But no one can ever escape the fact that the Constitution was
formulated and approved under abnormal and exceptional circumstances. The members of the
convention were well cognizant of the fact that the country was then as it still is under martial
law and that normal processes of government have not been in operation since its proclamation.
We must assume that as practical men they knew that the procedure of shifting from the
presidential to the parliamentary system would have to be reconciled with the demands of the
martial law situation then obtaining. Above all it must have been obvious to the delegates that
under martial law, President Marcos had in fact assumed all the powers of government. In other
words, it must have been evident to them from what was happening that the immediate
convening of the legislative body would not be compatible with the way President Marcos was
exercising martial law powers.
It is but proper, therefore, that these transcendental historical facts be taken into account in
construing the constitutional provisions pertinent to the issue under discussion. As I see it, given
the choice between, on the one hand, delaying the approval of a new charter until after martial
law shall have been lifted and, on the other, immediately enacting one which would have to give
due allowances to the exercise of martial law powers in the manner being done by President
Marcos, the convention opted for the latter. To my mind, it is only from this point of view that one
should read and try to understand the peculiar and unusual features of the transitory provisions
of the New Constitution.
Otherwise, how can one explain why, instead of giving the interim Assembly itself the power to
convene motu propioas was being done in the regular sessions of the old legislature and as in
the case of the regular National Assembly provided therein, said power has been granted by the
Constitution to the incumbent President? Very significantly in this connection, whereas Section
1 of Article XVII very explicitly uses the word "immediately" in reference to the existence of the
interim Assembly, there is no time fixed as to when the incumbent President should initially
convene it. Withal, even the authority to call for the election of the new President and the Prime
Minister was not lodged in the assembly but again in the incumbent President. Is it not logical to
conclude that the reason behind all these unprecedented provisions is to avoid putting any
hindrance or obstacle to the continued exercise by President Marcos of the powers he had
assumed under his martial law proclamation and his general orders subsequent thereto? If the
Convention were differently minded, it could have easily so worded the said provisions in the
most unequivocal manner. And what makes this conclusion definite is precisely the insertion in
the transitory provisions of Section 3(2) of Article XVII which makes all the proclamations,
decrees, orders and instructions of the incumbent President part of the law of the land, which, in
my considered view, is the Convention's own contemporary construction that during martial law,
the administrator thereof must of necessity exercise legislative powers particularly those needed
to carry out the objectives of the proclamation, with no evident limitation except that no
particular legislation not demanded by said objectives shall infringe Section 7 of Article XVII
which reserves to the regular National Assembly the power to amend, modify or repeal "all
existing laws not inconsistent with this Constitution." Neither paragraph (1) nor paragraph (2) of
Section 3 of the same article would have been necessary if the convention had intended that the
interim National Assembly would be immediately convened and the new President and the
Prime Minister would be forthwith elected. Indeed, it is implicit in the provisions just mentioned
that the delegates had in mind that there would be a considerable time gap between the going
into effect of the New Constitution and the election of the new President and the Prime Minister.
And they could not have been thinking merely of the possibility of protracted delay in the
election of said officers because the Assembly itself, once convened, could have readily
provided in the exercise of its inherent powers for what might be required in such a contingency.
In support of the foregoing views, I invoke the testimonies of Delegates Aruego, Tupaz, Ortiz,
Pacificador and others which were quoted during the hearing and the deliberations. I will quote
them in my extended opinion.
It must be borne in mind that once martial law is proclaimed, all the powers of government are
of necessity assumed by the authority that administers the martial law and the operation of the
regular government, including its legislature and its judiciary, is subjected to its imperatives. Of
course, the Constitution itself is not ousted, but by the power that the Constitution itself vests in
the Executive to issue the proclamation, it yields the application and effects of some of its
provisions to the demands of the situation, as the administrator may in his bona fide judgment
so determine. Otherwise stated, since laws and regulations would be needed to maintain the
government and to provide for the safety and security of the people, the orders of the
administrator are given the force of law. In that sense, the administrator legislates. If he can
legislate, so also he can appropriate public funds.
To my mind, these postulates underlie the provisions of Sec. 3(2) of Article XVII. To reiterate,
the said provision recognizes legislative power in the incumbent President and the scope of said
powers is coextensive with what might be needed, primarily according to his judgment, to
achieve the ends of his martial law proclamation, and in all other respects, they are limited only
by the provisions of Sec. 7 of the same article, but, evidently, even this limitation must be
reconciled with the fundamental criterion that the New Constitution was conceived, formulated
and enacted with the basic objective of establishing the New Society for which martial law was
proclaimed. In other words, since the known broad objective of Proclamation 1081 is not only to
contain or suppress the rebellion but also to reform our society and recognize and restructure
our government and its institutions as the indispensable means of preventing the resurgence of
the causes of the rebellion, it is obvious that any decree promulgated by the President in line
with these purposes, including those appropriating the necessary funds therefor, cannot be
assailed as beyond the pale of the Constitution.
There is nothing in the letter of the Constitution concerning referendums. But it would be absurd
to think that such paucity may be deemed to indicate that the government has no authority to
call one. If there is anything readily patent in the Constitution, it is that it has been ordained to
secure to the people the blessings of democracy and that its primordial declared principle is that
"sovereignty resides in the people and all government authority emanates from them." Of
course, it establishes a representative democracy, but surely, there is and there could be no
prohibition in it against any practice or action that would make our government approximate as
much as possible a direct one, which is the ideal. On the contrary, it is self-evident that
conditions and resources of the country permitting, any move along such a direction should be
welcome. In fact, at this time when there are fears about what some consider as an emerging
dictatorship, referendums in the manner contemplated in the impugned presidential decrees
provide the means for the most vigorous assertion by the people of their sovereignty, what with
the participation therein of even the fifteen-year olds and non-literates and the concrete efforts
being exerted to insure the most adequate submission and the utmost freedom of debate and
consensus as the emergency situation would permit and to have the fairest recording and
tabulation of the votes. Granting the good faith of everyone concerned, and there is absolutely
no reason why it should be otherwise, a unique exercise of essential democratic rights may be
expected, unorthodox as the experience may be to those who cannot understand or who refuse
to understand martial law Philippine style. In principle, to oppose the holding of a referendum
under these circumstances could yet be a disservice to the nation.
A plebiscite or election of officials prescribed by the Constitution for specific occasions must be
distinguished from a referendum, which is an inherent constitutional democratic institution,
perhaps not normally convenient to hold frequently or regularly, but which in certain periods in
the life of the nation may be indispensable to its integrity and preservation. The administration of
martial law is usually considered as nothing more than submission to the will of its administrator.
Certainly, there can be no objection to said administrator's holding a dialogue with the people
and adopting ways and means of governing with their full acquiescence manifested in whatever
happens to be the most feasible way of doing it. If it be assumed that a referendum under the
aegis of martial law may not be an ideal gauge of the genuine will of all the people, no one
would deny that if it is undertaken in good faith, and giving allowances to the imperatives of the
situation, it can somehow reflect their sentiment on the grave issues posed. Besides, whether or
not the people will enjoy sufficient and adequate freedom when they cast their votes in the
challenged referendum is a question that is unfair to all concerned to determine a priori and
beforehand. In any event, it is history alone that can pass judgment on any given referendum.
Upon the other hand, whether a referendum should be called or not and what questions should
be asked therein are purely political matters as to which it does not appear to be proper and
warranted for the Court to exert its judicial power in the premises. To be sure, the referendum in
question could be a waste of the people's money in the eyes of some concerned citizens, while
it may be a necessary and fruitful democratic exercise in the view of others, but what is certain
is that considering its nature and declared purposes and the public benefits to be derived from it,
it is the better part of discretion, granted to it by the Constitution for the Court to refrain from
interfering with the decision of the President.
The claim that the Comelec may not be considered as the independent and impartial guardian
of the results of the scheduled referendum has no basis in fact. From extant circumstances, the
recent activities of that body have not been characterized by any perceptible design to influence
such results in any direction. Referendums being, as they are, in the Philippines today, in the
nature of extra-constitutional innovations, it seems but natural and logical at this stage that the
Comelec has been assigned to undertake the functions of formulating the questions, which,
after all has been done after a more or less nationwide gathering of opinions, and of
subsequently explaining them to the people to best enable them to vote intelligently and freely.
I see no cause to be apprehensive about the fate of those who might wish to vote "no." To start
with, the voting will be secret and is guaranteed to be so. And when I consider that even a
strongly worded petition to enjoin the referendum has been openly ventilated before the
Supreme Court with full mass media coverage giving due emphasis to the points vehemently
and vigorously argued by Senator Tañada, who did not appear to be inhibited in the expression
of his views, I cannot but be confirmed in the conviction that the apprehensions of petitioners
are unfounded.
Under the New Constitution, every citizen is charged with the duty to vote. To vote in a
referendum is no less a sacred civic obligation than to vote in an election of officials or in a
plebiscite. The impugned decrees cannot therefore be constitutionally faulted just because they
provide penalties for those who fail to comply with their duty prescribed in no uncertain terms by
the fundamental law of the land.
Makalintal, C.J., Antonio, Esguerra and Fernandez, JJ., concur.
ANTONIO, J., concurring:
I
The only rational way to ascertain the meaning and intent of paragraphs 1 and 2 of Section 3 of
Article XVII (transitory provisions) of the New Constitution is to read its language in connection
with the known conditions of affairs out of which the occasion for its adoption had arisen, and
then construe it, if there be any doubtful expression, not in a narrow or technical sense, but
liberally, giving effect to the whole Constitution, in order that it may accomplish the objects of its
establishment. For these provisions can never be isolated from the context of its economic,
political and social environment.
The New Constitution was framed and adopted at a time of national emergency. The delegates
to the Constitutional Convention realized that the rebellion, lawlessness and near anarchy that
brought about the declaration of martial law, were mere symptoms of a serious malady in the
social order. They knew that the revolutionary reforms made by the incumbent President thru
his decrees, orders and letters of instruction, such as the emancipation of the tenant-farmer
from his bondage to the soil, reorganization of government, eradication of graft and corruption
and measures to bridge the gap between the rich and the poor, were indeed imperative, if the
exigency that brought about the military necessity was to be overcome, civil order restored, and
the foundations of genuine democracy established. The actions of the incumbent President in
promulgating those measures legislative in character during martial law was not without legal
and historical basis. Democratic political theorists traditionally have assumed the need in time of
emergency to disregard for the time being the governmental process prescribed for peacetime
and to rely upon a generically different method of government — the exercise by the Chief
Executive of extraordinary or authoritarian powers, to preserve the State and the permanent
freedom of its citizens. 1
Thus, in my concurring opinion in Javellana, et al. v. Executive Secretary, et al., 2 it was stated
that "to preserve the independence of the State, the maintenance of the existing constitutional
order and the defense of the political and social liberties of the people, in times of grave
emergency, when the legislative branch of the government is unable to function or its
functioning would itself threaten the public safety, the Chief Executive may promulgate
measures legislative in character, ...". We considered then that the proclamation of martial rule
marked the commencement of a crisis government and crisis government in a constitutional
democracy entails the concentration and expansion of governmental power and the release of
the government from the paralysis of constitutional restraints in order to deal effectively with the
emergency. 3 This was the view of the members of the Constitutional Convention when they
framed the New Constitution.
In Our concurring opinions in Aquino, et al. v. Enrile et al., 4 We declared that on the basis of the
deliberations of the 166-man Special Committee of the Constitutional Convention, which was
authorized to make the final draft of the Constitution, during their session on October 24, 1972,
the Convention expressly recognized the authority of the incumbent President during martial law
to exercise legislative powers not merely in the enactment of measures to quell the rebellion but,
more important, of measures urgently required to extirpate the root causes of the social disorder
which gave rise to the exigency.
In was with a view of the continuance of the exercise of these extraordinary powers that the
Convention provided in paragraph 1, Section 3, of Article XVII of the transitory provisions of the
New Constitution that: "He (the incumbent President) shall continue to exercise his powers and
prerogatives under the nineteen hundred thirty-five Constitution ..." and in paragraph 2 thereof
also provided that: "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, legal, binding and effective even after lifting of martial law or 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."
The conferment upon the incumbent President of those extraordinary powers necessarily
implies that in view of the emergency, there might be a deferment in the convening of the
interim National Assembly and, therefore, it was necessary that he be equipped with adequate
legal authority and power to carry the body politic through the crisis.
Indeed, the need of the times was for a more expeditious mode of decision-making and policy
formulation. The insurgency and the secessionist movement compounded by a world-wide
economic inflation and recession generated problems which must be solved with immediacy
and with policies that are flexible and responsive to the imperatives of the crisis.
II
The impossibility for the Convention to determine a priori, in view of the emergency situation,
the time when conditions shall have sufficiently normalized to permit the convening of the
interim Assembly, precluded them from fixing in the transitory provisions of the Constitution a
definite period when the incumbent President shall initially convene that body. It was a matter
which was wholly confided by the Constitution to the incumbent President. Since the exercise of
this power was committed to the incumbent President in all the vicissitudes and conditions of
the emergency, it has necessarily given him ample scope for the exercise of his judgment and
discretion. It was a political decision for which he is directly responsible to the people to whom
he is accountable and for whose welfare he is obliged to act. As stated in the separate opinion
of Justice Castro, concurred in by the Chief Justice, Justices Barredo, Esguerra, Fernandez and
the writer of this opinion, "The peripheral matter whether President Marcos should now or soon
convene the interim National Assembly is completely outside the competence of the Supreme
Court to resolve as ... it is a political question addressed principally, basically, and exclusively to
the President and the Filipino people."
III
Neither can it be asserted that the exercise by the incumbent President of those extraordinary
powers is necessarily inconsistent with and an absolute contradiction to the existence of a
democracy. 5 When the exercise of such authoritarian powers is expressly conferred upon him
by the Constitution, it represents the will of the sovereign people as the source of all political
power. So long as the power is used to fulfill its true function in realizing the ethical purposes of
the community, which is to ensure the economic and social well-being of its citizens and to
secure to them justice, such power is employed for constructive and moral purposes. Its
exercise is, therefore, legitimate as it represents the collective will of the people themselves. It is,
therefore, logical that the incumbent President consult the people on issues vital to the public
interest even through a consultative referendum. Such useful and healthy contact between the
government administrator and the citizenry is the more necessary in a period of martial law,
because the equal participation of the citizenry in the formulation of the will of the State and in
its fundamental political decisions ensures the unity of the people in their efforts to surmount the
crisis. The success then of the political leadership in leading the nation through the emergency
would depend on its ability to convince and persuade, not to dictate and coerce; to enlist, not to
command; to arouse and muster the energies, loyalties, and, if need be, the sacrifices of the
people. As Leibholz aptly observed, "the one essential presupposition of democracy is that the
people as a political unity retains its sovereignty, and that the majority of the active citizens can
express their will in political freedom and equality." 6
IV
It is, however, asserted that the questions asked may not logically be the subject of a
referendum. Thus, it is claimed that some of the questions contemplate vital changes in the
existing form of local government, which changes, under Sections 2 and 3 of Article XI of the
1973 Constitution, must be submitted to the electorate for ratification in a plebiscite called for
that purpose. Admittedly, the question of the coming referendum asked the voters in the Greater
Manila Area, do not contain a full text of the law proposed for the ratification or rejection by the
people. It is, therefore, not a plebiscite contemplated by the aforecited Sections 2 and 3 of
Article XI of the New Constitution but merely a referendum, advisory or consultative in character.
Political democracy is essentially a government of consensus. The citizen has "a right and a
duty to judge his own concerns, his acts and their effects, as they bear on the common good. If
they entail the common acts of the community, he again has the duty and right to contribute to
the common deliberation by which the acts of the community are decided." 7 Common
deliberation or mutual persuasion occurs on all levels of society, and as a result thereof a
common judgment or consensus is formed on those matters which affect the democratic polity.
This is based on the premise that sovereignty in a political democracy resides in the people and
that, their government is founded on their consent. It is in the formulation of this consensus
whether in an election, plebiscite, direct legislation or advisory referendum or consultation, that
the political community manifests its consent or dissent. The national leadership as the elected
representative of the national community has the duty to be responsive and responsible to this
sovereign will. It has been said that the President "speaks and acts as the people's agent. He
lays claim to a mandate from them for his acts. Authority descends upon him from the nation,
not from the other organs of government." 8 In his dual role as Chief Executive and Legislator
under martial law, the incumbent President has, therefore, a greater degree of accountability to
the political community. To discharge effectively that responsibility, he has to ascertain the
people's consensus or common judgment and to act in accordance therewith. Only then can it
be said that his actions represent the people's collective judgment and, therefore, entitled to
their whole-hearted support. The coming referendum is a national undertaking affecting the
future of the country and the people. It, therefore, requires the involvement of every Filipino. By
participating in the national consultation or advisory referendum of February 27, 1975, the
Filipino people will prove to the rest of the world their maturity and capability as a people to
make major decisions.
V
It is nevertheless asserted that a referendum held under present existing circumstances is of no
far-reaching significance because it is being undertaken in a climate of fear. The infirmity of
such a priori judgment is evident from the fact that it is not based on reality. It betrays a lack of
awareness of the strength and character of our people. It is contradicted by past experience.
There has been a deliberate policy to lift gradually the strictures on freedom attendant to a
regime of martial law. Thus, State restrictions on press freedom had been removed, except over
publications which, because of their subversive or seditious character, are deemed incompatible
with the public safety. Freedom of discussion and of assembly are now encouraged. No less
than the incumbent President of the Philippines has underscored the need for an accurate and
honest canvass of the people's sentiments. As the nation's leader, he is called upon to make
bold decisions in the face of the grave problems confronting the nation, but he is convinced that
such decisions cannot be effective unless rooted in the will and reflective of the true sentiments
of the sovereign people.
Given the determination of the incumbent President to ascertain the true sentiments of the
people, and considering the measures instituted by the Commission on Elections to safeguard
the purity of the ballot, there appears, therefore, no basis for petitioners' apprehension that the
forthcoming referendum will not reflect the people's untrammeled judgment.
The foregoing opinion contains in brief the reasons for my concurrence with the main opinion
and the separate opinions of Justices Castro and Barredo.
FERNANDEZ, J., concurring:
The present case calls for an interpretation of the New Constitution, particularly its Transitory
Provisions. Privileged as I was to be a member of the Constitutional Convention that drafted the
Constitution, I feel it my duty to write this concurring opinion in the hope that I may be able to
shed light, even if only modestly, on the fundamental questions involved in this case, on the
basis of what I personally know and in the light of the records of the Convention, to show the
understanding and intention of the Delegates when they discussed and voted on the
constitutional provisions involved in this case.
The pertinent provisions of the New Constitution upon which the parties in this case base their
respective claims are:
ARTICLE XVII
TRANSITORY PROVISIONS
SECTION 1. There shall be an interim National Assembly which shall exist immediately
upon the ratification of this Constitution and shall continue until the Members of the
regular National Assembly shall have been elected and shall have assumed office
following an election called for the purpose by the interim National Assembly. Except as
otherwise provided in this Constitution, the interim National Assembly shall have the
same powers and its Members shall have the same functions, responsibilities, rights,
privileges, and disqualifications as the regular National Assembly and the Members
thereof.
Sec. 2. The Members of the interim National Assembly shall be the incumbent President and
Vice-President of the Philippines, those who served as President of the Nineteen hundred and
seventy-one Constitutional Convention, those Members of the Senate and the House of
Representatives who shall express in writing to the Commission on Elections within thirty days
after the ratification of this Constitution their option to serve therein, and those Delegates to the
nineteen hundred and seventy-one Constitutional Convention who have opted to serve therein
by voting affirmatively for this Article. They may take their oath of office before any officer
authorized to administer oath and qualify thereto, after the ratification of this Constitution.
Sec. 3. (1) 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 he calls upon the interim National Assembly to elect the interim President and
the interim Prime Minister, who shall then exercise their respective powers vested by this
Constitution.
(2) 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, legal,
binding, and effective even after lifting of martial law or the ratification of this Constitution,
unless modified, revoked, or superseded by subsequent promulgations, orders, decrees,
instructions, or other acts of the incumbent President, or unless expressly and explicitly modified
or repealed by the regular National Assembly.
xxx xxx xxx
The discussion on these Transitory Provisions in the plenary session 1 of the Constitutional
Convention on October 18, 19 and 20, 1972 2 and the votes thereon clearly show:
1. That the determination of the date the interim National Assembly should be convened was left
to the judgment of the President, the country being, as it still is, under martial law;
2. That the incumbent President legally holds office as such having been authorized to continue
in office and to exercise not only the powers of the President under the 1935 Constitution but
also those of the President and Prime Minister under the 1973 Constitution, from the time the
New Constitution was ratified on January 17, 1973 until the election of the interim President and
interim Prime Minister which up to now has not yet taken place; and
3. That included in the powers of the President under the 1935 Constitution and the powers of
the Prime Minister under the 1973 Constitution is the power to declare martial law which in turn
includes the power to make all needful rules and regulations with the force and effect of law until
the termination of the martial rule.
The minutes of the plenary session of the Convention of October 18, 1972 contain the
sponsorship speech of Delegate Yaneza, Chairman of the Committee on Transitory Provisions.
He described the proposed interimgovernment as a practical response to our abnormal
conditions presently obtaining in the country. He explained that in order to effectively implement
reform measures under the New Constitution, the nation should be relieved of the burden of
political and national elections during the transitory period. The proposed interim National
Assembly should therefore be composed of present elective government officials, together with
members of the Convention who would vote for its creation and who could be of great help, in
view of their familiarity with the provisions of the New Constitution, in the enactment of reform
measures to be approved by the interim National Assembly pursuant to the mandates of the
New Constitution. Delegate Yaneza was interpellated by Delegates Suarez, Tupaz (A), Jamir,
Ledesma (F), Alano, Sanchez, Molina, Siguion Reyna, Pimentel, Laurel, Encarnacion,
Pacificador, Ordoñez, Teves, Gonzales, and his co-sponsor, Delegate Abundo.
The following exchange took place between Delegate Pimentel and Delegate Yaneza.
DELEGATE PIMENTEL (V): Thank you, Mr. Chairman. Now Section 3 has been
repeatedly the basis of certain questions. It says: "the incumbent President of the
Philippines shall initially convene." Will it not be better if we state here, "shall
immediately convene? Or we should provide a certain number of days or months
perhaps after the ratification of the Constitution when the President shall initially convene
thead interim Assembly?
DELEGATE YANEZA: Yes, Your Honor, we can. We see your point and we have discussed that
in the Committee lengthily, but we arrived at a decision to give our President flexibility regarding
this particular matter, Your honor. And we feel that we have decided this matter with some
wisdom and with consideration of the present situation obtaining in our country. (Emphasis
supplied)
The minutes of the plenary session of the Convention of October 19, 1972 show, among others,
the following:
Delegate Reyes (J) inquired whether the incumbent President of the Republic would be at the
same time President and the Prime Minister under the interim Government. Delegate Yaneza
answered affirmatively, adding that the President would actually have a triple personality since
he would exercise powers under the two Constitutions.
Delegate Garcia (L.M.) asked whether the interim Assembly could convene without the approval
of the President, to which Delegate Britanico (a co-sponsor) replied in the negative.
Delegate Barrera (former Supreme Court Justice) was the first to speak against the approval of
Sections 1, 2 and 3 of the Transitory Provisions. He was interpellated by Delegates Lim, Laggui
and Raquiza. He was followed by Delegate Teves who also spoke against the Transitory
Provisions in question. Teves was interpellated by Delegates Purisima, Adil, and Siguion Reyna.
Delegate David (J) was the next opposition speaker. He was in turn interpellated by Delegate
Tupaz (A.).
On October 20, 1972, Delegate Concordia continued the opposition against the Transitory
Provisions, followed by Delegate Garcia (L.M.) who was interpellated by Delegates Bersola
Catan and Leido.
The chair then declared the period of rebuttal open and recognized Delegate Cuaderno as first
speaker. Cuaderno said that he favored the article on the interim Government mainly because
of the benefits of martial law.
Delegate Mutuc was the next rebuttal speaker. He confined his speech to the ratification of all
proclamations, orders, decrees, instructions and acts proclaimed, issued or done by the present
administration under martial law, contending that only the sovereign people could pass
judgment with finality on the same.
Delegate Fernandez followed. And the last rebuttal speaker was Delegate Serrano who
maintained that the interimNational Assembly was a necessity, to fill the vacuum of
constitutional processes that could arise should the President continue in office beyond his
tenure so that he could see the fruition of his efforts to restore normalcy in the country.
The strongest attack on the Transitory Provisions was delivered by Delegate Jesus Barrera of
Rizal, a former Justice of the Supreme Court. This was rebutted by Delegate Estanislao A.
Fernandez of Laguna (now a humble member of this Court). Both speeches covered all the
principal points.
Modesty aside, we now beg to summarize their arguments, as follows:
Delegate Barrera: It is immoral for us to vote Yes, because that would be practically
electing ourselves as members of the interim National Assembly when we were elected
by the people only for the purpose of writing a Constitution.
Delegate Fernandez: True, when we were elected, our mandate from the people was only to
write a new Constitution. But then there was no martial law yet. With martial law, there arose a
need for aninterim Government, specifically, an interim National Assembly. No one has
previously received any mandate from our people on who should be members of this interim
National Assembly. No one can say as of now whether it is immoral, and even moral, for us to
vote Yes. For my part, I will vote Yes because if I vote No, I would foreclose my right to become
a member of this interim National Assembly. I will vote Yes. Afterwards I will consult with the
people of the second district of Laguna on this matter. If they say "Fernandez, you committed an
error", then I will not take my oath. However, if they say "Fernandez, you did well so that we can
have an additional representative in the interim National Assembly," then I will take my oath. By
that time, I think nobody can say it was immoral for me to have voted Yes. But what is most
important is whether or not the members of the interim National Assembly succeed in the
discharge of their duties and responsibilities. If they fail, then our people and history will
condemn them. If they succeed, our people and history may commend them.
Delegate Barrera: As long as the interim National Assembly does not call for the election of the
regular members of the National Assembly, the members of this interim Assembly will continue
in office. For how long, it is not determined. In view of the high salary of the members of the
National Assembly (P60,000.00 a year), there will be a temptation for them not to call for the
election of the members of the regular National Assembly, for a long, long time.
Delegate Fernandez: I disagree. We must grant that the members of the interim National
Assembly would be possessed with a sense of decency and patriotism that would make them
realize the impropriety of overstaying in office. And the people will always be there to
demonstrate thru the media and the streets to compel the interim National Assembly to call for a
regular election.
Delegate Barrera: But it is wishful thinking on the part of the members of the convention to vote
Yes and thereby become members of the interim National Assembly because the President
may unduly delay the lifting of martial law and the calling of the National Assembly into a
session. Then he will be President for life.
Delegate Fernandez: What is the premise of the conclusion of the Delegate from Rizal that the
President will unduly delay the lifting of martial Law and the calling of the interim Assembly into
a session? Nothing. For my part, I wish to advance a premise. If it is valid, the conclusion will be
valid. I believe President Marcos will want to go down in history as a good President. If this
premise is good and I believe it is, then he will not abuse. He will lift martial law and convene the
interim National Assembly at the proper time. He will not be President for life.
Delegate Abundo then said that the committee had accepted the following amendment: "(b) the
Mariño amendment to Section 2 concerning "those members of both the Senate and House of
Representatives to express in writing to the Commission on Elections their option to sit in the
assembly within 30 days after the ratification of the Constitution, etc." There being no objection,
the above amendment was approved.
Delegate Yuzon proposed to fix the date of the election of the members of the regular Assembly
to "not later than May, 1976." Delegate Renulla proposed 1977 instead. Delegate Yuson
accepted the amendment, but when submitted to a vote, the amendment was lost. Other
amendments were proposed and were lost.
Delegate Pacificador moved to suspend the rules so that voting on the draft Transitory
Provisions could be considered as voting on second and third reading and proposed that absent
delegates be allowed to cast their votes in writing and deliver them to the Committee on
Credentials within 72 hours from that day.
The voting followed and the chair announced that by a vote of 274 in favor and 14 against the
draft Transitory Provisions were approved on second and third reading. And among the
delegates that voted affirmatively in favor of these Transitory Provisions whose interpretation is
now the subject of the present case, were: Delegate Alonto (former Senator from Lanao),
Delegate Aruego (the well-known author on the framing of the Constitution), Delegate Baradi
(former Ambassador), Delegate Borra (former COMELEC Chairman), Delegate Cuaderno
(Member of the first Constitutional Convention and Economist who recently passed away),
Delegate De las Alas (former Speaker of the House of Representatives), Delegate Laurel (who
was President Protempore of the Convention), Delegate Feliciano Ledesma (Dean of the
College of Law of San Beda), Delegate Oscar Ledesma (former Senator), Delegate Leido
(former Congressman and Secretary of Finance), Delegate Liwag (former Secretary of Justice
and Senator), Delegate Marino (former Executive Secretary and Secretary of Justice), Delegate
Mutuc (former Executive Secretary and Ambassador), Delegate Father Pacifico Ortiz, Delegate
Ceferino Padua (lawyer of former Senator Sergio Osmeña, Jr.), Delegate Jose Ma. Paredes
(former Justice of the Supreme Court), Delegate Godofredo Ramos (veteran legislator),
Delegate Sinco (former UP President and an authority on Constitutional Law), Delegate Serrano
(former Secretary of Foreign Affairs), Delegate Sumulong (former Congressman), Delegate
Sinsuat (former Member of the Cabinet), Delegate Domingo Veloso (former Speaker
Protempore of the House of Representatives), Delegate Concordia(former Congressman), and
Delegate Fernandez.
The foregoing, in our humble opinion, clearly show:
a) That when the Delegates to the Constitutional Convention voted on the Transitory Provisions,
they were aware of the fact that under the same, the incumbent President was given the
discretion as to when he could convene theinterim National Assembly; it was so stated plainly
by the sponsor, Delegate Yaneza; as a matter of fact, the proposal that it be convened
"immediately", made by Delegate Pimentel (V), was rejected; and
b) That the incumbent President, or President Marcos to be more specific, was to continue in
the office as President with triple powers, upon and even after the ratification of the New
Constitution (January 17, 1973), and until the election of the interim President and interim Prime
Minister (which has not taken place even up to now), and even after December 30, 1973 when
the term of office of the incumbent President would have expired under the 1935 Constitution.
Hence, the incumbent President continued and continues to be the constitutional and therefore
de jurePresident of our country.
Subsequent events proved the wisdom of the decision of the Convention to give the President a
wide discretion when to convene the interim National Assembly.
a) For although the peace and order condition of the country has improved, it suffered a relapse.
The rebellion had not been completely quelled. Only last January 29, 1975, for instance, the
newspapers carried the report that according to President Marcos — "Muslim insurgents had
broken a truce in Mindanao and Sulu resulting in a fresh outbreak of hostilities and in heavy
casualties." ... "Muslim secessionists ... had taken over three towns in Mindanao and Sulu." ...
"An Armed Forces contingent of 42 men, including three officers and the battalion commander,
were wiped out in a surprise raid."
b) The oil crises which brought about worldwide inflation, recession and depression, created
problems which, according to economic experts, can be solved effectively only with the
President exercising legislative powers. A National Assembly would take a longer period of time
to be able to pass the necessary legislation to cope with this worsening economic situation.
c) And what is most important is that in addition to the criticisms levelled in the Convention
against the membership of the interim National Assembly, the people themselves expressed
their disfavor against the interim Assembly by voting against its immediate convening when they
ratified the Constitution on January 10-15, 1973. In the July 24, 1973 referendum, the
Barangays reiterated their decision of January, 1973 to suspend the convening of the
interimNational Assembly. And in connection with the forthcoming February 27, 1975
referendum, many members of thisinterim National Assembly themselves asked that the
question of whether or not the assembly should immediately be convened be eliminated, as in
fact it was eliminated, because the people had already decided against the immediate
convening of the interim Assembly.
Perhaps, it was a blessing in disguise that before this interim National Assembly could be
convened, it has been "fiscalized" in advance be our people. The people apparently have
expressed their distrust of this interim Assembly. This has become a standing challenge so that
when this interim Assembly is finally convened, its members may discharge their duties and
responsibilities in such a manner as to rebut successfully the basis for the opposition of the
people to its being convened in the meantime.
I have adverted to the proceedings of the Constitutional Convention because it supports the
literal interpretation of the Constitution which I now wish to make. The wording of the New
Constitution is, I believe, clear. Considering the condition in which the country was at the time
they approved the draft of the Constitution, it would have been unthinkable for the Constitutional
Convention not to have provided for a continuity in the office of the Chief Executive.
It is equally unthinkable 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 law-making powers, there would be paralyzation of the entire governmental
machinery. Such an interpretation of the Transitory Provisions is so absurd it should be rejected
outright.
The original wording of Article XVII, Section 3(2) was that "all proclamations, orders, decrees,
instructions and acts promulgated, issued or done by the present administration are hereby
ratified and confirmed as valid." The words "ratified and confirmed" had been changed into
"shall be part of the law of the land," because under the first clause, it would imply that the
incumbent President did not have the authority to issue the proclamations, orders, decrees,
instructions and acts referred to. The Convention conceded that the President had that power;
and that is the reason why the phrase "shall be part of the law of the land" was the one finally
used.
Parenthetically, the Constitutional Convention itself recognized expressly the legislative power
of the incumbent President to enact an appropriation law when it asked and the same was given
by the incumbent President additional funds at the time when there was already martial law.
I wish to add that this legislative power of the President under martial law should not be limited
to the legislative power under the old classical concept of martial law rule. For the modern
concept of martial law rule includes not only the power to suppress invasion, insurrection or
rebellion and imminent danger thereof, but also to prevent their resurgence by the removal of
the causes which gave rise to them; in a word, the reform of our society.
In the speech that I delivered as a Delegate from Laguna in the Constitutional Convention in its
plenary session of October 20, 1972, I stated my firm conviction that President Marcos would
want to go down in history as a good President. This was not only a belief but a challenge to
him as well; and I am glad that subsequent events proved the correctness of my stand. In one of
his books, he himself said:
Moreover, we have embarked upon the experiment with the full knowledge that its
outcome will depend on most of us, not just a few who are managing a "command
society." The misgivings are large; the most outstanding is the fear of a powerful few
holding the many in subjection. But this fear misses the particularity of Philippine martial
law; it cannot and not exist without the clear and not manipulated consent of the
governed. Our people will accept only sacrifices which are justifiable to them.
It is more than a homily to assert that the New Society is not a promised land that patiently
awaits our arrival. More than a place in time or space, the New Society is a vision in our minds:
this can be realized only through the strength of our resolution.
I am mindful of the fact that historically authoritarian regimes tend to outlive their justification. I
do not intend to make a permanent authoritarianism as my legacy to the Filipino people. It is
sufficiently clear to them, I believe, that martial law is an interlude to a new society, that it is, in
sum, a Cromwellian phase in our quest for a good and just society. Certainly the enterprise is
worth a little sacrifice. (Marcos, The Democratic Revolution in the Philippines, 217-218, [1974]).
And in his speech before government elective officials of Bulacan last January 29, 1975 as
reported in the newspapers of last January 30, 1975, he solemnly said that should the coming
referendum fail to give him a vote of confidence, he would call the interim National Assembly to
session and that more than that, he would ask the Assembly to immediately fix the date for
elections of the members of the National Assembly; and that in such a case, he would run in his
district for a seat in the Assembly.
And so, it is now up for the people to speak in the coming February 27, 1975 referendum. The
information campaign should now go in full gear. The Commission on Elections should
emphasize the freedom of debate during the campaign; it should emphasize the freedom of the
people to express themselves not only in the debates but more so as they cast their ballots, by
safeguarding the secrecy of the ballot. And the Commission should redouble its efforts to assure
the people that there will be a true, correct and accurate reading of the ballots, counting of the
votes, and a report of the results of the referendum.
IN VIEW OF ALL THE FOREGOING, I repeat my concurrence in the decision of this Court and
in the separate opinions of Justices Castro and Barredo. The petition should thus be dismissed,
without costs.
TEEHANKEE, J., concurring and dissenting:
In concur with the main opinion insofar as it recognizes President Ferdinand E. Marcos as the
"incumbent President" and head of government who is vested with authority under Article XVII,
section 3 (1) of the Transitory Provisions of the 1973 Constitution to "continue to exercise his
powers and prerogatives under the 1935 Constitution and the powers vested in the President
and Prime Minister under this Constitution."
I am constrained, however, to dissent from the remaining portion thereof which dismisses the
petition, on the basis of serious constitutional grounds as briefly expounded hereinafter.
1. It cannot be gainsaid that the single most important change effected by the 1973 Constitution
is the change of our system of government from presidential to parliamentary wherein the
legislative power is vested in a National Assembly 1 and the Executive Power is vested in the
Prime Minister who "shall be elected by a majority of all the members of the National Assembly
from among themselves." 2 The President who is likewise elected by a majority vote of all the
members of the National Assembly from among themselves "shall be the symbolic head of
state." 3
To carry out the "orderly transition from the presidential to the parliamentary system," section 1
of the Transitory Provisions decreed that:
SECTION 1. There shall be an interim National Assembly which shall exist immediate
upon the ratification of this Constitution and shall continue until the Members of the
regular National Assembly shall have been elected and shall have assumed office
following an election called for the purpose by the interim National Assembly. Except as
otherwise provided in this Constitution, the interim National Assembly shall have the
same powers and its Members shall have the same functions, responsibilities, rights,
privileges, and disqualifications as the regular National Assembly, and the Members
thereof. (Art. XVII)
Section 2 of the Transitory Provisions provides for the members of the interim National
Assembly. The Solicitor General stated at the hearing that the interim National Assembly came
into existence after the proclamation on January 17, 1973 of the ratification of the Constitution
per Proclamation No. 1102 when the members thereof took their oath of office and qualified
thereto in accordance with the cited section and continues in existence at the present time
without having been convened.
Petitioners raise the question as to the scheduled referendum called for February 27, 1975 that
the calling of a referendum and the appropriation of funds therefor are essentially legislative
acts while the transitory powers and prerogatives vested in President Marcos until the election
of the interim Prime Minister and interim President under section 3 (1) of the Transitory
Provisions are executive and not legislative powers, since the powers of the President under the
1935 Constitution and those of the Prime Minister under the 1973 Constitution are essentially
executive powers; more so, with respect to the powers of the President under the 1973
Constitution which are symbolic and ceremonial.
While the Solicitor General has cited the President's powers under martial law and under
section 3 (2) of the Transitory Provisions 4 as vesting him with Šlegislative powers, there is
constitutional basis for the observation that his legislative and appropriation powers under
martial law are confined to the law of necessity of preservation of the state which gave rise to its
proclamation 5 (including appropriations for operations of the government and its agencies and
instrumentalities).
Rossiter, as extensively cited by Solicitor General, has thus stressed that "the measures
adopted in the prosecution of a constitutional dictatorship should never be permanent in
character or effect. ... The actions directed to this end should therefore be provisional. ...
Permanent laws, whether adopted in regular or irregular times are for parliaments to enact," and
that "a radical act of permanent character, one working lasting changes in the political and
social fabric (which) is indispensable to the successful prosecution of the particular
constitutional dictatorship ... must be resolutely taken and openly acknowledged [as exemplified
by U.S. President Lincoln's emancipation proclamation] ... Nevertheless, it is imperative that any
action with such lasting effects should eventually receive the positive approval of the people or
of their representatives in the legislature." 6
Even from the declared Presidential objective of using Martial Law powers to institutionalize
reforms and to remove the causes of rebellion, such powers by their very nature and from the
plain language of the Constitution 7 are limited to such necessary measures as will safeguard
the Republic and suppress the rebellion (or invasion) and measures directly connected with
removing the root causes thereof, such as the tenant emancipation proclamation. 8 The concept
of martial law may not be expanded, as the main opinion does, to cover the lesser threats of
"worldwide recession, inflation or economic crisis which presently threatens all nations" 9 in
derogation of the Constitution.
On the other hand, those legislative powers granted in the cited section 3 (2), known as the
validating provision which validated the President's acts and decrees after the proclamation of
martial law up to the ratification of the Constitution are limited to modifying, revoking or
superseding such validated acts and decrees done or issued prior to the proclaimed ratification,
since section 7 of the Transitory Provisions 10 expressly reserves to the National Assembly the
legislative power to amend, modify or repeal "all existing laws not inconsistent with this
Constitution."
The question is thus reduced as to whether now after the lapse of two years since the adoption
of the 1973 Constitution, the mandate of section 3 (1) of the Transitory Provisions for the
convening, of the existing interimNational Assembly should be implemented — not for purposes
of an action of mandamus which cannot be availed of because of the separation of powers —
but for the present action of prohibition against respondents officials which asserts that the
questioned referendum comes within the constitutional domain of the interim National Assembly
and that after the coming into "immediate existence of the interim National Assembly upon the
proclamation of ratification of the Constitution, the "initial convening" thereof with the election of
the interim Speaker and the election of the interim President and the interim Prime Minister
should have followed as a matter of course. The cited provision reads:
SEC 3. (1) 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 untilhe calls upon the interim National
Assembly to the elect the interim President and the interim Prime Minister, who shall
then exercise their respective powers vested by this Constitution. (Art. XVII)
2. The above quoted pertinent provisions indicate an affirmative answer. It is axiomatic that the
primary task in constitutional construction is to ascertain and assure the realization of the
purpose of the framers and of the people in the adoption of the Constitution and that the courts
may not inquire into the wisdom and efficacy of a constitutional or statutory mandate.
Where the language used is plain and unambiguous, there is no room for interpretation. "It is
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." 11
The mandate of section 1 of the Transitory Provisions that the interim National Assembly shall
"exist immediatelyupon the ratification of this Constitution" calls for its coming into existence
"right away" as conceded by respondents at the hearing. Likewise, as affirmed by the Solicitor
General, its members as provided in section 2 duly took their oath of office and qualified thereto,
upon the proclamation of ratification. The clear import of section 3 in order to give meaning and
effect to the creation and "immediate existence" of the interim National Assembly is that the
incumbent President shall then proceed to "initially (i.e. "in the first place: at the beginning") 12
convene" it and preside over its sessions until the election of the interim Speaker after which he
calls for the election of the interim President and theinterim Prime Minister "who shall then
exercise their respective powers vested by this Constitution." (The "incumbent President" then
bows out and is succeeded by the Prime Minister who may of course be himself).
This view is further strengthened by the expectations aired in the debates of the 1971
Constitutional Convention that a parliamentary government would be more responsible and
responsive to the people's needs and aspirations. Thus, in section 5 of the Transitory Provision,
the interim National Assembly was charged with the mandate to "give priority to measures for
the orderly transition from the presidential to the parliamentary system, the reorganization of the
Government the eradication of graft of and corruption, the effective maintenance of peace and
order, the implementation of declared agrarian reforms, the standardization of compensation of
government employees, and such other measures as shall bridge the gap between the rich and
the poor" — urgent and long-lasting measures which the President has single-handedly
confronted up to now.
3. The manifestation of the Solicitor General that the schedule referendum is merely
consultative and thus includes the participation of voters below 18 years of age but at least 15
years old (who are not qualified enfranchised voters under Article VI on suffrage of the 1973
Constitution which decrees a minimum age of 18 years for qualified voters) adds weight to the
view that the existing interim National Assembly be now convened and perform its constitutional
functions as the legislative authority. From the very nature of the transitory provision which
created it, its existence must likewise be interim, i.e. temporary provisional, of passing and
temporary duration (as opposed to permanent and the regular institutions provided for in the first
15 Articles of the Constitution) until after it shall have reapportioned the Assembly seats 13 and
called for the election of the members of the regular National Assembly. 14 The convening of the
interim National Assembly with its cross-section of knowledgeable representatives from all over
the country was obviously hopefully conceived to serve (more than consultative referendums)to
apprise the President of the people's and their constituencies' views as well as to assist him as
mandated by the Constitution in the enactment of priority measure to achieve fundamental and
far-reaching reforms.
4. While it has been advanced that the decision to defer the initial convocation of the interim
National Assembly was supported by the results of the referendum in January, 1973 when the
people voted against the convening of theinterim National Assembly for at least seven years, 15
such sentiment cannot be given any legal force and effect in the light of the State's admission at
the hearing that such referendums are merely consultative and cannot amend the Constitution
or any provision or mandate thereof such as the Transitory Provisions which call for the
"immediate existence" and "initial convening" of the interim National Assembly to "give priority to
measures for the orderly transition from the presidential to the parliamentary system" and the
other urgent measures enumerated in section 5 thereof. 16
This seems self-evident for the sovereign people through their mutual compact of a written
constitution have themselves thereby set bounds to their own power, as against the sudden
impulse of mere and fleeting majorities,17 and hence have provided for strict adherence with the
mandatory requirements of the amending process through a fair and proper submission at a
plebiscite, with sufficient information and full debate to assure intelligent consent or rejection. 18
5. Finally, the imposition of penal sanctions of imprisonment and fine upon the citizens who fail
to register and vote in the scheduled referendum is open to serious constitutional question. It
seems clear that the calling of "consultative referendum" is not provided for nor envisaged in the
Constitution as the appropriate vehicle therefor is provided through the interim and regular
National Assemblies. It should perhaps be reexamined whether the mandate of the Constitution
that "it shall be the obligation of every citizen qualified to vote to register and cast his vote" (at
elections of members of the National Assembly and elective local officials and at plebiscites, as
therein provided for) and the criminal penalties imposed in the questioned decrees should be
deemed applicable to such extra-constitutional consultative referendums wherein non-qualified
voters (the 15-year olds up to below 18) are asked to participate.
MUÑOZ PALMA, J., concurring and dissenting:
The views I express in this separate opinion will briefly explain my position on the principal
issues posed in this Petition for Prohibition.
1. President Ferdinand E. Marcos and no other is the person referred to as "incumbent
President" in Article XVII to which we shall refer for short as the Transitory Provisions of the
1973 Constitution. That fact is beyond doubt because at the time the draft of the new
Constitution was being prepared and when it was finally signed by the delegates to the 1971
Constitutional Convention on November 30, 1972, it was President Marcos who was holding the
position of President of the Philippines.
2. As such incumbent President, President Marcos was vested by Section 3(1) of the Transitory
Provisions with constitutional authority to continue as President of the Philippines during the
transition period contemplated in said Article XVII that is, until the interim President and the
interim Prime Minister shall have been elected by the interimNational Assembly who shall then
exercise their respective powers vested by the new Constitution, after which the office of the
incumbent President ceases. During that transition period, President Marcos was given
extraordinary powers consisting of the powers and prerogatives of the President under the 1935
Constitution, and the powers vested in the President and the Prime Minister under the 1973
Constitution. 1
3. Aside from the vest executive powers granted to the incumbent President as indicated above,
he was granted under Section 3(2) of the same Transitory Provisions legislative powers, in the
sense, that all proclamations, orders, decrees, instructions, and acts which were promulgated,
issued, or done by the incumbent President before the ratification of the Constitution were
declared part of the law of the land, to remain valid, legal, binding or effective even after the
lifting of martial law or the ratification of the Constitution, unless modified, revoked or
superseded by subsequent proclamations, etc., by the incumbent President or unless expressly
and explicitly modified or repealed by the regular National Assembly. As to, whether or not, this
unlimited legislative power of the President continue to exist even after the ratification of the
Constitution is a matter which I am not ready to concede at the moment, and which at any rate I
believe is not essential in resolving this Petition for reasons to be given later. Nonetheless, I
hold the view that the President is empowered to issue proclamations, orders, decrees, etc. to
carry out and implement the objectives of the proclamation of martial law be it under the 1935 or
1973 Constitution, and for the orderly and efficient functioning of the government, its
instrumentalities, and agencies. This grant of legislative power is necessary to fill up a vacuum
during the transition period when the interim National Assembly is not yet convened and
functioning, for otherwise, there will be a disruption of official functions resulting in a collapse of
the government and of the existing social order.
4. Because the grant of vast executive and legislating powers to the incumbent President will
necessarily, result in what the petitioners call a one-man rule as there is a concentration of
power in one person, it is my opinion that it could not have been the intent of the framers of the
new Constitution to grant to the incumbent President an indefinite period of time within which to
initially convene the interim National Assembly and to set in motion the formation of the
Parliamentary form of government which was one of the purposes of adopting a new
Constitution. I believe that the interim National Assembly came automatically into existence
upon the ratification of the 1973 Constitution. As a matter of fact, from the submission of the
Solicitor General, it appears that many if not all of those entitled to become members of the
interim National Assembly have opted to serve therein and have qualified thereto in accordance
with the requirements of Section 2 of the Transitory Provisions. 2
We cannot, therefore, reasonably construe the absence of a specific period of time for the
President to initially convene the interim Assembly as placing the matter at his sole pleasure
and convenience for to do so would give rise to a situation in which the incumbent President
could keep the intent National Assembly in suspended animation and prevent it from becoming
fully operational as long as he pleases. This would violate the very spirit and intent of the 1973
Constitution more particularly its Transitory Provisions to institute a form of government, during
the transition period, based upon the fundamental principle of the "separation of powers," with
its checks and balances, by specifically providing that there shall exist immediately upon the
ratification of the 1973 Constitution an interimNational Assembly in which legislative power shall
exercise all the powers and prerogatives which are executive in character, and that the judicial
power shall continue to be vested in the Judiciary existing at the time of the coming into force
and effect of the 1973 Constitution. The situation would also render nugatory the provisions of
Section 5 of the Transitory Provisions which assign to the interim National Assembly a vital role
to perform during the transition period. 3
While it is true that the convening of the interim National Assembly cannot be said to be simply
at the pleasure and convenience of the President, however, the matter is one addressed to his
sound discretion and judgment for which he is answerable alone to his conscience, to the
people he governs, to posterity, and to history.
5. Coming now to the particular problem of the coming referendum on February 27, 1975, it is
my view that the act of the President in calling such a referendum is not really in the nature of a
legislative act which violates the present Constitution. I do not see any prohibition in the
Constitution for the Chief Executive or the President to consult the people on national issues
which in his judgment are relevant and important. I use the word "consult" because in effect the
measure taken by the President is nothing more than consultative in character and the mere
fact that such measure or device is called a referendum in the Presidential Decrees in question
will not affect nor change in any manner its true nature which is simply a means of assessing
public reaction to the given issues submitted to the people for their consideration. Calling the
people to a consultation is, we may say, derived from or within the totality of the executive
power of the President, and because this is so, it necessarily follows that he has the authority to
appropriate the necessary amount from public funds which are subject to his executive control
and disposition to accomplish the purpose.
6. I am constrained to agree with petitioners that a referendum held under a regime of martial
law can be of no far-reaching significance because it is being accomplished under an
atmosphere of climate of fear. There can be no valid comparison between a situation under
martial rule and one where the privilege of the writ of habeas corpus is suspended, as
discussed in the Opinion of Justice Makasiar, because the former entails a wider area of
curtailment and infringement of individual rights, such as, human liberty, property rights, rights of
free expression and assembly, protection against unreasonable searches and seizures, liberty
of abode and of travel, etc. 4
7. Finally, whatever maybe the totality of the answers given to the proposed referendum
questions on local government will be of no real value to the President because under Article XI,
Section 2, 1973 Constitution, it is the National Assembly which is empowered to enact a local
government code, and any change in the existing form of local government shall not take effect
until ratified by the majority of the votes cast in a plebiscite called for the purpose, all of which
cannot be complied with for the simple reason that for the present there is no National Assembly.
Moreover, any vote given on this matter cannot be truly intelligent considering the vagueness of
the question as drafted and the short period of time given to the citizenry to study the so-called
manager or commission type of local government being submitted to the voters.
8 In conclusion, if I concur in the dismissal of the Petition for prohibition it is for the simple
reason that I believe that calling a referendum of this nature is a valid exercise of executive
power not prohibited by the Constitution as discussed in number 5 of this Opinion.
Footnotes
FERNANDO, J., CONCURRING:
1 According to Article II, Section 1 of the present Constitution: "The Philippines is a republican
state. Sovereignty resides in the people and all government authority emanates from them."
There is here a reiteration of Article II, Section 1 of the 1935 Constitution.
2 Respondent's comment, 6.
3 Tañada v. Cuenco, 103 Phil. 1051 (1957).
4 Cf. Angara v. Electoral Commission, 63 Phil. 139 (1936).
5 Respondents' Comment, 5.
6 Standing to Secure Judicial Review, 74 Harvard Law Rev. 1265 (1961).
7 Ibid, 1266. Cf. Berger Standing to Sue in Public Actions, 78 Yale Law Journal 816 (1969).
8 110 Phil. 331 (1960).
9 65 Phil. 56 (1937).
10 262 US 447 (1923).
11 Respondents' Comment, 5.
12 391 US 83 (1968).
13 Ibid, 92-95.
14 Cf. Tan v. Macapagal, L-34161,, February 29, 1972, 43 SCRA 677.
15 Cf. Lerner, Ideas Are Weapons, 470 (1939).
16 Cf. Bryn-Jones Toward a Democratic New Order 23 (1945).
17 69 Phil. 199 (1939).
18 Ibid, 641.
19 319 US 624 (1943).
20 Ibid, 641.
21 Javellana v. The Executive Secretary, L-36142, March 31, 1973, 50 SCRA 30.
22 Ibid, 327-328. The works cited are Laski, Grammar of Politics, 4th ed., 34 (1937); McIver the
Web of Government, 84 (1947); and Corwin, The Higher Law Background of American
Constitutional Law, in I Selected Essays on Constitutional Law 3 (1938).
23 L-34150, October 16, 1971, 41 SCRA 702.
24 Ibid. 740-741.
25 44 SE 754 (1903).
26 Ibid. Cf. Miller v. Johnson, 92 Ky. 589, 18 SW 522 (1892); Bott V. Wurts 40 Atlantic, 740
(1898); Arie v. State, 23 Okl. 166 (1909); Hammond v. Clark, 136 Ga. 313 (1911); Taylor v. King,
130 A. 407 (1925); Wheeler v. Board of Trustees, 37 SE 322 (1946).
27 L-35925, January 22, 1973, 49 SCRA 105.
28 Ibid, 159.
29 Ibid.
30 L-35546, September 17, 1974, 59 SCRA 183.
31 Ibid, 300.
32 Petition, Annex C. The other two members proposed are the President of the Integrated Bar,
former Justice J.B.L. Reyes, whose reputation for probity and integrity is legendary, as
Chairman, and another retired member of this Court.
ANTONIO, J., CONCURRING:
1 John Locke called upon the English doctrine of prerogative to cope with the problem of
emergency. He was of the view, that in times of danger to the nation, positive laws set down by
the legislative might be inadequate or even a fatal obstacle to the promptness of action
necessary to avert catastrophe. "In these situations the Crown retained a prerogative "power to
act according to discretion for the public good, without the prescription of the law and
sometimes even against it." " The prerogative "can be nothing but the people's permitting their
rulers to do several things of their own free choice where the law is silent, and sometimes too
against the direct letter of the law, for the public good and their acquiescing in it when so done."
The prerogative was therefore exercisable only for the public good. Rousseau assumed that, in
time of emergency, there is need for temporary suspension of democratic processes of
government. Contemporary political theorists observed that in response to the problems posed
by an emergency, constitutional democracies have employed constitutional dictatorship. The
"President's power as Commander-in-Chief", wrote Corwin, "has been transformed from a
simple power of military command to a vast reservoir of indeterminate powers in time of
emergency". (Corwin, The President: Office and Powers, pp. 312, 318, 1948). Frederick M.
Watkins, who made a classic study of the Weimar experience with emergency powers, places
his real faith in a scheme of "Constitutional dictatorship" provided "it serves to protect
established institutions from the danger of permanent injury in a period of temporary emergency,
and is followed by a prompt return to the previous forms of political life." Clinton L. Rossiter, on
the basis of the historical experience of Great Britain, France, Weimar Germany and the United
States, adverts to the scheme of "Constitutional dictatorship" as solution to the vexing problem
presented by emergency. Charles H. McIlwain clearly recognized the need to repose adequate
power in government during emergency. "And in discussing the meaning of constitutionalism he
insisted that the historical and proper test of constitutionalism was the existence of adequate
processes for keeping government responsible. He refused to equate constitutionalism with the
enfeebling of government by an exaggerated emphasis upon separation of powers and
substantive limitations on governmental powers." (Smith & Cotter: Powers of the President
During Crisis, 1972 Ed.)
2 L-36142, L-36164, L-36165, L-36236, and L-36283, 50 SCRA 30-392. This was concurred in
by Justices Barredo, Makasiar and Esguerra.
3 Ibid., 361-392.
4 59 SCRA 183; Separate opinion of Justice Barredo, Ibid., p. 322, Separate opinion of Justice
Antonio with the concurrence of Justices Makasiar, Fernandez and Aquino, Ibid., p. 460;
Separate opinion of Justice Fernandez, Ibid., p. 522.
5 "The democracy of Rousseau is also intolerant and absolutist, in that it hands over the
individual completely to the community, refusing to recognize the citizen's right to freedom; in
this respect it sets itself in opposition to the democracy of the French Revolution, which
proclaimed and took under its protection the Rights of Man. Even Bonapartism, so far as it is
supported by the people and so far as the latter has not resigned its sovereignty, can appear as
democracy; and consequently a Caesar can function as incarnation and official representative
of his people as a whole.
"In the same way it is possible to have absolutist and authoritarian democracies which may bear
a conservative, reactionary, collectivist or anti- constitutional character, according to the
circumstances." (Gerhard Leibholz, Politics and Law, 1965 Ed., pp. 28-29.)
6 Ibid., p. 29.
7 Scott Buchanan, So Reason Can Rule, The Constitution Revisited.
8 Joseph Kallenbach, The Presidency and the Constitution.
FERNANDEZ, J, CONCURRING:
1 Session of the entire Convention, not only of any of its Committees.
2 At the time when martial law was already in effect, the same having been proclaimed on
September 21, 1972.
TEEHANKEE, J., CONCURRING AND DISSENTING:
1 Art. VIII, sec. 1, 1973 Constitution.
2 Art. IX, secs. I and 3, idem.
3 Art. VII secs. 1 and 2, idem.
4 "(2) 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, legal,
binding, andeffective 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 theincumbent President, or unless expressly and explicitly modified or repealed
by the regular National Assembly." (Art. XVII, sec. 3)
5 "As necessity creates the rule, so it limits its duration."
6 Solicitor General's Comment, at pp. 24-26, citing Constitutional Dictatorship, 1948 ed. by
Clinton Rossiter, 1948 ed.
7 Article IX, sec. 12, 1973 Constitution Martial Law provision.
8 P.D. No. 27, Oct. 21, 1972 and amendatory decrees.
9 Main opinion, at page 5.
10 "SEC. 7. All existing laws not inconsistent with this Constitution shall remain operative
untilamended, modified, or repealed by the National Assembly." (Art. XVII)
11 J.M. Tuason & Co., Inc. vs. LTC, 31 SCRA 413, 422-423, per Fernando, J.; emphasis
supplied.
12 Webster's Third Int. Dictionary.
13 Art. XVII, secs. 6.
14 Idem, sec. 1.
15 Main opinion, at page 9. See Proc. No. 1103, dated Jan. 17, 1973 wherein the President
proclaimed "that the convening of the interim National Assembly ... shall be suspended" on the
basis of the therein stated premise that "fourteen million nine hundred seventy six thousand five
hundred sixty-one (14,976,561) members of all the Barangays voted for the adoption of the
proposed Constitution, as against seven hundred forty-three thousand eight hundred sixty-nine
(743,869) who voted for its rejection; but a majority of those who approved the new Constitution
conditioned their votes on the demand that the interim National Assembly provided in its
Transitory Provisions should not be convened."
16 Supra, at page 5.
17 Cf. Duncan vs. McCall, 139 U.S. 449, 35 L. Ed. 219.
18 Cf. Tolentino vs. Comelec 41 SCRA 702 (Oct. 14, 1971) and cases cited.
MUÑOZ, PALMA, J., CONCURRING AND DISSENTING:
1 Article XVII: Sec. 3(1) The incumbent President of the Philippines shall initially convene the
interim National Assembly and shall preside over its session 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 that powers vested in the President and the Prime
Minister under this Constitution until he calls upon the interim National Assembly to elect the
interim President and the interim Prime Minister, who shall then exercise their respective
powers vested by this Constitution.
2 Ibid, Section 2. The Members of the interim National Assembly shall be the incumbent
President and Vice-President of the Philippines, those who served as President of the nineteen
hundred and seventy-one Constitutional Convention, those Members of the Senate and the
House of Representatives who shall express in writing to the Commission on Elections within
thirty days after the ratification of this Constitution their option to serve therein, and those
Delegates to the nineteen hundred and seventy-one Constitutional Convention who have opted
to serve therein by voting affirmatively for this Article. They may take their oath of office before
and officer authorized to administer oath and qualify thereto, after the ratification of this
Constitution.
3 Ibid, Section 5. The interim National Assembly shall give priority to measures for the orderly
transition from the presidential to the parliamentary system, the reorganization of the
Government, the eradication of graft and corruption the effective maintenance of peace and
order, the implementation of declared agrarian reforms, the standardization of compensation of
Government employees, and such other measures as shall bridge the gap between the rich and
the poor.
4 Aquino, Jr. vs. Enrile, et al., and other cases, L-35546 and others, September 17, 1974 per
Opinion Muñoz Palma, J., 59 SCRA 183, 632.
2. Now as to the merits. The success of petitioners would signify that the referendum scheduled
for February 27 of this year will not take place. Believing as I do that the opportunity of the
people to give expression to their views is implicit in the fundamental principle that sovereignty
resides in them, I am unable to find sufficient merit in this petition. For all its logical and
plausible aspect, it still does not admit of doubt, in my mind at least, that a conclusion different
from that reached by this Court would be attended by deplorable consequences. For one thing,
it would impress with the stigma of illegality the viable procedure that under the stern realities of
the present is the only one in the horizon for ascertaining the desires of the people. Moreover,
under a republican regime, even under normal times, their role is limited to the choice of public
officials, thereafter to be held to accountability through their informed, even immoderate,
criticism. Now with this proposed referendum, they will be sounded out on what they think and
how they feel on matters of significance. Even assuming its consultative character, it remains at
the very least a step in the right direction. It may not go far enough, but there is progress of
sorts that hopefully may eventually lead to the goal of complete civilian rule. It stands to reason,
at least from my standpoint, that when people are thus allowed to express their wishes and
voice their opinions, the concept of popular sovereignty, more so under crisis conditions,
becomes impressed with a meaning beyond that of lyric liturgy or acrimonious debate devoid of
illumination. Nor is this to discern new waves of hope that may ultimately dissolve in the sands
of actuality. It is merely to manifest fidelity to the fundamental principle of the Constitution. It
dates back to the American Declaration of Independence of 1776. The government it sets up
derives its just powers from the consent of the governed. The basis of republicanism, to
paraphrase Lerner, is that the majority will shall prevail, the premise being that an ordinary
citizen, the common man, can be trusted to determine his political destiny. 15 Thereby, as Bryn-
Jones pointed out, the controlling power, the governmental authority in the language of the
Constitution, is vested in the entire aggregate of the community. 16 It is in that sense, as Justice
Laurel stressed in Moya v. Del Fierro, 17 that an "enfranchised citizen [is] a particle of popular
sovereignty and [is] the ultimate source of established authority." 18 There is reliance likewise to
this excerpt from the eloquent opinion of Justice Jackson in West Virginia State Board of
Education v. Barnette: 19 "There is no mysticism in the American concept of the State or of the
nature or origin of its authority. We set up government by consent of the governed, and the Bill
of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to
be controlled by public opinion, not public opinion by authority." 20 If that is true of the United
States, so should it be in our land. It caters to man's fundamental yearning for some degree of
participation in the process of reaching fateful decisions. While courts have to deal with the
necessities of their time, the idea should remain untarnished.
4. There is finally, according to petitioners, a deficiency that mars the proposed referendum. It
deserves serious consideration. It is their submission that under martial law, with people denied
their basic freedoms, particularly their freedoms of expression and assembly, it cannot be validly
held. In my concurring and dissenting opinion in Planas v. Commission on Elections 27 I express
the apprehension that voters cannot "freely register their will," as "dissent may be fraught with
unpleasant consequences." 28 Further: "While it is to be admitted that the Administration has
done its best to alleviate such a state of mind, I cannot in all honesty say, although I am
prepared to concede that I may labor under a sense of undue pessimism, that the momentum of
fear necessarily incident to such a regime has been reduced to a minimum." 29There is, I would
say, still that feeling of insecurity as to what the morrow may bring, not from high and
responsible officials, of course, but from those much lower in the ranks, whether in the armed
forces or in the civilian component. Abuses, in the nature of things, cannot be completely curbed.
In that sense, my misgivings are not unjustified. Nonetheless, I gain reassurance from the fact
that as I did admit in my concurring and dissenting opinion in Aquino v. Enrile, 30 "the Philippine
brand of martial law [is] impressed with a mild character." 31 There is by and large a high degree
of confidence in the capabilities and moderation of those entrusted with its implementation. To
cite only an instance, it is a rare and impressive tribute to the Judge Advocate General, Justice
Guillermo S. Santos of the Court of Appeals, that in a manifesto of reputable citizens both from
the clergy and the laity, with a number of civic and political leaders, the suggestion was made
that the conduct of the referendum should be under the auspices of a Committee of three with
him as one of the members. 32 I am not then in a position to press with the same degree of
conviction my original stand. I would not be justified though in making such a concession if the
constitutional rights to freedom of expression and the freedom of assembly may not be availed
of. They are once again enshrined in our Bill of Rights — and in the very same language. If the
Constitution is now fully in force, they must be allowed full operation. I do not deny that they are
not absolute in character, but the limitation is supplied by the clear and present danger test. Nor
do I deny that under emergency conditions, it is not unreasonable to enlarge the area of state
authority, to seek national cohesiveness, and to discourage dissent. What I cannot sufficiently
stress though is that dissent, even during such periods of stress, is not disloyalty, much less
subversion. Thus the citizens can invoke in the exercise of the freedoms of expression and of
assembly not the challenged decrees but their constitutional rights. Moreover, as thus construed
as they should be to avoid any taint of invalidity, they may be pulled back from the edge of the
constitutional precipice. It would follow, and that to my mind would be to the credit of the
Executive, that even in these trying and parlous times, there is adherence to a tolerant,
compassionate view of life.
Then there is the attack on the standing of petitioners, as vindicating at most what they consider
a public right and not protecting their rights as individuals. 5 This is to conjure the specter of the
public right dogma as an inhibition to parties intent on keeping public officials staying on the
path of constitutionalism. As was so well put by Jaffe: 6 "The protection of private rights is an
essential constituent of public interest and, conversely, without a well-ordered state there could
be no enforcement of private rights. Private and public interests are, both in a substantive and
procedural sense, aspects of the totality of the legal order." 7 Moreover, petitioners have
convincingly shown that in their capacity as taxpayers, their standing to sue has been amply
demonstrated. There would be a retreat from the liberal approach followed in Pascual v.
Secretary of Public Works, 8 foreshadowed by the very decision of People v. Vera 9 where the
doctrine was first fully discussed, if we act differently now. I do not think we are prepared to take
that step. Respondents, however, would hark back to the American Supreme Court doctrine in
Mellon v. Frothingham, 10with their claim that what petitioners possess "is an interest which is
shared in common by other people and is comparatively so minute and indeterminate as to
afford any basis and assurance that the judicial process can act on it." 11 That is to speak in the
language of a bygone era, even in the United States. For as Chief Justice Warren clearly
pointed out in the later case of Flast v. Cohen, 12 the barrier thus set up if not breached has
definitely been lowered. 13 The weakness of these particular defenses is thus quite apparent. 14
4. There is finally, according to petitioners, a deficiency that mars the proposed referendum. It
deserves serious consideration. It is their submission that under martial law, with people denied
their basic freedoms, particularly their freedoms of expression and assembly, it cannot be validly
held. In my concurring and dissenting opinion in Planas v. Commission on Elections 27 I express
the apprehension that voters cannot "freely register their will," as "dissent may be fraught with
unpleasant consequences." 28 Further: "While it is to be admitted that the Administration has
done its best to alleviate such a state of mind, I cannot in all honesty say, although I am
prepared to concede that I may labor under a sense of undue pessimism, that the momentum of
fear necessarily incident to such a regime has been reduced to a minimum." 29There is, I would
say, still that feeling of insecurity as to what the morrow may bring, not from high and
responsible officials, of course, but from those much lower in the ranks, whether in the armed
forces or in the civilian component. Abuses, in the nature of things, cannot be completely curbed.
In that sense, my misgivings are not unjustified. Nonetheless, I gain reassurance from the fact
that as I did admit in my concurring and dissenting opinion in Aquino v. Enrile, 30 "the Philippine
brand of martial law [is] impressed with a mild character." 31 There is by and large a high degree
of confidence in the capabilities and moderation of those entrusted with its implementation. To
cite only an instance, it is a rare and impressive tribute to the Judge Advocate General, Justice
Guillermo S. Santos of the Court of Appeals, that in a manifesto of reputable citizens both from
the clergy and the laity, with a number of civic and political leaders, the suggestion was made
that the conduct of the referendum should be under the auspices of a Committee of three with
him as one of the members. 32 I am not then in a position to press with the same degree of
conviction my original stand. I would not be justified though in making such a concession if the
constitutional rights to freedom of expression and the freedom of assembly may not be availed
of. They are once again enshrined in our Bill of Rights — and in the very same language. If the
Constitution is now fully in force, they must be allowed full operation. I do not deny that they are
not absolute in character, but the limitation is supplied by the clear and present danger test. Nor
do I deny that under emergency conditions, it is not unreasonable to enlarge the area of state
authority, to seek national cohesiveness, and to discourage dissent. What I cannot sufficiently
stress though is that dissent, even during such periods of stress, is not disloyalty, much less
subversion. Thus the citizens can invoke in the exercise of the freedoms of expression and of
assembly not the challenged decrees but their constitutional rights. Moreover, as thus construed
as they should be to avoid any taint of invalidity, they may be pulled back from the edge of the
constitutional precipice. It would follow, and that to my mind would be to the credit of the
Executive, that even in these trying and parlous times, there is adherence to a tolerant,
compassionate view of life.
2. Now as to the merits. The success of petitioners would signify that the referendum scheduled
for February 27 of this year will not take place. Believing as I do that the opportunity of the
people to give expression to their views is implicit in the fundamental principle that sovereignty
resides in them, I am unable to find sufficient merit in this petition. For all its logical and
plausible aspect, it still does not admit of doubt, in my mind at least, that a conclusion different
from that reached by this Court would be attended by deplorable consequences. For one thing,
it would impress with the stigma of illegality the viable procedure that under the stern realities of
the present is the only one in the horizon for ascertaining the desires of the people. Moreover,
under a republican regime, even under normal times, their role is limited to the choice of public
officials, thereafter to be held to accountability through their informed, even immoderate,
criticism. Now with this proposed referendum, they will be sounded out on what they think and
how they feel on matters of significance. Even assuming its consultative character, it remains at
the very least a step in the right direction. It may not go far enough, but there is progress of
sorts that hopefully may eventually lead to the goal of complete civilian rule. It stands to reason,
at least from my standpoint, that when people are thus allowed to express their wishes and
voice their opinions, the concept of popular sovereignty, more so under crisis conditions,
becomes impressed with a meaning beyond that of lyric liturgy or acrimonious debate devoid of
illumination. Nor is this to discern new waves of hope that may ultimately dissolve in the sands
of actuality. It is merely to manifest fidelity to the fundamental principle of the Constitution. It
dates back to the American Declaration of Independence of 1776. The government it sets up
derives its just powers from the consent of the governed. The basis of republicanism, to
paraphrase Lerner, is that the majority will shall prevail, the premise being that an ordinary
citizen, the common man, can be trusted to determine his political destiny. 15 Thereby, as Bryn-
Jones pointed out, the controlling power, the governmental authority in the language of the
Constitution, is vested in the entire aggregate of the community. 16 It is in that sense, as Justice
Laurel stressed in Moya v. Del Fierro, 17 that an "enfranchised citizen [is] a particle of popular
sovereignty and [is] the ultimate source of established authority." 18 There is reliance likewise to
this excerpt from the eloquent opinion of Justice Jackson in West Virginia State Board of
Education v. Barnette: 19 "There is no mysticism in the American concept of the State or of the
nature or origin of its authority. We set up government by consent of the governed, and the Bill
of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to
be controlled by public opinion, not public opinion by authority." 20 If that is true of the United
States, so should it be in our land. It caters to man's fundamental yearning for some degree of
participation in the process of reaching fateful decisions. While courts have to deal with the
necessities of their time, the idea should remain untarnished.
Then there is the attack on the standing of petitioners, as vindicating at most what they consider
a public right and not protecting their rights as individuals. 5 This is to conjure the specter of the
public right dogma as an inhibition to parties intent on keeping public officials staying on the
path of constitutionalism. As was so well put by Jaffe: 6 "The protection of private rights is an
essential constituent of public interest and, conversely, without a well-ordered state there could
be no enforcement of private rights. Private and public interests are, both in a substantive and
procedural sense, aspects of the totality of the legal order." 7 Moreover, petitioners have
convincingly shown that in their capacity as taxpayers, their standing to sue has been amply
demonstrated. There would be a retreat from the liberal approach followed in Pascual v.
Secretary of Public Works, 8 foreshadowed by the very decision of People v. Vera 9 where the
doctrine was first fully discussed, if we act differently now. I do not think we are prepared to take
that step. Respondents, however, would hark back to the American Supreme Court doctrine in
Mellon v. Frothingham, 10with their claim that what petitioners possess "is an interest which is
shared in common by other people and is comparatively so minute and indeterminate as to
afford any basis and assurance that the judicial process can act on it." 11 That is to speak in the
language of a bygone era, even in the United States. For as Chief Justice Warren clearly
pointed out in the later case of Flast v. Cohen, 12 the barrier thus set up if not breached has
definitely been lowered. 13 The weakness of these particular defenses is thus quite apparent. 14
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 115455 October 30, 1995
ARTURO M. TOLENTINO, petitioner,
vs.
THE SECRETARY OF FINANCE and THE COMMISSIONER OF INTERNAL REVENUE,
respondents.
G.R. No. 115525 October 30, 1995
JUAN T. DAVID, petitioner,
vs.
TEOFISTO T. GUINGONA, JR., as Executive Secretary; ROBERTO DE OCAMPO, as
Secretary of Finance; LIWAYWAY VINZONS-CHATO, as Commissioner of Internal Revenue;
and their AUTHORIZED AGENTS OR REPRESENTATIVES, respondents.
G.R. No. 115543 October 30, 1995
RAUL S. ROCO and the INTEGRATED BAR OF THE PHILIPPINES, petitioners,
vs.
THE SECRETARY OF THE DEPARTMENT OF FINANCE; THE COMMISSIONERS OF THE
BUREAU OF INTERNAL REVENUE AND BUREAU OF CUSTOMS, respondents.
G.R. No. 115544 October 30, 1995
PHILIPPINE PRESS INSTITUTE, INC.; EGP PUBLISHING CO., INC.; KAMAHALAN
PUBLISHING CORPORATION; PHILIPPINE JOURNALISTS, INC.; JOSE L. PAVIA; and
OFELIA L. DIMALANTA, petitioners,
vs.
HON. LIWAYWAY V. CHATO, in her capacity as Commissioner of Internal Revenue; HON.
TEOFISTO T. GUINGONA, JR., in his capacity as Executive Secretary; and HON. ROBERTO B.
DE OCAMPO, in his capacity as Secretary of Finance, respondents.
G.R. No. 115754 October 30, 1995
CHAMBER OF REAL ESTATE AND BUILDERS ASSOCIATIONS, INC., (CREBA), petitioner,
vs.
THE COMMISSIONER OF INTERNAL REVENUE, respondent.
G.R. No. 115781 October 30, 1995
KILOSBAYAN, INC., JOVITO R. SALONGA, CIRILO A. RIGOS, ERME CAMBA, EMILIO C.
CAPULONG, JR., JOSE T. APOLO, EPHRAIM TENDERO, FERNANDO SANTIAGO, JOSE
ABCEDE, CHRISTINE TAN, FELIPE L. GOZON, RAFAEL G. FERNANDO, RAOUL V.
VICTORINO, JOSE CUNANAN, QUINTIN S. DOROMAL, MOVEMENT OF ATTORNEYS FOR
BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. ("MABINI"), FREEDOM FROM
DEBT COALITION, INC., and PHILIPPINE BIBLE SOCIETY, INC. and WIGBERTO
TAÑADA,petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF FINANCE, THE COMMISSIONER OF
INTERNAL REVENUE and THE COMMISSIONER OF CUSTOMS, respondents.
G.R. No. 115852 October 30, 1995
PHILIPPINE AIRLINES, INC., petitioner,
vs.
THE SECRETARY OF FINANCE and COMMISSIONER OF INTERNAL REVENUE,
respondents.
G.R. No. 115873 October 30, 1995
COOPERATIVE UNION OF THE PHILIPPINES, petitioner,
vs.
HON. LIWAYWAY V. CHATO, in her capacity as the Commissioner of Internal Revenue, HON.
TEOFISTO T. GUINGONA, JR., in his capacity as Executive Secretary, and HON. ROBERTO B.
DE OCAMPO, in his capacity as Secretary of Finance, respondents.
G.R. No. 115931 October 30, 1995
PHILIPPINE EDUCATIONAL PUBLISHERS ASSOCIATION, INC. and ASSOCIATION OF
PHILIPPINE BOOK SELLERS, petitioners,
vs.
HON. ROBERTO B. DE OCAMPO, as the Secretary of Finance; HON. LIWAYWAY V. CHATO,
as the Commissioner of Internal Revenue; and HON. GUILLERMO PARAYNO, JR., in his
capacity as the Commissioner of Customs, respondents.
R E S O L U T I O N
MENDOZA, J.:
These are motions seeking reconsideration of our decision dismissing the petitions filed in these
cases for the declaration of unconstitutionality of R.A. No. 7716, otherwise known as the
Expanded Value-Added Tax Law. The motions, of which there are 10 in all, have been filed by
the several petitioners in these cases, with the exception of the Philippine Educational
Publishers Association, Inc. and the Association of Philippine Booksellers, petitioners in G.R. No.
115931.
The Solicitor General, representing the respondents, filed a consolidated comment, to which the
Philippine Airlines, Inc., petitioner in G.R. No. 115852, and the Philippine Press Institute, Inc.,
petitioner in G.R. No. 115544, and Juan T. David, petitioner in G.R. No. 115525, each filed a
reply. In turn the Solicitor General filed on June 1, 1995 a rejoinder to the PPI's reply.
On June 27, 1995 the matter was submitted for resolution.
I. Power of the Senate to propose amendments to revenue bills. Some of the petitioners
(Tolentino, Kilosbayan, Inc., Philippine Airlines (PAL), Roco, and Chamber of Real Estate and
Builders Association (CREBA)) reiterate previous claims made by them that R.A. No. 7716 did
not "originate exclusively" in the House of Representatives as required by Art. VI, §24 of the
Constitution. Although they admit that H. No. 11197 was filed in the House of Representatives
where it passed three readings and that afterward it was sent to the Senate where after first
reading it was referred to the Senate Ways and Means Committee, they complain that the
Senate did not pass it on second and third readings. Instead what the Senate did was to pass
its own version (S. No. 1630) which it approved on May 24, 1994. Petitioner Tolentino adds that
what the Senate committee should have done was to amend H. No. 11197 by striking out the
text of the bill and substituting it with the text of S. No. 1630. That way, it is said, "the bill
remains a House bill and the Senate version just becomes the text (only the text) of the House
bill."
The contention has no merit.
The enactment of S. No. 1630 is not the only instance in which the Senate proposed an
amendment to a House revenue bill by enacting its own version of a revenue bill. On at least
two occasions during the Eighth Congress, the Senate passed its own version of revenue bills,
which, in consolidation with House bills earlier passed, became the enrolled bills. These were:
R.A. No. 7369 (AN ACT TO AMEND THE OMNIBUS INVESTMENTS CODE OF 1987 BY
EXTENDING FROM FIVE (5) YEARS TO TEN YEARS THE PERIOD FOR TAX AND DUTY
EXEMPTION AND TAX CREDIT ON CAPITAL EQUIPMENT) which was approved by the
President on April 10, 1992. This Act is actually a consolidation of H. No. 34254, which was
approved by the House on January 29, 1992, and S. No. 1920, which was approved by the
Senate on February 3, 1992.
R.A. No. 7549 (AN ACT GRANTING TAX EXEMPTIONS TO WHOEVER SHALL GIVE
REWARD TO ANY FILIPINO ATHLETE WINNING A MEDAL IN OLYMPIC GAMES) which was
approved by the President on May 22, 1992. This Act is a consolidation of H. No. 22232, which
was approved by the House of Representatives on August 2, 1989, and S. No. 807, which was
approved by the Senate on October 21, 1991.
On the other hand, the Ninth Congress passed revenue laws which were also the result of the
consolidation of House and Senate bills. These are the following, with indications of the dates
on which the laws were approved by the President and dates the separate bills of the two
chambers of Congress were respectively passed:
1. R.A. NO. 7642
AN ACT INCREASING THE PENALTIES FOR TAX EVASION, AMENDING FOR THIS
PURPOSE THE PERTINENT SECTIONS OF THE NATIONAL INTERNAL REVENUE CODE
(December 28, 1992).
House Bill No. 2165, October 5, 1992
Senate Bill No. 32, December 7, 1992
2. R.A. NO. 7643
AN ACT TO EMPOWER THE COMMISSIONER OF INTERNAL REVENUE TO REQUIRE THE
PAYMENT OF THE VALUE-ADDED TAX EVERY MONTH AND TO ALLOW LOCAL
GOVERNMENT UNITS TO SHARE IN VAT REVENUE, AMENDING FOR THIS PURPOSE
CERTAIN SECTIONS OF THE NATIONAL INTERNAL REVENUE CODE (December 28, 1992)
House Bill No. 1503, September 3, 1992
Senate Bill No. 968, December 7, 1992
3. R.A. NO. 7646
AN ACT AUTHORIZING THE COMMISSIONER OF INTERNAL REVENUE TO PRESCRIBE
THE PLACE FOR PAYMENT OF INTERNAL REVENUE TAXES BY LARGE TAXPAYERS,
AMENDING FOR THIS PURPOSE CERTAIN PROVISIONS OF THE NATIONAL INTERNAL
REVENUE CODE, AS AMENDED (February 24, 1993)
House Bill No. 1470, October 20, 1992
Senate Bill No. 35, November 19, 1992
4. R.A. NO. 7649
AN ACT REQUIRING THE GOVERNMENT OR ANY OF ITS POLITICAL SUBDIVISIONS,
INSTRUMENTALITIES OR AGENCIES INCLUDING GOVERNMENT-OWNED OR
CONTROLLED CORPORATIONS (GOCCS) TO DEDUCT AND WITHHOLD THE VALUE-
ADDED TAX DUE AT THE RATE OF THREE PERCENT (3%) ON GROSS PAYMENT FOR
THE PURCHASE OF GOODS AND SIX PERCENT (6%) ON GROSS RECEIPTS FOR
SERVICES RENDERED BY CONTRACTORS (April 6, 1993)
House Bill No. 5260, January 26, 1993
Senate Bill No. 1141, March 30, 1993
5. R.A. NO. 7656
AN ACT REQUIRING GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS TO
DECLARE DIVIDENDS UNDER CERTAIN CONDITIONS TO THE NATIONAL GOVERNMENT,
AND FOR OTHER PURPOSES (November 9, 1993)
House Bill No. 11024, November 3, 1993
Senate Bill No. 1168, November 3, 1993
6. R.A. NO. 7660
AN ACT RATIONALIZING FURTHER THE STRUCTURE AND ADMINISTRATION OF THE
DOCUMENTARY STAMP TAX, AMENDING FOR THE PURPOSE CERTAIN PROVISIONS OF
THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED, ALLOCATING FUNDS FOR
SPECIFIC PROGRAMS, AND FOR OTHER PURPOSES (December 23, 1993)
House Bill No. 7789, May 31, 1993
Senate Bill No. 1330, November 18, 1993
7. R.A. NO. 7717
AN ACT IMPOSING A TAX ON THE SALE, BARTER OR EXCHANGE OF SHARES OF
STOCK LISTED AND TRADED THROUGH THE LOCAL STOCK EXCHANGE OR THROUGH
INITIAL PUBLIC OFFERING, AMENDING FOR THE PURPOSE THE NATIONAL INTERNAL
REVENUE CODE, AS AMENDED, BY INSERTING A NEW SECTION AND REPEALING
CERTAIN SUBSECTIONS THEREOF (May 5, 1994)
House Bill No. 9187, November 3, 1993
Senate Bill No. 1127, March 23, 1994
Thus, the enactment of S. No. 1630 is not the only instance in which the Senate, in the exercise
of its power to propose amendments to bills required to originate in the House, passed its own
version of a House revenue measure. It is noteworthy that, in the particular case of S. No. 1630,
petitioners Tolentino and Roco, as members of the Senate, voted to approve it on second and
third readings.
On the other hand, amendment by substitution, in the manner urged by petitioner Tolentino,
concerns a mere matter of form. Petitioner has not shown what substantial difference it would
make if, as the Senate actually did in this case, a separate bill like S. No. 1630 is instead
enacted as a substitute measure, "taking into Consideration . . . H.B.11197."
Indeed, so far as pertinent, the Rules of the Senate only provide:
RULE XXIX
AMENDMENTS
xxx xxx xxx
§68. Not more than one amendment to the original amendment shall be considered.
No amendment by substitution shall be entertained unless the text thereof is submitted in writing.
Any of said amendments may be withdrawn before a vote is taken thereon.
§69. No amendment which seeks the inclusion of a legislative provision foreign to the subject
matter of a bill (rider) shall be entertained.
xxx xxx xxx
§70-A. A bill or resolution shall not be amended by substituting it with another which covers a
subject distinct from that proposed in the original bill or resolution. (emphasis added).
Nor is there merit in petitioners' contention that, with regard to revenue bills, the Philippine
Senate possesses less power than the U.S. Senate because of textual differences between
constitutional provisions giving them the power to propose or concur with amendments.
Art. I, §7, cl. 1 of the U.S. Constitution reads:
All Bills for raising Revenue shall originate in the House of Representatives; but the
Senate may propose or concur with amendments as on other Bills.
Art. VI, §24 of our Constitution reads:
All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills
of local application, and private bills shall originate exclusively in the House of
Representatives, but the Senate may propose or concur with amendments.
The addition of the word "exclusively" in the Philippine Constitution and the decision to drop the
phrase "as on other Bills" in the American version, according to petitioners, shows the intention
of the framers of our Constitution to restrict the Senate's power to propose amendments to
revenue bills. Petitioner Tolentino contends that the word "exclusively" was inserted to modify
"originate" and "the words 'as in any other bills' (sic) were eliminated so as to show that these
bills were not to be like other bills but must be treated as a special kind."
The history of this provision does not support this contention. The supposed indicia of
constitutional intent are nothing but the relics of an unsuccessful attempt to limit the power of
the Senate. It will be recalled that the 1935 Constitution originally provided for a unicameral
National Assembly. When it was decided in 1939 to change to a bicameral legislature, it
became necessary to provide for the procedure for lawmaking by the Senate and the House of
Representatives. The work of proposing amendments to the Constitution was done by the
National Assembly, acting as a constituent assembly, some of whose members, jealous of
preserving the Assembly's lawmaking powers, sought to curtail the powers of the proposed
Senate. Accordingly they proposed the following provision:
All bills appropriating public funds, revenue or tariff bills, bills of local application, and
private bills shall originate exclusively in the Assembly, but the Senate may propose or
concur with amendments. In case of disapproval by the Senate of any such bills, the
Assembly may repass the same by a two-thirds vote of all its members, and thereupon,
the bill so repassed shall be deemed enacted and may be submitted to the President for
corresponding action. In the event that the Senate should fail to finally act on any such
bills, the Assembly may, after thirty days from the opening of the next regular session of
the same legislative term, reapprove the same with a vote of two-thirds of all the
members of the Assembly. And upon such reapproval, the bill shall be deemed enacted
and may be submitted to the President for corresponding action.
The special committee on the revision of laws of the Second National Assembly vetoed the
proposal. It deleted everything after the first sentence. As rewritten, the proposal was approved
by the National Assembly and embodied in Resolution No. 38, as amended by Resolution No.
73. (J. ARUEGO, KNOW YOUR CONSTITUTION 65-66 (1950)). The proposed amendment
was submitted to the people and ratified by them in the elections held on June 18, 1940.
This is the history of Art. VI, §18 (2) of the 1935 Constitution, from which Art. VI, §24 of the
present Constitution was derived. It explains why the word "exclusively" was added to the
American text from which the framers of the Philippine Constitution borrowed and why the
phrase "as on other Bills" was not copied. Considering the defeat of the proposal, the power of
the Senate to propose amendments must be understood to be full, plenary and complete "as on
other Bills." Thus, because revenue bills are required to originate exclusively in the House of
Representatives, the Senate cannot enact revenue measures of its own without such bills. After
a revenue bill is passed and sent over to it by the House, however, the Senate certainly can
pass its own version on the same subject matter. This follows from the coequality of the two
chambers of Congress.
That this is also the understanding of book authors of the scope of the Senate's power to concur
is clear from the following commentaries:
The power of the Senate to propose or concur with amendments is apparently without
restriction. It would seem that by virtue of this power, the Senate can practically re-write
a bill required to come from the House and leave only a trace of the original bill. For
example, a general revenue bill passed by the lower house of the United States
Congress contained provisions for the imposition of an inheritance tax . This was
changed by the Senate into a corporation tax. The amending authority of the Senate was
declared by the United States Supreme Court to be sufficiently broad to enable it to
make the alteration. [Flint v. Stone Tracy Company, 220 U.S. 107, 55 L. ed. 389].
(L. TAÑADA AND F. CARREON, POLITICAL LAW OF THE PHILIPPINES 247 (1961))
The above-mentioned bills are supposed to be initiated by the House of Representatives
because it is more numerous in membership and therefore also more representative of the
people. Moreover, its members are presumed to be more familiar with the needs of the country
in regard to the enactment of the legislation involved.
The Senate is, however, allowed much leeway in the exercise of its power to propose or concur
with amendments to the bills initiated by the House of Representatives. Thus, in one case, a bill
introduced in the U.S. House of Representatives was changed by the Senate to make a
proposed inheritance tax a corporation tax. It is also accepted practice for the Senate to
introduce what is known as an amendment by substitution, which may entirely replace the bill
initiated in the House of Representatives.
(I. CRUZ, PHILIPPINE POLITICAL LAW 144-145 (1993)).
In sum, while Art. VI, §24 provides that all appropriation, revenue or tariff bills, bills authorizing
increase of the public debt, bills of local application, and private bills must "originate exclusively
in the House of Representatives," it also adds, "but the Senate may propose or concur with
amendments." In the exercise of this power, the Senate may propose an entirely new bill as a
substitute measure. As petitioner Tolentino states in a high school text, a committee to which a
bill is referred may do any of the following:
(1) to endorse the bill without changes; (2) to make changes in the bill omitting or adding
sections or altering its language; (3) to make and endorse an entirely new bill as a
substitute, in which case it will be known as a committee bill; or (4) to make no report at
all.
(A. TOLENTINO, THE GOVERNMENT OF THE PHILIPPINES 258 (1950))
To except from this procedure the amendment of bills which are required to originate in the
House by prescribing that the number of the House bill and its other parts up to the enacting
clause must be preserved although the text of the Senate amendment may be incorporated in
place of the original body of the bill is to insist on a mere technicality. At any rate there is no rule
prescribing this form. S. No. 1630, as a substitute measure, is therefore as much an
amendment of H. No. 11197 as any which the Senate could have made.
II. S. No. 1630 a mere amendment of H. No. 11197. Petitioners' basic error is that they assume
that S. No. 1630 is an independent and distinct bill. Hence their repeated references to its
certification that it was passed by the Senate "in substitution of S.B. No. 1129, taking into
consideration P.S. Res. No. 734 and H.B. No. 11197," implying that there is something
substantially different between the reference to S. No. 1129 and the reference to H. No. 11197.
From this premise, they conclude that R.A. No. 7716 originated both in the House and in the
Senate and that it is the product of two "half-baked bills because neither H. No. 11197 nor S. No.
1630 was passed by both houses of Congress."
In point of fact, in several instances the provisions of S. No. 1630, clearly appear to be mere
amendments of the corresponding provisions of H. No. 11197. The very tabular comparison of
the provisions of H. No. 11197 and S. No. 1630 attached as Supplement A to the basic petition
of petitioner Tolentino, while showing differences between the two bills, at the same time
indicates that the provisions of the Senate bill were precisely intended to be amendments to the
House bill.
Without H. No. 11197, the Senate could not have enacted S. No. 1630. Because the Senate bill
was a mere amendment of the House bill, H. No. 11197 in its original form did not have to pass
the Senate on second and three readings. It was enough that after it was passed on first
reading it was referred to the Senate Committee on Ways and Means. Neither was it required
that S. No. 1630 be passed by the House of Representatives before the two bills could be
referred to the Conference Committee.
There is legislative precedent for what was done in the case of H. No. 11197 and S. No. 1630.
When the House bill and Senate bill, which became R.A. No. 1405 (Act prohibiting the
disclosure of bank deposits), were referred to a conference committee, the question was raised
whether the two bills could be the subject of such conference, considering that the bill from one
house had not been passed by the other and vice versa. As Congressman Duran put the
question:
MR. DURAN. Therefore, I raise this question of order as to procedure: If a House bill is
passed by the House but not passed by the Senate, and a Senate bill of a similar nature
is passed in the Senate but never passed in the House, can the two bills be the subject
of a conference, and can a law be enacted from these two bills? I understand that the
Senate bill in this particular instance does not refer to investments in government
securities, whereas the bill in the House, which was introduced by the Speaker, covers
two subject matters: not only investigation of deposits in banks but also investigation of
investments in government securities. Now, since the two bills differ in their subject
matter, I believe that no law can be enacted.
Ruling on the point of order raised, the chair (Speaker Jose B. Laurel, Jr.) said:
THE SPEAKER. The report of the conference committee is in order. It is precisely in
cases like this where a conference should be had. If the House bill had been approved
by the Senate, there would have been no need of a conference; but precisely because
the Senate passed another bill on the same subject matter, the conference committee
had to be created, and we are now considering the report of that committee.
(2 CONG. REC. NO. 13, July 27, 1955, pp. 3841-42 (emphasis added))
III. The President's certification. The fallacy in thinking that H. No. 11197 and S. No. 1630 are
distinct and unrelated measures also accounts for the petitioners' (Kilosbayan's and PAL's)
contention that because the President separately certified to the need for the immediate
enactment of these measures, his certification was ineffectual and void. The certification had to
be made of the version of the same revenue bill which at the moment was being considered.
Otherwise, to follow petitioners' theory, it would be necessary for the President to certify as
many bills as are presented in a house of Congress even though the bills are merely versions of
the bill he has already certified. It is enough that he certifies the bill which, at the time he makes
the certification, is under consideration. Since on March 22, 1994 the Senate was considering S.
No. 1630, it was that bill which had to be certified. For that matter on June 1, 1993 the President
had earlier certified H. No. 9210 for immediate enactment because it was the one which at that
time was being considered by the House. This bill was later substituted, together with other bills,
by H. No. 11197.
As to what Presidential certification can accomplish, we have already explained in the main
decision that the phrase "except when the President certifies to the necessity of its immediate
enactment, etc." in Art. VI, §26 (2) qualifies not only the requirement that "printed copies [of a
bill] in its final form [must be] distributed to the members three days before its passage" but also
the requirement that before a bill can become a law it must have passed "three readings on
separate days." There is not only textual support for such construction but historical basis as
well.
Art. VI, §21 (2) of the 1935 Constitution originally provided:
(2) No bill shall be passed by either House unless it shall have been printed and copies
thereof in its final form furnished its Members at least three calendar days prior to its
passage, except when the President shall have certified to the necessity of its immediate
enactment. Upon the last reading of a bill, no amendment thereof shall be allowed and
the question upon its passage shall be taken immediately thereafter, and the yeas and
nays entered on the Journal.
When the 1973 Constitution was adopted, it was provided in Art. VIII, §19 (2):
(2) No bill shall become a law unless it has passed three readings on separate days, and
printed copies thereof in its final form have been distributed to the Members three days
before its passage, except when the Prime Minister certifies to the necessity of its
immediate enactment to meet a public calamity or emergency. Upon the last reading of a
bill, no amendment thereto shall be allowed, and the vote thereon shall be taken
immediately thereafter, and the yeas and nays entered in the Journal.
This provision of the 1973 document, with slight modification, was adopted in Art. VI, §26 (2) of
the present Constitution, thus:
(2) No bill passed by either House shall become a law unless it has passed three
readings on separate days, and printed copies thereof in its final form have been
distributed to its Members three days before its passage, except when the President
certifies to the necessity of its immediate enactment to meet a public calamity or
emergency. Upon the last reading of a bill, no amendment thereto shall be allowed, and
the vote thereon shall be taken immediately thereafter, and the yeas and nays entered in
the Journal.
The exception is based on the prudential consideration that if in all cases three readings on
separate days are required and a bill has to be printed in final form before it can be passed, the
need for a law may be rendered academic by the occurrence of the very emergency or public
calamity which it is meant to address.
Petitioners further contend that a "growing budget deficit" is not an emergency, especially in a
country like the Philippines where budget deficit is a chronic condition. Even if this were the
case, an enormous budget deficit does not make the need for R.A. No. 7716 any less urgent or
the situation calling for its enactment any less an emergency.
Apparently, the members of the Senate (including some of the petitioners in these cases)
believed that there was an urgent need for consideration of S. No. 1630, because they
responded to the call of the President by voting on the bill on second and third readings on the
same day. While the judicial department is not bound by the Senate's acceptance of the
President's certification, the respect due coequal departments of the government in matters
committed to them by the Constitution and the absence of a clear showing of grave abuse of
discretion caution a stay of the judicial hand.
At any rate, we are satisfied that S. No. 1630 received thorough consideration in the Senate
where it was discussed for six days. Only its distribution in advance in its final printed form was
actually dispensed with by holding the voting on second and third readings on the same day
(March 24, 1994). Otherwise, sufficient time between the submission of the bill on February 8,
1994 on second reading and its approval on March 24, 1994 elapsed before it was finally voted
on by the Senate on third reading.
The purpose for which three readings on separate days is required is said to be two-fold: (1) to
inform the members of Congress of what they must vote on and (2) to give them notice that a
measure is progressing through the enacting process, thus enabling them and others interested
in the measure to prepare their positions with reference to it. (1 J. G. SUTHERLAND,
STATUTES AND STATUTORY CONSTRUCTION §10.04, p. 282 (1972)). These purposes
were substantially achieved in the case of R.A. No. 7716.
IV. Power of Conference Committee. It is contended (principally by Kilosbayan, Inc. and the
Movement of Attorneys for Brotherhood, Integrity and Nationalism, Inc. (MABINI)) that in
violation of the constitutional policy of full public disclosure and the people's right to know (Art. II,
§28 and Art. III, §7) the Conference Committee met for two days in executive session with only
the conferees present.
As pointed out in our main decision, even in the United States it was customary to hold such
sessions with only the conferees and their staffs in attendance and it was only in 1975 when a
new rule was adopted requiring open sessions. Unlike its American counterpart, the Philippine
Congress has not adopted a rule prescribing open hearings for conference committees.
It is nevertheless claimed that in the United States, before the adoption of the rule in 1975, at
least staff members were present. These were staff members of the Senators and
Congressmen, however, who may be presumed to be their confidential men, not stenographers
as in this case who on the last two days of the conference were excluded. There is no showing
that the conferees themselves did not take notes of their proceedings so as to give petitioner
Kilosbayan basis for claiming that even in secret diplomatic negotiations involving state interests,
conferees keep notes of their meetings. Above all, the public's right to know was fully served
because the Conference Committee in this case submitted a report showing the changes made
on the differing versions of the House and the Senate.
Petitioners cite the rules of both houses which provide that conference committee reports must
contain "a detailed, sufficiently explicit statement of the changes in or other amendments."
These changes are shown in the bill attached to the Conference Committee Report. The
members of both houses could thus ascertain what changes had been made in the original bills
without the need of a statement detailing the changes.
The same question now presented was raised when the bill which became R.A. No. 1400 (Land
Reform Act of 1955) was reported by the Conference Committee. Congressman Bengzon
raised a point of order. He said:
MR. BENGZON. My point of order is that it is out of order to consider the report of the
conference committee regarding House Bill No. 2557 by reason of the provision of
Section 11, Article XII, of the Rules of this House which provides specifically that the
conference report must be accompanied by a detailed statement of the effects of the
amendment on the bill of the House. This conference committee report is not
accompanied by that detailed statement, Mr. Speaker. Therefore it is out of order to
consider it.
Petitioner Tolentino, then the Majority Floor Leader, answered:
MR. TOLENTINO. Mr. Speaker, I should just like to say a few words in connection with
the point of order raised by the gentleman from Pangasinan.
There is no question about the provision of the Rule cited by the gentleman from Pangasinan,
but this provision applies to those cases where only portions of the bill have been amended. In
this case before us an entire bill is presented; therefore, it can be easily seen from the reading
of the bill what the provisions are. Besides, this procedure has been an established practice.
After some interruption, he continued:
MR. TOLENTINO. As I was saying, Mr. Speaker, we have to look into the reason for the
provisions of the Rules, and the reason for the requirement in the provision cited by the
gentleman from Pangasinan is when there are only certain words or phrases inserted in
or deleted from the provisions of the bill included in the conference report, and we
cannot understand what those words and phrases mean and their relation to the bill. In
that case, it is necessary to make a detailed statement on how those words and phrases
will affect the bill as a whole; but when the entire bill itself is copied verbatim in the
conference report, that is not necessary. So when the reason for the Rule does not exist,
the Rule does not exist.
(2 CONG. REC. NO. 2, p. 4056. (emphasis added))
Congressman Tolentino was sustained by the chair. The record shows that when the ruling was
appealed, it was upheld by viva voce and when a division of the House was called, it was
sustained by a vote of 48 to 5. (Id.,
p. 4058)
Nor is there any doubt about the power of a conference committee to insert new provisions as
long as these are germane to the subject of the conference. As this Court held in Philippine
Judges Association v. Prado, 227 SCRA 703 (1993), in an opinion written by then Justice Cruz,
the jurisdiction of the conference committee is not limited to resolving differences between the
Senate and the House. It may propose an entirely new provision. What is important is that its
report is subsequently approved by the respective houses of Congress. This Court ruled that it
would not entertain allegations that, because new provisions had been added by the conference
committee, there was thereby a violation of the constitutional injunction that "upon the last
reading of a bill, no amendment thereto shall be allowed."
Applying these principles, we shall decline to look into the petitioners' charges that an
amendment was made upon the last reading of the bill that eventually became R.A. No.
7354 and that copies thereof in its final form were not distributed among the members of
each House. Both the enrolled bill and the legislative journals certify that the measure
was duly enacted i.e., in accordance with Article VI, Sec. 26 (2) of the Constitution. We
are bound by such official assurances from a coordinate department of the government,
to which we owe, at the very least, a becoming courtesy.
(Id. at 710. (emphasis added))
It is interesting to note the following description of conference committees in the Philippines in a
1979 study:
Conference committees may be of two types: free or instructed. These committees may
be given instructions by their parent bodies or they may be left without instructions.
Normally the conference committees are without instructions, and this is why they are
often critically referred to as "the little legislatures." Once bills have been sent to them,
the conferees have almost unlimited authority to change the clauses of the bills and in
fact sometimes introduce new measures that were not in the original legislation. No
minutes are kept, and members' activities on conference committees are difficult to
determine. One congressman known for his idealism put it this way: "I killed a bill on
export incentives for my interest group [copra] in the conference committee but I could
not have done so anywhere else." The conference committee submits a report to both
houses, and usually it is accepted. If the report is not accepted, then the committee is
discharged and new members are appointed.
(R. Jackson, Committees in the Philippine Congress, in COMMITTEES AND LEGISLATURES:
A COMPARATIVE ANALYSIS 163 (J. D. LEES AND M. SHAW, eds.)).
In citing this study, we pass no judgment on the methods of conference committees. We cite it
only to say that conference committees here are no different from their counterparts in the
United States whose vast powers we noted in Philippine Judges Association v. Prado, supra. At
all events, under Art. VI, §16(3) each house has the power "to determine the rules of its
proceedings," including those of its committees. Any meaningful change in the method and
procedures of Congress or its committees must therefore be sought in that body itself.
V. The titles of S. No. 1630 and H. No. 11197. PAL maintains that R.A. No. 7716 violates Art. VI,
§26 (1) of the Constitution which provides that "Every bill passed by Congress shall embrace
only one subject which shall be expressed in the title thereof." PAL contends that the
amendment of its franchise by the withdrawal of its exemption from the VAT is not expressed in
the title of the law.
Pursuant to §13 of P.D. No. 1590, PAL pays a franchise tax of 2% on its gross revenue "in lieu
of all other taxes, duties, royalties, registration, license and other fees and charges of any kind,
nature, or description, imposed, levied, established, assessed or collected by any municipal, city,
provincial or national authority or government agency, now or in the future."
PAL was exempted from the payment of the VAT along with other entities by §103 of the
National Internal Revenue Code, which provides as follows:
§103. Exempt transactions. — The following shall be exempt from the value-added tax:
xxx xxx xxx
(q) Transactions which are exempt under special laws or international agreements to which the
Philippines is a signatory.
R.A. No. 7716 seeks to withdraw certain exemptions, including that granted to PAL, by
amending §103, as follows:
§103. Exempt transactions. — The following shall be exempt from the value-added tax:
xxx xxx xxx
(q) Transactions which are exempt under special laws, except those granted under Presidential
Decree Nos. 66, 529, 972, 1491, 1590. . . .
The amendment of §103 is expressed in the title of R.A. No. 7716 which reads:
AN ACT RESTRUCTURING THE VALUE-ADDED TAX (VAT) SYSTEM, WIDENING
ITS TAX BASE AND ENHANCING ITS ADMINISTRATION, AND FOR THESE
PURPOSES AMENDING AND REPEALING THE RELEVANT PROVISIONS OF THE
NATIONAL INTERNAL REVENUE CODE, AS AMENDED, AND FOR OTHER
PURPOSES.
By stating that R.A. No. 7716 seeks to "[RESTRUCTURE] THE VALUE-ADDED TAX (VAT)
SYSTEM [BY] WIDENING ITS TAX BASE AND ENHANCING ITS ADMINISTRATION, AND
FOR THESE PURPOSES AMENDING AND REPEALING THE RELEVANT PROVISIONS OF
THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED AND FOR OTHER
PURPOSES," Congress thereby clearly expresses its intention to amend any provision of the
NIRC which stands in the way of accomplishing the purpose of the law.
PAL asserts that the amendment of its franchise must be reflected in the title of the law by
specific reference to P.D. No. 1590. It is unnecessary to do this in order to comply with the
constitutional requirement, since it is already stated in the title that the law seeks to amend the
pertinent provisions of the NIRC, among which is §103(q), in order to widen the base of the VAT.
Actually, it is the bill which becomes a law that is required to express in its title the subject of
legislation. The titles of H. No. 11197 and S. No. 1630 in fact specifically referred to §103 of the
NIRC as among the provisions sought to be amended. We are satisfied that sufficient notice
had been given of the pendency of these bills in Congress before they were enacted into what is
now R.A.
No. 7716.
In Philippine Judges Association v. Prado, supra, a similar argument as that now made by PAL
was rejected. R.A. No. 7354 is entitled AN ACT CREATING THE PHILIPPINE POSTAL
CORPORATION, DEFINING ITS POWERS, FUNCTIONS AND RESPONSIBILITIES,
PROVIDING FOR REGULATION OF THE INDUSTRY AND FOR OTHER PURPOSES
CONNECTED THEREWITH. It contained a provision repealing all franking privileges. It was
contended that the withdrawal of franking privileges was not expressed in the title of the law. In
holding that there was sufficient description of the subject of the law in its title, including the
repeal of franking privileges, this Court held:
To require every end and means necessary for the accomplishment of the general
objectives of the statute to be expressed in its title would not only be unreasonable but
would actually render legislation impossible. [Cooley, Constitutional Limitations, 8th Ed.,
p. 297] As has been correctly explained:
The details of a legislative act need not be specifically stated in its title, but
matter germane to the subject as expressed in the title, and adopted to the
accomplishment of the object in view, may properly be included in the act. Thus,
it is proper to create in the same act the machinery by which the act is to be
enforced, to prescribe the penalties for its infraction, and to remove obstacles in
the way of its execution. If such matters are properly connected with the subject
as expressed in the title, it is unnecessary that they should also have special
mention in the title. (Southern Pac. Co. v. Bartine, 170 Fed. 725)
(227 SCRA at 707-708)
VI. Claims of press freedom and religious liberty. We have held that, as a general proposition,
the press is not exempt from the taxing power of the State and that what the constitutional
guarantee of free press prohibits are laws which single out the press or target a group belonging
to the press for special treatment or which in any way discriminate against the press on the
basis of the content of the publication, and R.A. No. 7716 is none of these.
Now it is contended by the PPI that by removing the exemption of the press from the VAT while
maintaining those granted to others, the law discriminates against the press. At any rate, it is
averred, "even nondiscriminatory taxation of constitutionally guaranteed freedom is
unconstitutional."
With respect to the first contention, it would suffice to say that since the law granted the press a
privilege, the law could take back the privilege anytime without offense to the Constitution. The
reason is simple: by granting exemptions, the State does not forever waive the exercise of its
sovereign prerogative.
Indeed, in withdrawing the exemption, the law merely subjects the press to the same tax burden
to which other businesses have long ago been subject. It is thus different from the tax involved
in the cases invoked by the PPI. The license tax in Grosjean v. American Press Co., 297 U.S.
233, 80 L. Ed. 660 (1936) was found to be discriminatory because it was laid on the gross
advertising receipts only of newspapers whose weekly circulation was over 20,000, with the
result that the tax applied only to 13 out of 124 publishers in Louisiana. These large papers
were critical of Senator Huey Long who controlled the state legislature which enacted the
license tax. The censorial motivation for the law was thus evident.
On the other hand, in Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460
U.S. 575, 75 L. Ed. 2d 295 (1983), the tax was found to be discriminatory because although it
could have been made liable for the sales tax or, in lieu thereof, for the use tax on the privilege
of using, storing or consuming tangible goods, the press was not. Instead, the press was
exempted from both taxes. It was, however, later made to pay a special use tax on the cost of
paper and ink which made these items "the only items subject to the use tax that were
component of goods to be sold at retail." The U.S. Supreme Court held that the differential
treatment of the press "suggests that the goal of regulation is not related to suppression of
expression, and such goal is presumptively unconstitutional." It would therefore appear that
even a law that favors the press is constitutionally suspect. (See the dissent of Rehnquist, J. in
that case)
Nor is it true that only two exemptions previously granted by E.O. No. 273 are withdrawn
"absolutely and unqualifiedly" by R.A. No. 7716. Other exemptions from the VAT, such as those
previously granted to PAL, petroleum concessionaires, enterprises registered with the Export
Processing Zone Authority, and many more are likewise totally withdrawn, in addition to
exemptions which are partially withdrawn, in an effort to broaden the base of the tax.
The PPI says that the discriminatory treatment of the press is highlighted by the fact that
transactions, which are profit oriented, continue to enjoy exemption under R.A. No. 7716. An
enumeration of some of these transactions will suffice to show that by and large this is not so
and that the exemptions are granted for a purpose. As the Solicitor General says, such
exemptions are granted, in some cases, to encourage agricultural production and, in other
cases, for the personal benefit of the end-user rather than for profit. The exempt transactions
are:
(a) Goods for consumption or use which are in their original state (agricultural, marine
and forest products, cotton seeds in their original state, fertilizers, seeds, seedlings,
fingerlings, fish, prawn livestock and poultry feeds) and goods or services to enhance
agriculture (milling of palay, corn, sugar cane and raw sugar, livestock, poultry feeds,
fertilizer, ingredients used for the manufacture of feeds).
(b) Goods used for personal consumption or use (household and personal effects of citizens
returning to the Philippines) or for professional use, like professional instruments and
implements, by persons coming to the Philippines to settle here.
(c) Goods subject to excise tax such as petroleum products or to be used for manufacture of
petroleum products subject to excise tax and services subject to percentage tax.
(d) Educational services, medical, dental, hospital and veterinary services, and services
rendered under employer-employee relationship.
(e) Works of art and similar creations sold by the artist himself.
(f) Transactions exempted under special laws, or international agreements.
(g) Export-sales by persons not VAT-registered.
(h) Goods or services with gross annual sale or receipt not exceeding P500,000.00.
(Respondents' Consolidated Comment on the Motions for Reconsideration, pp. 58-60)
The PPI asserts that it does not really matter that the law does not discriminate against the
press because "even nondiscriminatory taxation on constitutionally guaranteed freedom is
unconstitutional." PPI cites in support of this assertion the following statement in Murdock v.
Pennsylvania, 319 U.S. 105, 87 L. Ed. 1292 (1943):
The fact that the ordinance is "nondiscriminatory" is immaterial. The protection afforded
by the First Amendment is not so restricted. A license tax certainly does not acquire
constitutional validity because it classifies the privileges protected by the First
Amendment along with the wares and merchandise of hucksters and peddlers and treats
them all alike. Such equality in treatment does not save the ordinance. Freedom of press,
freedom of speech, freedom of religion are in preferred position.
The Court was speaking in that case of a license tax, which, unlike an ordinary tax, is mainly for
regulation. Its imposition on the press is unconstitutional because it lays a prior restraint on the
exercise of its right. Hence, although its application to others, such those selling goods, is valid,
its application to the press or to religious groups, such as the Jehovah's Witnesses, in
connection with the latter's sale of religious books and pamphlets, is unconstitutional. As the
U.S. Supreme Court put it, "it is one thing to impose a tax on income or property of a preacher.
It is quite another thing to exact a tax on him for delivering a sermon."
A similar ruling was made by this Court in American Bible Society v. City of Manila, 101 Phil.
386 (1957) which invalidated a city ordinance requiring a business license fee on those
engaged in the sale of general merchandise. It was held that the tax could not be imposed on
the sale of bibles by the American Bible Society without restraining the free exercise of its right
to propagate.
The VAT is, however, different. It is not a license tax. It is not a tax on the exercise of a privilege,
much less a constitutional right. It is imposed on the sale, barter, lease or exchange of goods or
properties or the sale or exchange of services and the lease of properties purely for revenue
purposes. To subject the press to its payment is not to burden the exercise of its right any more
than to make the press pay income tax or subject it to general regulation is not to violate its
freedom under the Constitution.
Additionally, the Philippine Bible Society, Inc. claims that although it sells bibles, the proceeds
derived from the sales are used to subsidize the cost of printing copies which are given free to
those who cannot afford to pay so that to tax the sales would be to increase the price, while
reducing the volume of sale. Granting that to be the case, the resulting burden on the exercise
of religious freedom is so incidental as to make it difficult to differentiate it from any other
economic imposition that might make the right to disseminate religious doctrines costly.
Otherwise, to follow the petitioner's argument, to increase the tax on the sale of vestments
would be to lay an impermissible burden on the right of the preacher to make a sermon.
On the other hand the registration fee of P1,000.00 imposed by §107 of the NIRC, as amended
by §7 of R.A. No. 7716, although fixed in amount, is really just to pay for the expenses of
registration and enforcement of provisions such as those relating to accounting in §108 of the
NIRC. That the PBS distributes free bibles and therefore is not liable to pay the VAT does not
excuse it from the payment of this fee because it also sells some copies. At any rate whether
the PBS is liable for the VAT must be decided in concrete cases, in the event it is assessed this
tax by the Commissioner of Internal Revenue.
VII. Alleged violations of the due process, equal protection and contract clauses and the rule on
taxation. CREBA asserts that R.A. No. 7716 (1) impairs the obligations of contracts, (2)
classifies transactions as covered or exempt without reasonable basis and (3) violates the rule
that taxes should be uniform and equitable and that Congress shall "evolve a progressive
system of taxation."
With respect to the first contention, it is claimed that the application of the tax to existing
contracts of the sale of real property by installment or on deferred payment basis would result in
substantial increases in the monthly amortizations to be paid because of the 10% VAT. The
additional amount, it is pointed out, is something that the buyer did not anticipate at the time he
entered into the contract.
The short answer to this is the one given by this Court in an early case: "Authorities from
numerous sources are cited by the plaintiffs, but none of them show that a lawful tax on a new
subject, or an increased tax on an old one, interferes with a contract or impairs its obligation,
within the meaning of the Constitution. Even though such taxation may affect particular
contracts, as it may increase the debt of one person and lessen the security of another, or may
impose additional burdens upon one class and release the burdens of another, sti ll the tax must
be paid unless prohibited by the Constitution, nor can it be said that it impairs the obligation of
any existing contract in its true legal sense." (La Insular v. Machuca Go-Tauco and Nubla Co-
Siong, 39 Phil. 567, 574 (1919)). Indeed not only existing laws but also "the reservation of the
essential attributes of sovereignty, is . . . read into contracts as a postulate of the legal order."
(Philippine-American Life Ins. Co. v. Auditor General, 22 SCRA 135, 147 (1968)) Contracts
must be understood as having been made in reference to the possible exercise of the rightful
authority of the government and no obligation of contract can extend to the defeat of that
authority. (Norman v. Baltimore and Ohio R.R., 79 L. Ed. 885 (1935)).
It is next pointed out that while §4 of R.A. No. 7716 exempts such transactions as the sale of
agricultural products, food items, petroleum, and medical and veterinary services, it grants no
exemption on the sale of real property which is equally essential. The sale of real property for
socialized and low-cost housing is exempted from the tax, but CREBA claims that real estate
transactions of "the less poor," i.e., the middle class, who are equally homeless, should likewise
be exempted.
The sale of food items, petroleum, medical and veterinary services, etc., which are essential
goods and services was already exempt under §103, pars. (b) (d) (1) of the NIRC before the
enactment of R.A. No. 7716. Petitioner is in error in claiming that R.A. No. 7716 granted
exemption to these transactions, while subjecting those of petitioner to the payment of the VAT.
Moreover, there is a difference between the "homeless poor" and the "homeless less poor" in
the example given by petitioner, because the second group or middle class can afford to rent
houses in the meantime that they cannot yet buy their own homes. The two social classes are
thus differently situated in life. "It is inherent in the power to tax that the State be free to select
the subjects of taxation, and it has been repeatedly held that 'inequalities which result from a
singling out of one particular class for taxation, or exemption infringe no constitutional
limitation.'" (Lutz v. Araneta, 98 Phil. 148, 153 (1955). Accord, City of Baguio v. De Leon, 134
Phil. 912 (1968); Sison, Jr. v. Ancheta, 130 SCRA 654, 663 (1984); Kapatiran ng mga
Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, 163 SCRA 371 (1988)).
Finally, it is contended, for the reasons already noted, that R.A. No. 7716 also violates Art. VI,
§28(1) which provides that "The rule of taxation shall be uniform and equitable. The Congress
shall evolve a progressive system of taxation."
Equality and uniformity of taxation means that all taxable articles or kinds of property of the
same class be taxed at the same rate. The taxing power has the authority to make reasonable
and natural classifications for purposes of taxation. To satisfy this requirement it is enough that
the statute or ordinance applies equally to all persons, forms and corporations placed in similar
situation. (City of Baguio v. De Leon, supra; Sison, Jr. v. Ancheta, supra)
Indeed, the VAT was already provided in E.O. No. 273 long before R.A. No. 7716 was enacted.
R.A. No. 7716 merely expands the base of the tax. The validity of the original VAT Law was
questioned in Kapatiran ng Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, 163 SCRA
383 (1988) on grounds similar to those made in these cases, namely, that the law was
"oppressive, discriminatory, unjust and regressive in violation of Art. VI, §28(1) of the
Constitution." (At 382) Rejecting the challenge to the law, this Court held:
As the Court sees it, EO 273 satisfies all the requirements of a valid tax. It is uniform. . . .
The sales tax adopted in EO 273 is applied similarly on all goods and services sold to the public,
which are not exempt, at the constant rate of 0% or 10%.
The disputed sales tax is also equitable. It is imposed only on sales of goods or services by
persons engaged in business with an aggregate gross annual sales exceeding P200,000.00.
Small corner sari-sari stores are consequently exempt from its application. Likewise exempt
from the tax are sales of farm and marine products, so that the costs of basic food and other
necessities, spared as they are from the incidence of the VAT, are expected to be relatively
lower and within the reach of the general public.
(At 382-383)
The CREBA claims that the VAT is regressive. A similar claim is made by the Cooperative
Union of the Philippines, Inc. (CUP), while petitioner Juan T. David argues that the law
contravenes the mandate of Congress to provide for a progressive system of taxation because
the law imposes a flat rate of 10% and thus places the tax burden on all taxpayers without
regard to their ability to pay.
The Constitution does not really prohibit the imposition of indirect taxes which, like the VAT, are
regressive. What it simply provides is that Congress shall "evolve a progressive system of
taxation." The constitutional provision has been interpreted to mean simply that "direct taxes
are . . . to be preferred [and] as much as possible, indirect taxes should be minimized." (E.
FERNANDO, THE CONSTITUTION OF THE PHILIPPINES 221 (Second ed. (1977)). Indeed,
the mandate to Congress is not to prescribe, but to evolve, a progressive tax system. Otherwise,
sales taxes, which perhaps are the oldest form of indirect taxes, would have been prohibited
with the proclamation of Art. VIII, §17(1) of the 1973 Constitution from which the present Art. VI,
§28(1) was taken. Sales taxes are also regressive.
Resort to indirect taxes should be minimized but not avoided entirely because it is difficult, if not
impossible, to avoid them by imposing such taxes according to the taxpayers' ability to pay. In
the case of the VAT, the law minimizes the regressive effects of this imposition by providing for
zero rating of certain transactions (R.A. No. 7716, §3, amending §102 (b) of the NIRC), while
granting exemptions to other transactions. (R.A. No. 7716, §4, amending §103 of the NIRC).
Thus, the following transactions involving basic and essential goods and services are exempted
from the VAT:
(a) Goods for consumption or use which are in their original state (agricultural, marine
and forest products, cotton seeds in their original state, fertilizers, seeds, seedlings,
fingerlings, fish, prawn livestock and poultry feeds) and goods or services to enhance
agriculture (milling of palay, corn sugar cane and raw sugar, livestock, poultry feeds,
fertilizer, ingredients used for the manufacture of feeds).
(b) Goods used for personal consumption or use (household and personal effects of citizens
returning to the Philippines) and or professional use, like professional instruments and
implements, by persons coming to the Philippines to settle here.
(c) Goods subject to excise tax such as petroleum products or to be used for manufacture of
petroleum products subject to excise tax and services subject to percentage tax.
(d) Educational services, medical, dental, hospital and veterinary services, and services
rendered under employer-employee relationship.
(e) Works of art and similar creations sold by the artist himself.
(f) Transactions exempted under special laws, or international agreements.
(g) Export-sales by persons not VAT-registered.
(h) Goods or services with gross annual sale or receipt not exceeding P500,000.00.
(Respondents' Consolidated Comment on the Motions for Reconsideration, pp. 58-60)
On the other hand, the transactions which are subject to the VAT are those which involve goods
and services which are used or availed of mainly by higher income groups. These include real
properties held primarily for sale to customers or for lease in the ordinary course of trade or
business, the right or privilege to use patent, copyright, and other similar property or right, the
right or privilege to use industrial, commercial or scientific equipment, motion picture films, tapes
and discs, radio, television, satellite transmission and cable television time, hotels, restaurants
and similar places, securities, lending investments, taxicabs, utility cars for rent, tourist buses,
and other common carriers, services of franchise grantees of telephone and telegraph.
The problem with CREBA's petition is that it presents broad claims of constitutional violations by
tendering issues not at retail but at wholesale and in the abstract. There is no fully developed
record which can impart to adjudication the impact of actuality. There is no factual foundation to
show in the concrete the application of the law to actual contracts and exemplify its effect on
property rights. For the fact is that petitioner's members have not even been assessed the VAT.
Petitioner's case is not made concrete by a series of hypothetical questions asked which are no
different from those dealt with in advisory opinions.
The difficulty confronting petitioner is thus apparent. He alleges arbitrariness. A mere
allegation, as here, does not suffice. There must be a factual foundation of such
unconstitutional taint. Considering that petitioner here would condemn such a provision
as void on its face, he has not made out a case. This is merely to adhere to the
authoritative doctrine that where the due process and equal protection clauses are
invoked, considering that they are not fixed rules but rather broad standards, there is a
need for proof of such persuasive character as would lead to such a conclusion. Absent
such a showing, the presumption of validity must prevail.
(Sison, Jr. v. Ancheta, 130 SCRA at 661)
Adjudication of these broad claims must await the development of a concrete case. It may be
that postponement of adjudication would result in a multiplicity of suits. This need not be the
case, however. Enforcement of the law may give rise to such a case. A test case, provided it is
an actual case and not an abstract or hypothetical one, may thus be presented.
Nor is hardship to taxpayers alone an adequate justification for adjudicating abstract issues.
Otherwise, adjudication would be no different from the giving of advisory opinion that does not
really settle legal issues.
We are told that it is our duty under Art. VIII, §1, ¶2 to decide whenever a claim is made that
"there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the government." This duty can only arise if an actual
case or controversy is before us. Under Art . VIII, §5 our jurisdiction is defined in terms of
"cases" and all that Art. VIII, §1, ¶2 can plausibly mean is that in the exercise of that jurisdiction
we have the judicial power to determine questions of grave abuse of discretion by any branch or
instrumentality of the government.
Put in another way, what is granted in Art. VIII, §1, ¶2 is "judicial power," which is "the power of
a court to hear and decide cases pending between parties who have the right to sue and be
sued in the courts of law and equity" (Lamb v. Phipps, 22 Phil. 456, 559 (1912)), as
distinguished from legislative and executive power. This power cannot be directly appropriated
until it is apportioned among several courts either by the Constitution, as in the case of Art. VIII ,
§5, or by statute, as in the case of the Judiciary Act of 1948 (R.A. No. 296) and the Judiciary
Reorganization Act of 1980 (B.P. Blg. 129). The power thus apportioned constitutes the court's
"jurisdiction," defined as "the power conferred by law upon a court or judge to take cognizance
of a case, to the exclusion of all others." (United States v. Arceo, 6 Phil. 29 (1906)) Without an
actual case coming within its jurisdiction, this Court cannot inquire into any allegation of grave
abuse of discretion by the other departments of the government.
VIII. Alleged violation of policy towards cooperatives. On the other hand, the Cooperative Union
of the Philippines (CUP), after briefly surveying the course of legislation, argues that it was to
adopt a definite policy of granting tax exemption to cooperatives that the present Constitution
embodies provisions on cooperatives. To subject cooperatives to the VAT would therefore be to
infringe a constitutional policy. Petitioner claims that in 1973, P.D. No. 175 was promulgated
exempting cooperatives from the payment of income taxes and sales taxes but in 1984,
because of the crisis which menaced the national economy, this exemption was withdrawn by
P.D. No. 1955; that in 1986, P.D. No. 2008 again granted cooperatives exemption from income
and sales taxes until December 31, 1991, but, in the same year, E.O. No. 93 revoked the
exemption; and that finally in 1987 the framers of the Constitution "repudiated the previous
actions of the government adverse to the interests of the cooperatives, that is, the repeated
revocation of the tax exemption to cooperatives and instead upheld the policy of strengthening
the cooperatives by way of the grant of tax exemptions," by providing the following in Art. XII:
§1. The goals of the national economy are a more equitable distribution of opportunities,
income, and wealth; a sustained increase in the amount of goods and services produced
by the nation for the benefit of the people; and an expanding productivity as the key to
raising the quality of life for all, especially the underprivileged.
The State shall promote industrialization and full employment based on sound agricultural
development and agrarian reform, through industries that make full and efficient use of human
and natural resources, and which are competitive in both domestic and foreign markets.
However, the State shall protect Filipino enterprises against unfair foreign competition and trade
practices.
In the pursuit of these goals, all sectors of the economy and all regions of the country shall be
given optimum opportunity to develop. Private enterprises, including corporations, cooperatives,
and similar collective organizations, shall be encouraged to broaden the base of their ownership.
§15. The Congress shall create an agency to promote the viability and growth of cooperatives
as instruments for social justice and economic development.
Petitioner's contention has no merit. In the first place, it is not true that P.D. No. 1955 singled
out cooperatives by withdrawing their exemption from income and sales taxes under P.D. No.
175, §5. What P.D. No. 1955, §1 did was to withdraw the exemptions and preferential
treatments theretofore granted to private business enterprises in general, in view of the
economic crisis which then beset the nation. It is true that after P.D. No. 2008, §2 had restored
the tax exemptions of cooperatives in 1986, the exemption was again repealed by E.O. No. 93,
§1, but then again cooperatives were not the only ones whose exemptions were withdrawn. The
withdrawal of tax incentives applied to all, including government and private entities . In the
second place, the Constitution does not really require that cooperatives be granted tax
exemptions in order to promote their growth and viability. Hence, there is no basis for
petitioner's assertion that the government's policy toward cooperatives had been one of
vacillation, as far as the grant of tax privileges was concerned, and that it was to put an end to
this indecision that the constitutional provisions cited were adopted. Perhaps as a matter of
policy cooperatives should be granted tax exemptions, but that is left to the discretion of
Congress. If Congress does not grant exemption and there is no discrimination to cooperatives,
no violation of any constitutional policy can be charged.
Indeed, petitioner's theory amounts to saying that under the Constitution cooperatives are
exempt from taxation. Such theory is contrary to the Constitution under which only the following
are exempt from taxation: charitable institutions, churches and parsonages, by reason of Art. VI,
§28 (3), and non-stock, non-profit educational institutions by reason of Art. XIV, §4 (3).
CUP's further ground for seeking the invalidation of R.A. No. 7716 is that it denies cooperatives
the equal protection of the law because electric cooperatives are exempted from the VAT. The
classification between electric and other cooperatives (farmers cooperatives, producers
cooperatives, marketing cooperatives, etc.) apparently rests on a congressional determination
that there is greater need to provide cheaper electric power to as many people as possible,
especially those living in the rural areas, than there is to provide them with other necessities in
life. We cannot say that such classification is unreasonable.
We have carefully read the various arguments raised against the constitutional validity of R.A.
No. 7716. We have in fact taken the extraordinary step of enjoining its enforcement pending
resolution of these cases. We have now come to the conclusion that the law suffers from none
of the infirmities attributed to it by petitioners and that its enactment by the other branches of the
government does not constitute a grave abuse of discretion. Any question as to its necessity,
desirability or expediency must be addressed to Congress as the body which is electorally
responsible, remembering that, as Justice Holmes has said, "legislators are the ultimate
guardians of the liberties and welfare of the people in quite as great a degree as are the courts."
(Missouri, Kansas & Texas Ry. Co. v. May, 194 U.S. 267, 270, 48 L. Ed. 971, 973 (1904)). It is
not right, as petitioner in G.R. No. 115543 does in arguing that we should enforce the public
accountability of legislators, that those who took part in passing the law in question by voting for
it in Congress should later thrust to the courts the burden of reviewing measures in the flush of
enactment. This Court does not sit as a third branch of the legislature, much less exercise a
veto power over legislation.
WHEREFORE, the motions for reconsideration are denied with finality and the temporary
restraining order previously issued is hereby lifted.
SO ORDERED.
Narvasa, C.J., Feliciano, Melo, Kapunan, Francisco and Hermosisima, Jr., JJ., concur.
Padilla and Vitug, JJ., maintained their separate opinion.
Regalado, Davide, Jr., Romero, Bellosillo and Puno, JJ, maintained their dissenting opinion.
Panganiban, J., took no part.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 130230 April 15, 2005
METROPOLITAN MANILA DEVELOPMENT AUTHORITY, Petitioner,
vs.
DANTE O. GARIN, respondent.
D E C I S I O N
CHICO-NAZARIO, J.:
At issue in this case is the validity of Section 5(f) of Republic Act No. 7924 creating the
Metropolitan Manila Development Authority (MMDA), which authorizes it to confiscate and
suspend or revoke driver's licenses in the enforcement of traffic laws and regulations.
The issue arose from an incident involving the respondent Dante O. Garin, a lawyer, who was
issued a traffic violation receipt (TVR) and his driver's license confiscated for parking illegally
along Gandara Street, Binondo, Manila, on 05 August 1995. The following statements were
printed on the TVR:
You are hereby directed to report to the MMDA Traffic Operations Center Port Area Manila after
48 hours from date of apprehension for disposition/appropriate action thereon. Criminal case
shall be filed for failure to redeem license after 30 days.
Valid as temporary DRIVER'S license for seven days from date of apprehension.1
Shortly before the expiration of the TVR's validity, the respondent addressed a letter2 to then
MMDA Chairman Prospero Oreta requesting the return of his driver's license, and expressing
his preference for his case to be filed in court.
Receiving no immediate reply, Garin filed the original complaint3 with application for preliminary
injunction in Branch 260 of the Regional Trial Court (RTC) of Parañaque, on 12 September
1995, contending that, in the absence of any implementing rules and regulations, Sec. 5(f) of
Rep. Act No. 7924 grants the MMDA unbridled discretion to deprive erring motorists of their
licenses, pre-empting a judicial determination of the validity of the deprivation, thereby violating
the due process clause of the Constitution. The respondent further contended that the provision
violates the constitutional prohibition against undue delegation of legislative authority, allowing
as it does the MMDA to fix and impose unspecified – and therefore unlimited - fines and other
penalties on erring motorists.
In support of his application for a writ of preliminary injunction, Garin alleged that he suffered
and continues to suffer great and irreparable damage because of the deprivation of his license
and that, absent any implementing rules from the Metro Manila Council, the TVR and the
confiscation of his license have no legal basis.
For its part, the MMDA, represented by the Office of the Solicitor General, pointed out that the
powers granted to it by Sec. 5(f) of Rep. Act No. 7924 are limited to the fixing, collection and
imposition of fines and penalties for traffic violations, which powers are legislative and executive
in nature; the judiciary retains the right to determine the validity of the penalty imposed. It
further argued that the doctrine of separation of powers does not preclude "admixture" of the
three powers of government in administrative agencies.4
The MMDA also refuted Garin's allegation that the Metro Manila Council, the governing board
and policy making body of the petitioner, has as yet to formulate the implementing rules for Sec.
5(f) of Rep. Act No. 7924 and directed the court's attention to MMDA Memorandum Circular No.
TT-95-001 dated 15 April 1995. Respondent Garin, however, questioned the validity of MMDA
Memorandum Circular No. TT-95-001, as he claims that it was passed by the Metro Manila
Council in the absence of a quorum.
Judge Helen Bautista-Ricafort issued a temporary restraining order on 26 September 1995,
extending the validity of the TVR as a temporary driver's license for twenty more days. A
preliminary mandatory injunction was granted on 23 October 1995, and the MMDA was directed
to return the respondent's driver's license.
On 14 August 1997, the trial court rendered the assailed decision5 in favor of the herein
respondent and held that:
a. There was indeed no quorum in that First Regular Meeting of the MMDA Council held on
March 23, 1995, hence MMDA Memorandum Circular No. TT-95-001, authorizing confiscation
of driver's licenses upon issuance of a TVR, is void ab initio.
b. The summary confiscation of a driver's license without first giving the driver an
opportunity to be heard; depriving him of a property right (driver's license) without DUE
PROCESS; not filling (sic) in Court the complaint of supposed traffic infraction, cannot be
justified by any legislation (and is) hence unconstitutional.
WHEREFORE, the temporary writ of preliminary injunction is hereby made permanent; th(e)
MMDA is directed to return to plaintiff his driver's license; th(e) MMDA is likewise ordered to
desist from confiscating driver's license without first giving the driver the opportunity to be heard
in an appropriate proceeding.
In filing this petition,6 the MMDA reiterates and reinforces its argument in the court below and
contends that a license to operate a motor vehicle is neither a contract nor a property right, but
is a privilege subject to reasonable regulation under the police power in the interest of the public
safety and welfare. The petitioner further argues that revocation or suspension of this privilege
does not constitute a taking without due process as long as the licensee is given the right to
appeal the revocation.
To buttress its argument that a licensee may indeed appeal the taking and the judiciary retains
the power to determine the validity of the confiscation, suspension or revocation of the license,
the petitioner points out that under the terms of the confiscation, the licensee has three options:
1. To voluntarily pay the imposable fine,
2. To protest the apprehension by filing a protest with the MMDA Adjudication Committee, or
3. To request the referral of the TVR to the Public Prosecutor's Office.
The MMDA likewise argues that Memorandum Circular No. TT-95-001 was validly passed in the
presence of a quorum, and that the lower court's finding that it had not was based on a
"misapprehension of facts," which the petitioner would have us review. Moreover, it asserts that
though the circular is the basis for the issuance of TVRs, the basis for the summary confiscation
of licenses is Sec. 5(f) of Rep. Act No. 7924 itself, and that such power is self-executory and
does not require the issuance of any implementing regulation or circular.
Meanwhile, on 12 August 2004, the MMDA, through its Chairman Bayani Fernando,
implemented Memorandum Circular No. 04, Series of 2004, outlining the procedures for the use
of the Metropolitan Traffic Ticket (MTT) scheme. Under the circular, erring motorists are issued
an MTT, which can be paid at any Metrobank branch. Traffic enforcers may no longer
confiscate drivers' licenses as a matter of course in cases of traffic violations. All motorists with
unredeemed TVRs were given seven days from the date of implementation of the new system
to pay their fines and redeem their license or vehicle plates.7
It would seem, therefore, that insofar as the absence of a prima facie case to enjoin the
petitioner from confiscating drivers' licenses is concerned, recent events have overtaken the
Court's need to decide this case, which has been rendered moot and academic by the
implementation of Memorandum Circular No. 04, Series of 2004.
The petitioner, however, is not precluded from re-implementing Memorandum Circular No. TT-
95-001, or any other scheme, for that matter, that would entail confiscating drivers' licenses.
For the proper implementation, therefore, of the petitioner's future programs, this Court deems it
appropriate to make the following observations:
1. A license to operate a motor vehicle is a privilege that the state may withhold in the
exercise of its police power.
The petitioner correctly points out that a license to operate a motor vehicle is not a property right,
but a privilege granted by the state, which may be suspended or revoked by the state in the
exercise of its police power, in the interest of the public safety and welfare, subject to the
procedural due process requirements. This is consistent with our rulings in Pedro v. Provincial
Board of Rizal8 on the license to operate a cockpit, Tan v. Director of Forestry9 andOposa v.
Factoran10 on timber licensing agreements, and Surigao Electric Co., Inc. v. Municipality of
Surigao11 on a legislative franchise to operate an electric plant.
Petitioner cites a long list of American cases to prove this point, such as State ex. Rel.
Sullivan,12 which states in part that, "the legislative power to regulate travel over the highways
and thoroughfares of the state for the general welfare is extensive. It may be exercised in any
reasonable manner to conserve the safety of travelers and pedestrians. Since motor vehicles
are instruments of potential danger, their registration and the licensing of their operators have
been required almost from their first appearance. The right to operate them in public places is
not a natural and unrestrained right, but a privilege subject to reasonable regulation, under the
police power, in the interest of the public safety and welfare. The power to license imports
further power to withhold or to revoke such license upon noncompliance with prescribed
conditions."
Likewise, the petitioner quotes the Pennsylvania Supreme Court in Commonwealth v. Funk,13 to
the effect that: "Automobiles are vehicles of great speed and power. The use of them
constitutes an element of danger to persons and property upon the highways. Carefully
operated, an automobile is still a dangerous instrumentality, but, when operated by careless or
incompetent persons, it becomes an engine of destruction. The Legislature, in the exercise of
the police power of the commonwealth, not only may, but must, prescribe how and by whom
motor vehicles shall be operated on the highways. One of the primary purposes of a system of
general regulation of the subject matter, as here by the Vehicle Code, is to insure the
competency of the operator of motor vehicles. Such a general law is manifestly directed to the
promotion of public safety and is well within the police power."
The common thread running through the cited cases is that it is the legislature, in the exercise of
police power, which has the power and responsibility to regulate how and by whom motor
vehicles may be operated on the state highways.
2. The MMDA is not vested with police power.
In Metro Manila Development Authority v. Bel-Air Village Association, Inc.,14 we categorically
stated that Rep. Act No. 7924 does not grant the MMDA with police power, let alone legislative
power, and that all its functions are administrative in nature.
The said case also involved the herein petitioner MMDA which claimed that it had the authority
to open a subdivision street owned by the Bel-Air Village Association, Inc. to public traffic
because it is an agent of the state endowed with police power in the delivery of basic services in
Metro Manila. From this premise, the MMDA argued that there was no need for the City of
Makati to enact an ordinance opening Neptune Street to the public.
Tracing the legislative history of Rep. Act No. 7924 creating the MMDA, we concluded that the
MMDA is not a local government unit or a public corporation endowed with legislative power,
and, unlike its predecessor, the Metro Manila Commission, it has no power to enact ordinances
for the welfare of the community. Thus, in the absence of an ordinance from the City of Makati,
its own order to open the street was invalid.
We restate here the doctrine in the said decision as it applies to the case at bar: police power,
as an inherent attribute of sovereignty, is the power vested by the Constitution in the legislature
to make, ordain, and establish all manner of wholesome and reasonable laws, statutes and
ordinances, either with penalties or without, not repugnant to the Constitution, as they shall
judge to be for the good and welfare of the commonwealth, and for the subjects of the same.
Having been lodged primarily in the National Legislature, it cannot be exercised by any group or
body of individuals not possessing legislative power. The National Legislature, however, may
delegate this power to the president and administrative boards as well as the lawmaking bodies
of municipal corporations or local government units (LGUs). Once delegated, the agents can
exercise only such legislative powers as are conferred on them by the national lawmaking body.
Our Congress delegated police power to the LGUs in the Local Government Code of 1991.15 A
local government is a "political subdivision of a nation or state which is constituted by law and
has substantial control of local affairs."16Local government units are the provinces, cities,
municipalities and barangays, which exercise police power through their respective legislative
bodies.
Metropolitan or Metro Manila is a body composed of several local government units. With the
passage of Rep. Act No. 7924 in 1995, Metropolitan Manila was declared as a "special
development and administrative region" and the administration of "metro-wide" basic services
affecting the region placed under "a development authority" referred to as the MMDA. Thus:
. . . [T]he powers of the MMDA are limited to the following acts: formulation, coordination,
regulation, implementation, preparation, management, monitoring, setting of policies, installation
of a system and administration. There is no syllable in R. A. No. 7924 that grants the MMDA
police power, let alone legislative power. Even the Metro Manila Council has not been
delegated any legislative power. Unlike the legislative bodies of the local government units,
there is no provision in R. A. No. 7924 that empowers the MMDA or its Council to "enact
ordinances, approve resolutions and appropriate funds for the general welfare" of the
inhabitants of Metro Manila. The MMDA is, as termed in the charter itself, a "development
authority." It is an agency created for the purpose of laying down policies and
coordinating with the various national government agencies, people's organizations,
non-governmental organizations and the private sector for the efficient and expeditious
delivery of basic services in the vast metropolitan area. All its functions are
administrative in nature and these are actually summed up in the charter itself, viz:
"Sec. 2. Creation of the Metropolitan Manila Development Authority. -- -x x x.
The MMDA shall perform planning, monitoring and coordinative functions, and in the
process exercise regulatory and supervisory authority over the delivery of metro-wide
services within Metro Manila, without diminution of the autonomy of the local government
units concerning purely local matters."
….
Clearly, the MMDA is not a political unit of government. The power delegated to the MMDA is
that given to the Metro Manila Council to promulgate administrative rules and regulations in the
implementation of the MMDA's functions. There is no grant of authority to enact ordinances
and regulations for the general welfare of the inhabitants of the metropolis. 17 (footnotes
omitted, emphasis supplied)
Therefore, insofar as Sec. 5(f) of Rep. Act No. 7924 is understood by the lower court and by the
petitioner to grant the MMDA the power to confiscate and suspend or revoke drivers' licenses
without need of any other legislative enactment, such is an unauthorized exercise of police
power.
3. Sec. 5(f) grants the MMDA with the duty to enforce existing traffic rules and regulations.
Section 5 of Rep. Act No. 7924 enumerates the "Functions and Powers of the Metro Manila
Development Authority." The contested clause in Sec. 5(f) states that the petitioner shall "install
and administer a single ticketing system, fix, impose and collect fines and penalties for all kinds
of violations of traffic rules and regulations, whether moving or nonmoving in nature, and
confiscate and suspend or revoke drivers' licenses in the enforcement of such traffic laws and
regulations, the provisions of Rep. Act No. 413618 and P.D. No. 160519 to the contrary
notwithstanding," and that "(f)or this purpose, the Authority shall enforce all traffic laws and
regulations in Metro Manila, through its traffic operation center, and may deputize members of
the PNP, traffic enforcers of local government units, duly licensed security guards, or members
of non-governmental organizations to whom may be delegated certain authority, subject to such
conditions and requirements as the Authority may impose."
Thus, where there is a traffic law or regulation validly enacted by the legislature or those
agencies to whom legislative powers have been delegated (the City of Manila in this case), the
petitioner is not precluded – and in fact is duty-bound – to confiscate and suspend or revoke
drivers' licenses in the exercise of its mandate of transport and traffic management, as well as
the administration and implementation of all traffic enforcement operations, traffic engineering
services and traffic education programs.20
This is consistent with our ruling in Bel-Air that the MMDA is a development authority created for
the purpose of laying down policies and coordinating with the various national government
agencies, people's organizations, non-governmental organizations and the private sector, which
may enforce, but not enact, ordinances.
This is also consistent with the fundamental rule of statutory construction that a statute is to be
read in a manner that would breathe life into it, rather than defeat it,21 and is supported by the
criteria in cases of this nature that all reasonable doubts should be resolved in favor of the
constitutionality of a statute.22
A last word. The MMDA was intended to coordinate services with metro-wide impact that
transcend local political boundaries or would entail huge expenditures if provided by the
individual LGUs, especially with regard to transport and traffic management,23 and we are aware
of the valiant efforts of the petitioner to untangle the increasingly traffic-snarled roads of Metro
Manila. But these laudable intentions are limited by the MMDA's enabling law, which we can
but interpret, and petitioner must be reminded that its efforts in this respect must be authorized
by a valid law, or ordinance, or regulation arising from a legitimate source.
WHEREFORE, the petition is dismissed.
SO ORDERED.
Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Tinga, JJ., concur.
Footnotes
1 Records, p. 10.
2 Id., p. 11.
3 Id., p. 1.
4 Memorandum for Defendants, Records, pp. 178 -185.
5 Id., pp. 187-190, penned by Hon. Helen Bautista-Ricafort.
6 Records, pp. 197-225.
7 Sec. 7, Mem. Circ. No. 04, Series of 2004.
8 56 Phil 123 (1931).
9 G.R. No. L-24548, 27 October 1983, 125 SCRA 302.
10 G.R. No. 101083, 30 July 1993, 224 SCRA 792.
11 G.R. No. L-22766, 30 August 1968, 24 SCRA 898.
12 63 P. 2d 653, 108 ALR 1156, 1159.
13 323 Pa. 390, 186 A. 65 (108 ALR 1161).
14 G.R. No. 135962, 27 March 2000, 328 SCRA 836, penned by Justice Reynato S. Puno.
15 Sec. 16 of Book I of the Local Government Code of 1991 states:
General Welfare.-Every local government unit shall exercise the powers expressly granted,
those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for
its efficient and effective governance, and those which are essential to the promotion of the
general welfare. Within their respective territorial jurisdictions, local government units shall
ensure and support, among other things, the preservation and enrichment of culture, promote
health and safety, enhance the right of the people to a balanced ecology, encourage and
support the development of appropriate and self-reliant scientific and technological capabilities,
improve public morals, enhance economic prosperity and social justice, promote full
employment among their residents, maintain peace and order, and preserve the comfort and
convenience of their inhabitants.
16 Supra, Note 18, p. 844, citing Bernas, The 1987 Constitution of the Philippines, A
Commentary, pp. 95-98 [1996], citing UP Law Center Revision Project, Part II, 712 [1970] citing
Sady, "Improvement of Local Government Administration for Development Purpose," Journal of
Local Administration Overseas 135 [July 1962].
17 Ibid., pp. 849-860.
18 Entitled "An Act to Compile the Laws Relative to Land Transportation and Traffic Rules, to
Create a Land Transportation Commission and for Other Purposes," approved on 20 June 1964.
Sec. 29 thereof states:
Confiscation of driver's license.- Law enforcement and peace officers duly designated by
the Commissioner shall, in apprehending any driver for violations of this Act or of any
regulations issued pursuant thereto, or of local traffic rules and regulations, confiscate
the license of the driver concerned and issue a receipt prescribed and issued by the
Commission therefore which shall authorize the driver to operate a motor vehicle for a
period not exceeding seventy-two hours from the time and date of issue of said receipt.
The period so fixed in the receipt shall not be extended, and shall become invalid
thereafter. Failure of the driver to settle his case within fifteen days from the date of
apprehension will cause suspension and revocation of his license. (emphasis supplied)
19 Entitled "Granting the Metropolitan Manila Commission Certain Powers Related to Traffic
Management and Control in Metropolitan Manila, Providing Penalties, and for Other Purposes,"
dated 21 November 1978.
SEC. 5.- In case of traffic violations, the driver's license shall not be confiscated but the
erring driver shall be immediately issued a traffic citation ticket prescribed by the
Metropolitan Manila Commissionwhich shall state the violation committed, the amount of
fine imposed for the violation and an advice that he can make payment to the city or
municipal treasurer where the violation was committed or to the Philippine National Bank
or Philippine Veteran's Bank or their branches within seven days from the date of
issuance of the citation ticket. (emphasis supplied)
20 Section 3(b), Rep. Act No. 7924.
21 Thus, in Briad Agro Development Corporation v. dela Serna, (G.R. No. 82805, 29 June 1989,
174 SCRA 524) we upheld the grant of concurrent jurisdiction between the Secretary of Labor
or its Regional Directors and the Labor Arbiters to pass upon money claims, among other cases,
"the provisions of Article 217 of this Code to the contrary notwithstanding," as enunciated in
Executive Order No. 111. Holding that E.O. 111 was a curative law intended to widen worker's
access to the Government for redress of grievances, we held,"…the Executive Order vests in
Regional Directors jurisdiction, '[t]he provisions of Article 217 of this Code to the contrary
notwithstanding,' it would have rendered such a proviso - and the amendment itself - useless to
say that they (Regional Directors) retained the self-same restricted powers, despite such an
amendment. It is fundamental that a statute is to be read in a manner that would breathe life
into it, rather than defeat it." (See also Philtread Workers Union v. Confessor, G.R. No. 117169,
12 March 1997, 269 SCRA 393.)
22 In Heirs of Ardona v. Reyes, (G.R. No. 60549, 26 October 1983, 125 SCRA 221) we upheld
the constitutionality of Presidential Decree No. 564, the Revised Charter of the Philippine
Tourism Authority, and Proclamation No. 2052 declaring certain municipalities in the province of
Cebu as tourist zones. The law granted the Philippine Tourism authority the right to expropriate
282 hectares of land to establish a resort complex notwithstanding the claim that certificates of
land transfer and emancipation patents had already been issued to them thereby making the
lands expropriated within the coverage of the land reform area under Presidential Decree No. 2,
and that the agrarian reform program occupies a higher level in the order of priorities than other
State policies like those relating to the health and physical well-being of the people, and that
property already taken for public use may not be taken for another public use. We held that,
"(t)he petitioners have failed to overcome the burden of anyone trying to strike down a statute or
decree whose avowed purpose is the legislative perception of the public good. A statute has in
its favor the presumption of validity. All reasonable doubts should be resolved in favor of the
constitutionality of a law. The courts will not set aside a law as violative of the Constitution
except in a clear case (People v. Vera, 65 Phil. 56). And in the absence of factual findings or
evidence to rebut the presumption of validity, the presumption prevails (Ermita-Malate Hotel, etc.
v. Mayor of Manila, 20 SCRA 849; Morfe v. Mutuc, 22 SCRA 424)."
In the same manner, we upheld in Dumlao v. COMELEC (G.R. No. L-52245, 22 January 1980,
95 SCRA 392) the first paragraph of Section 4 of Batas Pambansa Bilang 52 providing that any
retired elective provincial, city or municipal official, who has received payment of the retirement
benefits and who shall have been 65 years of age at the commencement of the term of office to
which he seeks to be elected is disqualified to run for the same elective local office from which
he has retired. Invoking the need for the emergence of younger blood in local politics, we
affirmed that the constitutional guarantee is not violated by a reasonable classification based
upon substantial distinctions, where the classification is germane to the purpose of the law and
applies to all those belonging to the same class. (See also Tropical Homes, Inc, v. National
Housing Authority, G.R. No. L-48672, 31 July 1987 152 SCRA 540; Peralta v. COMELEC, G.R.
No. L-47791, 11 March 1978, 82 SCRA 55; People v. Vera, GR No. 45685, 65 Phil 56 [1937].)
23 Section 3(b), Republic Act No. 7924.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 97995 January 21, 1993
PHILIPPINE NATIONAL BANK, petitioner,
vs.
COURT OF APPEALS AND B.P. MATA AND CO., INC., respondents.
Roland A. Niedo for petitioner.
Benjamin C. Santos Law Office for respondent.
ROMERO, J.:
Rarely is this Court confronted with a case calling for the delineation in broad strokes of the
distinctions between such closely allied concepts as the quasi-contract called "solutio indebiti"
under the venerable Spanish Civil Code and the species of implied trust denominated
"constructive trusts," commonly regarded as of Anglo-American origin. Such a case is the one
presented to us now which has highlighted more of the affinity and less of the dissimilarity
between the two concepts as to lead the legal scholar into the error of interchanging the two.
Presented below are the factual circumstances that brought into juxtaposition the twin
institutions of the Civil Law quasi-contract and the Anglo-American trust.
Private Respondent B.P. Mata & Co. Inc. (Mata), is a private corporation engaged in providing
goods and services to shipping companies. Since 1966, it has acted as a manning or crewing
agent for several foreign firms, one of which is Star Kist Foods, Inc., USA (Star Kist). As part of
their agreement, Mata makes advances for the crew's medical expenses, National Seaman's
Board fees, Seaman's Welfare fund, and standby fees and for the crew's basic personal needs.
Subsequently, Mata sends monthly billings to its foreign principal Star Kist, which in turn
reimburses Mata by sending a telegraphic transfer through banks for credit to the latter's
account.
Against this background, on February 21, 1975, Security Pacific National Bank (SEPAC) of Los
Angeles which had an agency arrangement with Philippine National Bank (PNB), transmitted a
cable message to the International Department of PNB to pay the amount of US$14,000 to Mata
by crediting the latter's account with the Insular Bank of Asia and America (IBAA), per order of
Star Kist. Upon receipt of this cabled message on February 24, 1975, PNB's International
Department noticed an error and sent a service message to SEPAC Bank. The latter replied
with instructions that the amount of US$14,000 should only be for US$1,400.
On the basis of the cable message dated February 24, 1975 Cashier's Check No. 269522 in the
amount of US$1,400 (P9,772.95) representing reimbursement from Star Kist, was issued by the
Star Kist for the account of Mata on February 25, 1975 through the Insular Bank of Asia and
America (IBAA).
However, fourteen days after or on March 11, 1975, PNB effected another payment through
Cashier's Check No. 270271 in the amount of US$14,000 (P97,878.60) purporting to be another
transmittal of reimbursement from Star Kist, private respondent's foreign principal.
Six years later, or more specifically, on May 13, 1981, PNB requested Mata for refund of
US$14,000 (P97,878.60) after it discovered its error in effecting the second payment.
On February 4, 1982, PNB filed a civil case for collection and refund of US$14,000 against Mata
arguing that based on a constructive trust under Article 1456 of the Civil Code, it has a right to
recover the said amount it erroneously credited to respondent Mata. 1
After trial, the Regional Trial Court of Manila rendered judgment dismissing the complaint ruling
that the instant case falls squarely under Article 2154 on solutio indebiti and not under Article
1456 on constructive trust. The lower court ruled out constructive trust, applying strictly the
technical definition of a trust as "a right of property, real or personal, held by one party for the
benefit of another; that there is a fiduciary relation between a trustee and a cestui que trustas
regards certain property, real, personal, money or choses in action." 2
In affirming the lower court, the appellate court added in its opinion that under Article 2154 on
solutio indebiti, the person who makes the payment is the one who commits the mistake vis-a-
vis the recipient who is unaware of such a mistake. 3 Consequently, recipient is duty bound to
return the amount paid by mistake. But the appellate court concluded that petitioner's demand
for the return of US$14,000 cannot prosper because its cause of action had already prescribed
under Article 1145, paragraph 2 of the Civil Code which states:
The following actions must be commenced within six years:
xxx xxx xxx
(2) Upon a quasi-contract.
This is because petitioner's complaint was filed only on February 4, 1982, almost seven years
after March 11, 1975 when petitioner mistakenly made payment to private respondent.
Hence, the instant petition for certiorari proceeding seeking to annul the decision of the
appellate court on the basis that Mata's obligation to return US$14,000 is governed, in the
alternative, by either Article 1456 on constructive trust or Article 2154 of the Civil Code on quasi-
contract. 4
Article 1456 of the Civil Code provides:
If property is acquired through mistake or fraud, the person obtaining it is, by force of law,
considered a trustee of an implied trust for the benefit of the person from whom the
property comes.
On the other hand, Article 2154 states:
If something is received when there is no right to demand it, and it was unduly delivered
through mistake, the obligation to return it arises.
Petitioner naturally opts for an interpretation under constructive trust as its action filed on
February 4, 1982 can still prosper, as it is well within the prescriptive period of ten (10) years as
provided by Article 1144, paragraph 2 of the Civil Code. 5
If it is to be construed as a case of payment by mistake or solutio indebiti, then the prescriptive
period for quasi-contracts of six years applies, as provided by Article 1145. As pointed out by
the appellate court, petitioner's cause of action thereunder shall have prescribed, having been
brought almost seven years after the cause of action accrued. However, even assuming that the
instant case constitutes a constructive trust and prescription has not set in, the present action
has already been barred by laches.
To recall, trusts are either express or implied. While express trusts are created by the intention
of the trustor or of the parties, implied trusts come into being by operation of law. 6 Implied trusts
are those which, without being expressed, are deducible from the nature of the transaction as
matters of intent or which are superinduced on the transaction by operation of law as matters of
equity, independently of the particular intention of the parties. 7
A deeper analysis of Article 1456 reveals that it is not a trust in the technical sense 12 for in a
typical trust, confidence is reposed in one person who is named a trustee for the benefit of
another who is called the cestui que trust, respecting property which is held by the trustee for
the benefit of the cestui que trust. 13 A constructive trust, unlike an express trust, does not
emanate from, or generate a fiduciary relation. While in an express trust, a beneficiary and a
trustee are linked by confidential or fiduciary relations, in a constructive trust, there is neither a
promise nor any fiduciary relation to speak of and the so-called trustee neither accepts any trust
nor intends holding the property for the beneficiary. 14
In the case at bar, Mata, in receiving the US$14,000 in its account through IBAA, had no intent
of holding the same for a supposed beneficiary or cestui que trust, namely PNB. But under
Article 1456, the law construes a trust, namely a constructive trust, for the benefit of the person
from whom the property comes, in this case PNB, for reasons of justice and equity.
At this juncture, a historical note on the codal provisions on trust and quasi-contracts is in order.
Originally, under the Spanish Civil Code, there were only two kinds of quasi contracts:
negotiorum gestio and solutio indebiti. But the Code Commission, mindful of the position of the
eminent Spanish jurist, Manresa, that "the number of quasi contracts may be indefinite," added
Section 3 entitled "Other Quasi-Contracts." 15
Moreover, even as Article 2142 of the Civil Code defines a quasi-contract, the succeeding
article provides that: "The provisions for quasi-contracts in this Chapter do not exclude other
quasi-contracts which may come within the purview of the preceding article." 16
Indubitably, the Civil Code does not confine itself exclusively to the quasi-contracts enumerated
from Articles 2144 to 2175 but is open to the possibility that, absent a pre-existing relationship,
there being neither crime nor quasi-delict, a quasi-contractual relation may be forced upon the
parties to avoid a case of unjust enrichment. 17 There being no express consent, in the sense of
a meeting of minds between the parties, there is no contract to speak of. However, in view of
the peculiar circumstances or factual environment, consent is presumed to the end that a
recipient of benefits or favors resulting from lawful, voluntary and unilateral acts of another may
not be unjustly enriched at the expense of another.
Undoubtedly, the instant case fulfills the indispensable requisites of solutio indebiti as defined in
Article 2154 that something (in this case money) has been received when there was no right to
demand it and (2) the same was unduly delivered through mistake. There is a presumption that
there was a mistake in the payment "if something which had never been due or had already
been paid was delivered; but he from whom the return is claimed may prove that the delivery
was made out of liberality or for any other just cause." 18
In the case at bar, a payment in the corrected amount of US$1,400 through Cashier's Check No.
269522 had already been made by PNB for the account of Mata on February 25, 1975.
Strangely, however, fourteen days later, PNB effected another payment through Cashier's
Check No. 270271 in the amount of US$14,000, this time purporting to be another transmittal of
reimbursement from Star Kist, private respondent's foreign principal.
While the principle of undue enrichment or solutio indebiti, is not new, having been incorporated
in the subject on quasi-contracts in Title XVI of Book IV of the Spanish Civil Code entitled
"Obligations incurred without contract," 19the chapter on Trusts is fairly recent, having been
introduced by the Code Commission in 1949. Although the concept of trusts is nowhere to be
found in the Spanish Civil Code, the framers of our present Civil Code incorporated implied
trusts, which includes constructive trusts, on top of quasi-contracts, both of which embody the
principle of equity above strict legalism. 20
In analyzing the law on trusts, it would be instructive to refer to Anglo-American jurisprudence
on the subject. Under American Law, a court of equity does not consider a constructive trustee
for all purposes as though he were in reality a trustee; although it will force him to return the
property, it will not impose upon him the numerous fiduciary obligations ordinarily demanded
from a trustee of an express trust. 21 It must be borne in mind that in an express trust, the trustee
has active duties of management while in a constructive trust, the duty is merely to surrender
the property.
Still applying American case law, quasi-contractual obligations give rise to a personal liability
ordinarily enforceable by an action at law, while constructive trusts are enforceable by a
proceeding in equity to compel the defendant to surrender specific property. To be sure, the
distinction is more procedural than substantive. 22
Further reflection on these concepts reveals that a constructive "trust" is as much a misnomer
as a "quasi-contract," so far removed are they from trusts and contracts proper, respectively. In
the case of a constructive trust, as in the case of quasi-contract, a relationship is "forced" by
operation of law upon the parties, not because of any intention on their part but in order to
prevent unjust enrichment, thus giving rise to certain obligations not within the contemplation of
the parties. 23
Although we are not quite in accord with the opinion that "the trusts known to American and
English equity jurisprudence are derived from the fidei commissa of the Roman Law," 24 it is safe
to state that their roots are firmly grounded on such Civil Law principles are expressed in the
Latin maxim, "Nemo cum alterius detrimento locupletari potest,"25 particularly the concept of
constructive trust.
Returning to the instant case, while petitioner may indeed opt to avail of an action to enforce a
constructive trust or the quasi-contract of solutio indebiti, it has been deprived of a choice, for
prescription has effectively blocked quasi-contract as an alternative, leaving only constructive
trust as the feasible option.
Petitioner argues that the lower and appellate courts cannot indulge in semantics by holding that
in Article 1456 the recipient commits the mistake while in Article 2154, the recipient commits no
mistake. 26 On the other hand, private respondent, invoking the appellate court's reasoning,
would impress upon us that under Article 1456, there can be no mutual mistake. Consequently,
private respondent contends that the case at bar is one of solutio indebiti and not a constructive
trust.
We agree with petitioner's stand that under Article 1456, the law does not make any distinction
since mutual mistake is a possibility on either side — on the side of either the grantor or the
grantee. 27 Thus, it was error to conclude that in a constructive trust, only the person obtaining
the property commits a mistake. This is because it is also possible that a grantor, like PNB in
the case at hand, may commit the mistake.
Proceeding now to the issue of whether or not petitioner may still claim the US$14,000 it
erroneously paid private respondent under a constructive trust, we rule in the negative. Although
we are aware that only seven (7) years lapsed after petitioner erroneously credited private
respondent with the said amount and that under Article 1144, petitioner is well within the
prescriptive period for the enforcement of a constructive or implied trust, we rule that petitioner's
claim cannot prosper since it is already barred by laches. It is a well-settled rule now that an
action to enforce an implied trust, whether resulting or constructive, may be barred not only by
prescription but also by laches. 28
While prescription is concerned with the fact of delay, laches deals with the effect of
unreasonable delay. 29 It is amazing that it took petitioner almost seven years before it
discovered that it had erroneously paid private respondent. Petitioner would attribute its mistake
to the heavy volume of international transactions handled by the Cable and Remittance Division
of the International Department of PNB. Such specious reasoning is not persuasive. It is
unbelievable for a bank, and a government bank at that, which regularly publishes its balanced
financial statements annually or more frequently, by the quarter, to notice its error only seven
years later. As a universal bank with worldwide operations, PNB cannot afford to commit such
costly mistakes. Moreover, as between parties where negligence is imputable to one and not to
the other, the former must perforce bear the consequences of its neglect. Hence, petitioner
should bear the cost of its own negligence.
WHEREFORE, the decision of the Court of Appeals dismissing petitioner's claim against private
respondent is AFFIRMED.
Costs against petitioner.
SO ORDERED.
Bidin, Davide, Jr. and Melo, JJ., concur.
Gutierrez, Jr., J., concurs in the result.
# Footnotes
1 Records, p. 122.
2 Salao v. Salao, G.R. No. L-26699, March 16, 1976, 70 SCRA 65.
3 Rollo, p. 41.
4 Rollo, p. 27.
5 Article 1144. The following actions must be brought within ten years from the time the right of
action accrues:
xxx xxx xxx
(2) Upon an obligation created by law;
xxx xxx xxx
6 Article 1441, Civil Code.
7 89 CJS 724.
8 89 CJS 722.
9 89 CJS 725.
10 Aquino, Civil Code, Vol. II. pp. 556-557; Ramos v. Ramos, G.R. No. L-19872, December 3,
1974, 61 SCRA 284.
11 Salao v. Salao, G.R. No. L-26699, March 16, 1976, 70 SCRA 65.
12 Ramos v. Ramos, G.R. No. L-19872 December 3, 1974, 61 SCRA 284, citing Gayondato v.
Treasurer of the Philippine Islands, 49 Phil. 244.
13 State ex Wirt v. Superior Court for Spokane Country, 10 Wash. 2d, 362, 116 P. 2d 752, 755,
Article 1440 Civil Code.
14 Diaz v. Goricho, 103 Phil. 261.
15 Report of the Code Commission, p. 60.
16 Article 2143, Civil Code.
17 Report of the Code Commission, pp. 159-160.
18 Article 2163, Civil Code.
19 Lao Chit v. Security and Trust Co. and Consolidated Investment, Inc., 105 Phil. 490.
20 Report of the Code Commission, p. 26.
21 Scott on Trusts, Volume 3, p. 2315.
22 Ibid, p. 2312.
23 Scott on Trusts, Volume 3, p. 2316.
24 Government v. Abadilla, 46 Phil. 642 and Miguel et al v. Court of Appeals,
L-20274, October 30, 1969, 29 SCRA 760.
25 Translated as, "No one should be allowed to enrich himself unjustly at the expense of
another." (Jenk Cent. Cas. 4; 10 Barb. [N.Y.] 626, 633, "Cyclopedic Law Dictionary," 2nd Edition,
p. 688).
26 Rollo, p. 32.
27 Tolentino, Civil Code of the Philippines, Vol. IV, p. 685.
28 Villagonzalo v. IAC, G.R. No. 711110, November 22, 1988, 167 SCRA 535; Perez v. Ong
Chua, No. L-36850, September 23, 1982, 116 SCRA 732, 90 CJS 887-889 and 54 Am Jur., pp.
449-450.
29 Mapa III v. Guanzon, G.R. No. L-25605, June 20, 1977, 77 SCRA 387.
In turn, implied trusts are subdivided into resulting and constructive trusts. 8 A resulting trust is a
trust raised by implication of law and presumed always to have been contemplated by the
parties, the intention of which is found in the nature of the transaction, but not expressed in the
deed or instrument of conveyance. 9 Examples of resulting trusts are found in Articles 1448 to
1455 of the Civil Code. 10 On the other hand, a constructive trust is one not created by words
either expressly or impliedly, but by construction of equity in order to satisfy the demands of
justice. An example of a constructive trust is Article 1456 quoted above. 11
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 97995 January 21, 1993
PHILIPPINE NATIONAL BANK, petitioner,
vs.
COURT OF APPEALS AND B.P. MATA AND CO., INC., respondents.
Roland A. Niedo for petitioner.
Benjamin C. Santos Law Office for respondent.
ROMERO, J.:
Rarely is this Court confronted with a case calling for the delineation in broad strokes of the
distinctions between such closely allied concepts as the quasi-contract called "solutio indebiti"
under the venerable Spanish Civil Code and the species of implied trust denominated
"constructive trusts," commonly regarded as of Anglo-American origin. Such a case is the one
presented to us now which has highlighted more of the affinity and less of the dissimilarity
between the two concepts as to lead the legal scholar into the error of interchanging the two.
Presented below are the factual circumstances that brought into juxtaposition the twin
institutions of the Civil Law quasi-contract and the Anglo-American trust.
Private Respondent B.P. Mata & Co. Inc. (Mata), is a private corporation engaged in providing
goods and services to shipping companies. Since 1966, it has acted as a manning or crewing
agent for several foreign firms, one of which is Star Kist Foods, Inc., USA (Star Kist). As part of
their agreement, Mata makes advances for the crew's medical expenses, National Seaman's
Board fees, Seaman's Welfare fund, and standby fees and for the crew's basic personal needs.
Subsequently, Mata sends monthly billings to its foreign principal Star Kist, which in turn
reimburses Mata by sending a telegraphic transfer through banks for credit to the latter's
account.
Against this background, on February 21, 1975, Security Pacific National Bank (SEPAC) of Los
Angeles which had an agency arrangement with Philippine National Bank (PNB), transmitted a
cable message to the International Department of PNB to pay the amount of US$14,000 to Mata
by crediting the latter's account with the Insular Bank of Asia and America (IBAA), per order of
Star Kist. Upon receipt of this cabled message on February 24, 1975, PNB's International
Department noticed an error and sent a service message to SEPAC Bank. The latter replied
with instructions that the amount of US$14,000 should only be for US$1,400.
On the basis of the cable message dated February 24, 1975 Cashier's Check No. 269522 in the
amount of US$1,400 (P9,772.95) representing reimbursement from Star Kist, was issued by the
Star Kist for the account of Mata on February 25, 1975 through the Insular Bank of Asia and
America (IBAA).
However, fourteen days after or on March 11, 1975, PNB effected another payment through
Cashier's Check No. 270271 in the amount of US$14,000 (P97,878.60) purporting to be another
transmittal of reimbursement from Star Kist, private respondent's foreign principal.
Six years later, or more specifically, on May 13, 1981, PNB requested Mata for refund of
US$14,000 (P97,878.60) after it discovered its error in effecting the second payment.
On February 4, 1982, PNB filed a civil case for collection and refund of US$14,000 against Mata
arguing that based on a constructive trust under Article 1456 of the Civil Code, it has a right to
recover the said amount it erroneously credited to respondent Mata. 1
After trial, the Regional Trial Court of Manila rendered judgment dismissing the complaint ruling
that the instant case falls squarely under Article 2154 on solutio indebiti and not under Article
1456 on constructive trust. The lower court ruled out constructive trust, applying strictly the
technical definition of a trust as "a right of property, real or personal, held by one party for the
benefit of another; that there is a fiduciary relation between a trustee and a cestui que trustas
regards certain property, real, personal, money or choses in action." 2
In affirming the lower court, the appellate court added in its opinion that under Article 2154 on
solutio indebiti, the person who makes the payment is the one who commits the mistake vis-a-
vis the recipient who is unaware of such a mistake. 3 Consequently, recipient is duty bound to
return the amount paid by mistake. But the appellate court concluded that petitioner's demand
for the return of US$14,000 cannot prosper because its cause of action had already prescribed
under Article 1145, paragraph 2 of the Civil Code which states:
The following actions must be commenced within six years:
xxx xxx xxx
(2) Upon a quasi-contract.
This is because petitioner's complaint was filed only on February 4, 1982, almost seven years
after March 11, 1975 when petitioner mistakenly made payment to private respondent.
Hence, the instant petition for certiorari proceeding seeking to annul the decision of the
appellate court on the basis that Mata's obligation to return US$14,000 is governed, in the
alternative, by either Article 1456 on constructive trust or Article 2154 of the Civil Code on quasi-
contract. 4
Article 1456 of the Civil Code provides:
If property is acquired through mistake or fraud, the person obtaining it is, by force of law,
considered a trustee of an implied trust for the benefit of the person from whom the
property comes.
On the other hand, Article 2154 states:
If something is received when there is no right to demand it, and it was unduly delivered
through mistake, the obligation to return it arises.
Petitioner naturally opts for an interpretation under constructive trust as its action filed on
February 4, 1982 can still prosper, as it is well within the prescriptive period of ten (10) years as
provided by Article 1144, paragraph 2 of the Civil Code. 5
If it is to be construed as a case of payment by mistake or solutio indebiti, then the prescriptive
period for quasi-contracts of six years applies, as provided by Article 1145. As pointed out by
the appellate court, petitioner's cause of action thereunder shall have prescribed, having been
brought almost seven years after the cause of action accrued. However, even assuming that the
instant case constitutes a constructive trust and prescription has not set in, the present action
has already been barred by laches.
To recall, trusts are either express or implied. While express trusts are created by the intention
of the trustor or of the parties, implied trusts come into being by operation of law. 6 Implied trusts
are those which, without being expressed, are deducible from the nature of the transaction as
matters of intent or which are superinduced on the transaction by operation of law as matters of
equity, independently of the particular intention of the parties. 7
A deeper analysis of Article 1456 reveals that it is not a trust in the technical sense 12 for in a
typical trust, confidence is reposed in one person who is named a trustee for the benefit of
another who is called the cestui que trust, respecting property which is held by the trustee for
the benefit of the cestui que trust. 13 A constructive trust, unlike an express trust, does not
emanate from, or generate a fiduciary relation. While in an express trust, a beneficiary and a
trustee are linked by confidential or fiduciary relations, in a constructive trust, there is neither a
promise nor any fiduciary relation to speak of and the so-called trustee neither accepts any trust
nor intends holding the property for the beneficiary. 14
In the case at bar, Mata, in receiving the US$14,000 in its account through IBAA, had no intent
of holding the same for a supposed beneficiary or cestui que trust, namely PNB. But under
Article 1456, the law construes a trust, namely a constructive trust, for the benefit of the person
from whom the property comes, in this case PNB, for reasons of justice and equity.
At this juncture, a historical note on the codal provisions on trust and quasi-contracts is in order.
Originally, under the Spanish Civil Code, there were only two kinds of quasi contracts:
negotiorum gestio and solutio indebiti. But the Code Commission, mindful of the position of the
eminent Spanish jurist, Manresa, that "the number of quasi contracts may be indefinite," added
Section 3 entitled "Other Quasi-Contracts." 15
Moreover, even as Article 2142 of the Civil Code defines a quasi-contract, the succeeding
article provides that: "The provisions for quasi-contracts in this Chapter do not exclude other
quasi-contracts which may come within the purview of the preceding article." 16
Indubitably, the Civil Code does not confine itself exclusively to the quasi-contracts enumerated
from Articles 2144 to 2175 but is open to the possibility that, absent a pre-existing relationship,
there being neither crime nor quasi-delict, a quasi-contractual relation may be forced upon the
parties to avoid a case of unjust enrichment. 17 There being no express consent, in the sense of
a meeting of minds between the parties, there is no contract to speak of. However, in view of
the peculiar circumstances or factual environment, consent is presumed to the end that a
recipient of benefits or favors resulting from lawful, voluntary and unilateral acts of another may
not be unjustly enriched at the expense of another.
Undoubtedly, the instant case fulfills the indispensable requisites of solutio indebiti as defined in
Article 2154 that something (in this case money) has been received when there was no right to
demand it and (2) the same was unduly delivered through mistake. There is a presumption that
there was a mistake in the payment "if something which had never been due or had already
been paid was delivered; but he from whom the return is claimed may prove that the delivery
was made out of liberality or for any other just cause." 18
In the case at bar, a payment in the corrected amount of US$1,400 through Cashier's Check No.
269522 had already been made by PNB for the account of Mata on February 25, 1975.
Strangely, however, fourteen days later, PNB effected another payment through Cashier's
Check No. 270271 in the amount of US$14,000, this time purporting to be another transmittal of
reimbursement from Star Kist, private respondent's foreign principal.
While the principle of undue enrichment or solutio indebiti, is not new, having been incorporated
in the subject on quasi-contracts in Title XVI of Book IV of the Spanish Civil Code entitled
"Obligations incurred without contract," 19the chapter on Trusts is fairly recent, having been
introduced by the Code Commission in 1949. Although the concept of trusts is nowhere to be
found in the Spanish Civil Code, the framers of our present Civil Code incorporated implied
trusts, which includes constructive trusts, on top of quasi-contracts, both of which embody the
principle of equity above strict legalism. 20
In analyzing the law on trusts, it would be instructive to refer to Anglo-American jurisprudence
on the subject. Under American Law, a court of equity does not consider a constructive trustee
for all purposes as though he were in reality a trustee; although it will force him to return the
property, it will not impose upon him the numerous fiduciary obligations ordinarily demanded
from a trustee of an express trust. 21 It must be borne in mind that in an express trust, the trustee
has active duties of management while in a constructive trust, the duty is merely to surrender
the property.
Still applying American case law, quasi-contractual obligations give rise to a personal liability
ordinarily enforceable by an action at law, while constructive trusts are enforceable by a
proceeding in equity to compel the defendant to surrender specific property. To be sure, the
distinction is more procedural than substantive. 22
Further reflection on these concepts reveals that a constructive "trust" is as much a misnomer
as a "quasi-contract," so far removed are they from trusts and contracts proper, respectively. In
the case of a constructive trust, as in the case of quasi-contract, a relationship is "forced" by
operation of law upon the parties, not because of any intention on their part but in order to
prevent unjust enrichment, thus giving rise to certain obligations not within the contemplation of
the parties. 23
Although we are not quite in accord with the opinion that "the trusts known to American and
English equity jurisprudence are derived from the fidei commissa of the Roman Law," 24 it is safe
to state that their roots are firmly grounded on such Civil Law principles are expressed in the
Latin maxim, "Nemo cum alterius detrimento locupletari potest,"25 particularly the concept of
constructive trust.
Returning to the instant case, while petitioner may indeed opt to avail of an action to enforce a
constructive trust or the quasi-contract of solutio indebiti, it has been deprived of a choice, for
prescription has effectively blocked quasi-contract as an alternative, leaving only constructive
trust as the feasible option.
Petitioner argues that the lower and appellate courts cannot indulge in semantics by holding that
in Article 1456 the recipient commits the mistake while in Article 2154, the recipient commits no
mistake. 26 On the other hand, private respondent, invoking the appellate court's reasoning,
would impress upon us that under Article 1456, there can be no mutual mistake. Consequently,
private respondent contends that the case at bar is one of solutio indebiti and not a constructive
trust.
We agree with petitioner's stand that under Article 1456, the law does not make any distinction
since mutual mistake is a possibility on either side — on the side of either the grantor or the
grantee. 27 Thus, it was error to conclude that in a constructive trust, only the person obtaining
the property commits a mistake. This is because it is also possible that a grantor, like PNB in
the case at hand, may commit the mistake.
Proceeding now to the issue of whether or not petitioner may still claim the US$14,000 it
erroneously paid private respondent under a constructive trust, we rule in the negative. Although
we are aware that only seven (7) years lapsed after petitioner erroneously credited private
respondent with the said amount and that under Article 1144, petitioner is well within the
prescriptive period for the enforcement of a constructive or implied trust, we rule that petitioner's
claim cannot prosper since it is already barred by laches. It is a well-settled rule now that an
action to enforce an implied trust, whether resulting or constructive, may be barred not only by
prescription but also by laches. 28
While prescription is concerned with the fact of delay, laches deals with the effect of
unreasonable delay. 29 It is amazing that it took petitioner almost seven years before it
discovered that it had erroneously paid private respondent. Petitioner would attribute its mistake
to the heavy volume of international transactions handled by the Cable and Remittance Division
of the International Department of PNB. Such specious reasoning is not persuasive. It is
unbelievable for a bank, and a government bank at that, which regularly publishes its balanced
financial statements annually or more frequently, by the quarter, to notice its error only seven
years later. As a universal bank with worldwide operations, PNB cannot afford to commit such
costly mistakes. Moreover, as between parties where negligence is imputable to one and not to
the other, the former must perforce bear the consequences of its neglect. Hence, petitioner
should bear the cost of its own negligence.
WHEREFORE, the decision of the Court of Appeals dismissing petitioner's claim against private
respondent is AFFIRMED.
Costs against petitioner.
SO ORDERED.
Bidin, Davide, Jr. and Melo, JJ., concur.
Gutierrez, Jr., J., concurs in the result.
# Footnotes
1 Records, p. 122.
2 Salao v. Salao, G.R. No. L-26699, March 16, 1976, 70 SCRA 65.
3 Rollo, p. 41.
4 Rollo, p. 27.
5 Article 1144. The following actions must be brought within ten years from the time the right of
action accrues:
xxx xxx xxx
(2) Upon an obligation created by law;
xxx xxx xxx
6 Article 1441, Civil Code.
7 89 CJS 724.
8 89 CJS 722.
9 89 CJS 725.
10 Aquino, Civil Code, Vol. II. pp. 556-557; Ramos v. Ramos, G.R. No. L-19872, December 3,
1974, 61 SCRA 284.
11 Salao v. Salao, G.R. No. L-26699, March 16, 1976, 70 SCRA 65.
12 Ramos v. Ramos, G.R. No. L-19872 December 3, 1974, 61 SCRA 284, citing Gayondato v.
Treasurer of the Philippine Islands, 49 Phil. 244.
13 State ex Wirt v. Superior Court for Spokane Country, 10 Wash. 2d, 362, 116 P. 2d 752, 755,
Article 1440 Civil Code.
14 Diaz v. Goricho, 103 Phil. 261.
15 Report of the Code Commission, p. 60.
16 Article 2143, Civil Code.
17 Report of the Code Commission, pp. 159-160.
18 Article 2163, Civil Code.
19 Lao Chit v. Security and Trust Co. and Consolidated Investment, Inc., 105 Phil. 490.
20 Report of the Code Commission, p. 26.
21 Scott on Trusts, Volume 3, p. 2315.
22 Ibid, p. 2312.
23 Scott on Trusts, Volume 3, p. 2316.
24 Government v. Abadilla, 46 Phil. 642 and Miguel et al v. Court of Appeals,
L-20274, October 30, 1969, 29 SCRA 760.
25 Translated as, "No one should be allowed to enrich himself unjustly at the expense of
another." (Jenk Cent. Cas. 4; 10 Barb. [N.Y.] 626, 633, "Cyclopedic Law Dictionary," 2nd Edition,
p. 688).
26 Rollo, p. 32.
27 Tolentino, Civil Code of the Philippines, Vol. IV, p. 685.
28 Villagonzalo v. IAC, G.R. No. 711110, November 22, 1988, 167 SCRA 535; Perez v. Ong
Chua, No. L-36850, September 23, 1982, 116 SCRA 732, 90 CJS 887-889 and 54 Am Jur., pp.
449-450.
29 Mapa III v. Guanzon, G.R. No. L-25605, June 20, 1977, 77 SCRA 387
In turn, implied trusts are subdivided into resulting and constructive trusts. 8 A resulting trust is a
trust raised by implication of law and presumed always to have been contemplated by the
parties, the intention of which is found in the nature of the transaction, but not expressed in the
deed or instrument of conveyance. 9 Examples of resulting trusts are found in Articles 1448 to
1455 of the Civil Code. 10 On the other hand, a constructive trust is one not created by words
either expressly or impliedly, but by construction of equity in order to satisfy the demands of
justice. An example of a constructive trust is Article 1456 quoted above. 11
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-29131 August 27, 1969
NATIONAL MARKETING CORPORATION, plaintiff-appellant,
vs.
MIGUEL D. TECSON, ET AL., defendants,
MIGUEL D. TECSON, defendant-appellee,
THE INSURANCE COMMISSIONER, petitioner.
Government Corporate Counsel Leopoldo M. Abellera and Trial Atty. Antonio M. Brillantes for
plaintiff-appellant.
Antonio T. Lacdan for defendant-appellee.
Office of the Solicitor General for petitioner.
CONCEPCION, C.J.:
This appeal has been certified to us by the Court of Appeals only one question of law being
involved therein.
On November 14, 1955, the Court of First Instance of Manila rendered judgment, in Civil Case
No. 20520 thereof, entitled "Price Stabilization Corporation vs. Miguel D. Tecson and Alto
Surety and Insurance Co., Inc.," the dispositive part of which reads as follows:
For the foregoing consideration, the Court decides this case:
(a) Ordering the defendants Miguel D. Tecson and Alto Surety Insurance Co., Inc. to pay jointly
and severally plaintiff PRATRA the sum of P7,200.00 plus 7% interest from May 25, 1960 until
the amount is fully paid, plus P500.00 for attorney's fees, and plus costs;
(b) ordering defendant Miguel D. Tecson to indemnify his co-defendant Alto Surety & Insurance
Co., Inc. on the cross-claim for all the amounts it would be made to pay in this decision, in case
defendant Alto Surety & Insurance Co., Inc. pay the amount adjudged to plaintiff in this decision.
From the date of such payment defendant Miguel D. Tecson would pay the Alto Surety &
Insurance Co., Inc., interest at 12% per annum until Miguel D. Tecson has fully reimbursed
plaintiff of the said amount.
Copy of this decision was, on November 21, 1955, served upon the defendants in said case. On
December 21, 1965, the National Marketing Corporation, as successor to all the properties,
assets, rights, and choses in action of the Price Stabilization Corporation, as plaintiff in that case
and judgment creditor therein, filed, with the same court, a complaint, docketed as Civil Case
No. 63701 thereof, against the same defendants, for the revival of the judgment rendered in
said Case No. 20520. Defendant Miguel D. Tecson moved to dismiss said complaint, upon the
ground of lack of jurisdiction over the subject matter thereof and prescription of action. Acting
upon the motion and plaintiff's opposition thereto, said Court issued, on February 14, 1966, an
order reading:
Defendant Miguel Tecson seeks the dismissal of the complaint on the ground of lack of
jurisdiction and prescription. As for lack of jurisdiction, as the amount involved is less than
P10,000 as actually these proceedings are a revival of a decision issued by this same court, the
matter of jurisdiction must be admitted. But as for prescription. Plaintiffs admit the decision of
this Court became final on December 21, 1955. This case was filed exactly on December 21,
1965 — but more than ten years have passed a year is a period of 365 days (Art. 13, CCP).
Plaintiff forgot that 1960, 1964 were both leap years so that when this present case was filed it
was filed two days too late.
The complaint insofar as Miguel Tecson is concerned is, therefore, dismissed as having
prescribed.1äwphï1.ñët
The National Marketing Corporation appealed from such order to the Court of Appeals, which,
on March 20, 1969t certified the case to this Court, upon the ground that the only question
therein raised is one of law, namely, whether or not the present action for the revival of a
judgment is barred by the statute of limitations.
Pursuant to Art. 1144(3) of our Civil Code, an action upon a judgment "must be brought within
ten years from the time the right of action accrues," which, in the language of Art. 1152 of the
same Code, "commences from the time the judgment sought to be revived has become final."
This, in turn, took place on December 21, 1955, or thirty (30) days from notice of the judgment
— which was received by the defendants herein on November 21, 1955 — no appeal having
been taken therefrom. 1 The issue is thus confined to the date on which ten (10) years from
December 21, 1955 expired.
Plaintiff-appellant alleges that it was December 21, 1965, but appellee Tecson maintains
otherwise, because "when the laws speak of years ... it shall be understood that years are of
three hundred sixty-five days each" — according to Art. 13 of our Civil Code — and, 1960 and
1964 being leap years, the month of February in both had 29 days, so that ten (10) years of 365
days each, or an aggregate of 3,650 days, from December 21, 1955, expired on December 19,
1965. The lower court accepted this view in its appealed order of dismissal.
Plaintiff-appellant insists that the same "is erroneous, because a year means a calendar year
(Statutory Construction, Interpretation of Laws, by Crawford, p. 383) and since what is being
computed here is the number of years, a calendar year should be used as the basis of
computation. There is no question that when it is not a leap year, December 21 to December 21
of the following year is one year. If the extra day in a leap year is not a day of the year, because
it is the 366th day, then to what year does it belong? Certainly, it must belong to the year where
it falls and, therefore, that the 366 days constitute one year." 2
The very conclusion thus reached by appellant shows that its theory contravenes the explicit
provision of Art. 13 of the Civil Code of the Philippines, limiting the connotation of each "year" —
as the term is used in our laws — to 365 days. Indeed, prior to the approval of the Civil Code of
Spain, the Supreme Court thereof had held, on March 30, 1887, that, when the law spoke of
months, it meant a "natural" month or "solar" month, in the absence of express provision to the
contrary. Such provision was incorporated into the Civil Code of Spain, subsequently
promulgated. Hence, the same Supreme Court declared 3 that, pursuant to Art. 7 of said Code,
"whenever months ... are referred to in the law, it shall be understood that the months are of 30
days," not the "natural," or "solar" or "calendar" months, unless they are "designated by name,"
in which case "they shall be computed by the actual number of days they have. This concept
was later, modified in the Philippines, by Section 13 of the Revised Administrative Code,
Pursuant to which, "month shall be understood to refer to a calendar month." 4 In the language
of this Court, inPeople vs. Del Rosario, 5 with the approval of the Civil Code of the Philippines
(Republic Act 386) ... we havereverted to the provisions of the Spanish Civil Code in
accordance with which a month is to be considered as the regular 30-day month ... and not the
solar or civil month," with the particularity that, whereas the Spanish Code merely mentioned
"months, days or nights," ours has added thereto the term "years" and explicitly ordains that "it
shall be understood that years are of three hundred sixty-five days."
Although some members of the Court are inclined to think that this legislation is not realistic, for
failure to conform with ordinary experience or practice, the theory of plaintiff-appellant herein
cannot be upheld without ignoring, if not nullifying, Art. 13 of our Civil Code, and reviving
Section 13 of the Revised Administrative Code, thereby engaging in judicial legislation, and, in
effect, repealing an act of Congress. If public interest demands a reversion to the policy
embodied in the Revised Administrative Code, this may be done through legislative process, not
by judicial decree.
WHEREFORE, the order appealed from should be as it is hereby affirmed, without costs. It is so
ordered.
Dizon, Makalintal, Sanchez, Castro, Fernando, Capistrano, Teehankee and Barredo, JJ., concur.
Reyes, J.B.L., and Zaldivar, JJ., are on leave.
Footnotes
1Sec. 1, Rule 39, in relation to Sec. 3, Rule 31, Rules of Court.
2Emphasis ours.
3Decision of April 6, 1895.
4Guzman v. Lichauco, 42 Phil. 292; Gutierrez v. Carpio, 53 Phil. 334, 335-336.
597 Phil. 70-71.
Republic of the Philippines
SUPREME COURT
Baguio City
EN BANC
G.R. No. 124893 April 18, 1997
LYNETTE G. GARVIDA, petitioner,
vs.
FLORENCIO G. SALES, JR., THE HONORABLE COMMISSION ON ELECTIONS, ELECTION
OFFICER DIONISIO F. RIOS and PROVINCIAL SUPERVISOR NOLI PIPO, respondents.
PUNO, J.:
Petitioner Lynette G. Garvida seeks to annul and set aside the order dated May 2, 1996 of
respondent Commission on Elections (COMELEC) en banc suspending her proclamation as the
duly elected Chairman of the Sangguniang Kabataan of Barangay San Lorenzo, Municipality of
Bangui, Ilocos Norte.
The facts are undisputed. The Sangguniang Kabataan (SK) elections nationwide was scheduled
to be held on May 6, 1996. On March 16, 1996, petitioner applied for registration as member
and voter of the Katipunan ng Kabataan of Barangay San Lorenzo, Bangui, Ilocos Norte. The
Board of Election Tellers, however, denied her application on the ground that petitioner, who
was then twenty-one years and ten (10) months old, exceeded the age limit for membership in
the Katipunan ng Kabataan as laid down in Section 3 [b] of COMELEC Resolution No. 2824.
On April 2, 1996, petitioner filed a "Petition for Inclusion as Registered Kabataang Member and
Voter" with the Municipal Circuit Trial Court, Bangui-Pagudpud-Adams-Damalneg, Ilocos Norte.
In a decision dated April 18, 1996, the said court found petitioner qualified and ordered her
registration as member and voter in the Katipunan ng Kabataan. 1 The Board of Election Tellers
appealed to the Regional Trial Court, Bangui, Ilocos Norte. 2 The presiding judge of the
Regional Trial Court, however, inhibited himself from acting on the appeal due to his close
association with petitioner. 3
On April 23, 1996, petitioner filed her certificate of candidacy for the position of Chairman,
Sangguniang Kabataan, Barangay San Lorenzo, Municipality of Bangui, Province of Ilocos
Norte. In a letter dated April 23, 1996, respondent Election Officer Dionisio F. Rios, per advice
of Provincial Election Supervisor Noli Pipo, 4 disapproved petitioner's certificate of candidacy
again due to her age. 5 Petitioner, however, appealed to COMELEC Regional Director Filemon
A. Asperin who set aside the order of respondents and allowed petitioner to run. 6
On May 2, 1996, respondent Rios issued a memorandum to petitioner informing her of her
ineligibility and giving her 24 hours to explain why her certificate of candidacy should not be
disapproved. 7 Earlier and without the knowledge of the COMELEC officials, private respondent
Florencio G. Sales, Jr., a rival candidate for Chairman of the Sangguniang Kabataan, filed with
the COMELEC en banc a "Petition of Denial and/or Cancellation of Certificate of Candidacy"
against petitioner Garvida for falsely representing her age qualification in her certificate of
candidacy. The petition was sent by facsimile 8 and registered mail on April 29, 1996 to the
Commission on Elections National Office, Manila.
On May 2, 1996, the same day respondent Rios issued the memorandum to petitioner, the
COMELEC en bancissued an order directing the Board of Election Tellers and Board of
Canvassers of Barangay San Lorenzo to suspend the proclamation of petitioner in the event
she won in the election. The order reads as follows:
Acting on the Fax "Petition for Denial And/Or Cancellation of Certificate of Candidacy" by
petitioner Florencio G. Sales, Jr. against Lynette G. Garvida, received on April 29, 1996,
the pertinent allegations of which reads:
xxx xxx xxx
5. That the said respondent is disqualified to become a voter and a candidate for the SK for the
reason that she will be more than twenty-one (21) years of age on May 6, 1996; that she was
born on June 11, 1974 as can be gleaned from her birth certificate, copy of which is hereto
attached and marked as Annex "A";
6. That in filing her certificate of candidacy as candidate for SK of Bgy. San Lorenzo, Bangui,
Ilocos Norte, she made material representation which is false and as such, she is disqualified;
that her certificate of candidacy should not be given due course and that said candidacy must
be cancelled;
xxx xxx xxx
the Commission, it appearing that the petition is meritorious, hereby DIRECTS the Board of
Election Tellers/Board of Canvassers of Barangay San Lorenzo, Bangui, Ilocos Norte, to
suspend the proclamation of Lynette G. Garvida in the event she garners the highest number of
votes for the position of Sangguniang Kabataan [sic].
Meantime, petitioner is hereby required to submit immediately ten (10) copies of his petition and
to pay the filing and legal research fees in the amount of P510.00.
SO ORDERED. 9
On May 6, 1996, election day, petitioner garnered 78 votes as against private respondent's
votes of 76. 10 In accordance with the May 2, 1996 order of the COMELEC en banc, the Board
of Election Tellers did not proclaim petitioner as the winner. Hence, the instant petition for
certiorari was filed on May 27, 1996.
On June 2, 1996, however, the Board of Election Tellers proclaimed petitioner the winner for the
position of SK chairman, Barangay San Lorenzo, Bangui, Ilocos Norte. 11 The proclamation was
"without prejudice to any further action by the Commission on Elections or any other interested
party." 12 On July 5, 1996, petitioner ran in the Pambayang Pederasyon ng mga Sangguniang
Kabataan for the municipality of Bangui, Ilocos Norte. She won as Auditor and was proclaimed
one of the elected officials of the Pederasyon. 13
Petitioner raises two (2) significant issues: the first concerns the jurisdiction of the COMELEC
en banc to act on the petition to deny or cancel her certificate of candidacy; the second, the
cancellation of her certificate of candidacy on the ground that she has exceeded the age
requirement to run as an elective official of the SK.
I
Section 532 (a) of the Local Government Code of 1991 provides that the conduct of the SK
elections is under the supervision of the COMELEC and shall be governed by the Omnibus
Election Code. 14 The Omnibus Election Code, in Section 78, Article IX, governs the procedure
to deny due course to or cancel a certificate of candidacy, viz:
Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. — A verified
petition seeking to deny due course or to cancel a certificate of candidacy may be filed
by any person exclusively on the ground that any material representation contained
therein as required under Section 74 hereof is false. The petition may be filed at any
time not later than twenty-five days from the time of filing of the certificate of candidacy
and shall be decided, after due notice and hearing, not later than fifteen days before
election.
In relation thereto, Rule 23 of the COMELEC Rules of Procedure provides that a petition to deny
due course to or cancel a certificate of candidacy for an elective office may be filed with the Law
Department of the COMELEC on the ground that the candidate has made a false material
representation in his certificate. The petition may be heard and evidence received by any official
designated by the COMELEC after which the case shall be decided by the COMELEC itself. 15
Under the same Rules of Procedure, jurisdiction over a petition to cancel a certificate of
candidacy lies with the COMELEC sitting in Division, not en banc. Cases before a Division may
only be entertained by the COMELEC en banc when the required number of votes to reach a
decision, resolution, order or ruling is not obtained in the Division. Moreover, only motions to
reconsider decisions, resolutions, orders or rulings of the COMELEC in Division are resolved by
the COMELEC en banc. 16 It is therefore the COMELEC sitting in Divisions that can hear and
decide election cases. This is clear from Section 3 of the said Rules thus:
Sec. 3. The Commission Sitting in Divisions. — The Commission shall sit in two (2)
Divisions to hear and decide protests or petitions in ordinary actions, special actions,
special cases, provisional remedies, contempt and special proceedings except in
accreditation of citizens' arms of the Commission. 17
In the instant case, the COMELEC en banc did not refer the case to any of its Divisions upon
receipt of the petition. It therefore acted without jurisdiction or with grave abuse of discretion
when it entertained the petition and issued the order of May 2, 1996. 18
II
The COMELEC en banc also erred when it failed to note that the petition itself did not comply
with the formal requirements of pleadings under the COMELEC Rules of Procedure. These
requirements are:
Sec. 1. Filing of Pleadings. — Every pleading, motion and other papers must be filed in
ten (10) legible copies. However, when there is more than one respondent or protestee,
the petitioner or protestant must file additional number of copies of the petition or protest
as there are additional respondents or protestees.
Sec. 2. How Filed. — The documents referred to in the immediately preceding section must be
filed directly with the proper Clerk of Court of the Commission personally, or, unless otherwise
provided in these Rules, by registered mail. In the latter case, the date of mailing is the date of
filing and the requirement as to the number of copies must be complied with.
Sec. 3. Form of Pleadings, etc. — (a) All pleadings allowed by these Rules shall be printed,
mimeographed or typewritten on legal size bond paper and shall be in English or Filipino.
xxx xxx xxx
Every pleading before the COMELEC must be printed, mimeographed or typewritten in legal
size bond paper and filed in at least ten (10) legible copies. Pleadings must be filed directly with
the proper Clerk of Court of the COMELEC personally, or, by registered mail.
In the instant case, the subject petition was not in proper form. Only two (2) copies of the
petition were filed with the COMELEC. 19 Also, the COMELEC en banc issued its Resolution on
the basis of the petition transmitted by facsimile, not by registered mail.
A facsimile or fax transmission is a process involving the transmission and reproduction of
printed and graphic matter by scanning an original copy, one elemental area at a time, and
representing the shade or tone of each area by a specified amount of electric current. 20 The
current is transmitted as a signal over regular telephone lines or via microwave relay and is
used by the receiver to reproduce an image of the elemental area in the proper position and the
correct shade. 21 The receiver is equipped with a stylus or other device that produces a printed
record on paper referred to as a facsimile. 22
Filing a pleading by facsimile transmission is not sanctioned by the COMELEC Rules of
Procedure, much less by the Rules of Court. A facsimile is not a genuine and authentic pleading.
It is, at best, an exact copy preserving all the marks of an original. 23 Without the original, there
is no way of determining on its face whether the facsimile pleading is genuine and authentic and
was originally signed by the party and his counsel. It may, in fact, be a sham pleading. The
uncertainty of the authenticity of a facsimile pleading should have restrained the COMELEC en
banc from acting on the petition and issuing the questioned order. The COMELEC en banc
should have waited until it received the petition filed by registered mail.
III
To write finis to the case at bar, we shall now resolve the issue of petitioner's age.
The Katipunan ng Kabataan was originally created by Presidential Decree No. 684 in 1975 as
the Kabataang Barangay, a barangay youth organization composed of all residents of the
barangay who were at least 15 years but less than 18 years of age. 24 The Kabataang Barangay
sought to provide its members a medium to express their views and opinions and participate in
issues of transcendental importance. 25 Its affairs were administered by a barangay youth
chairman together with six barangay youth leaders who were actual residents of the barangay
and were at least 15 years but less than 18 years of age. 26 In 1983, Batas Pambansa Blg. 337,
then the Local Government Code, raised the maximum age of the Kabataang Barangay
members from "less than 18 years of age" to "not more than 21 years of age."
Membership in the Katipunan ng Kabataan is subject to specific qualifications laid down by the
Local Government Code of 1991, viz:
Sec. 424. Katipunan ng Kabataan. — The katipunan ng kabataan shall be composed of
all citizens of the Philippines actually residing in the barangay for at least six (6) months,
who are fifteen (15) but not more than twenty-one (21) years of age, and who are duly
registered in the list of the sangguniang kabataan or in the official barangay list in the
custody of the barangay secretary.
A member of the Katipunan ng Kabataan may become a candidate for the Sangguniang
Kabataan if he possesses the following qualifications:
Sec. 428. Qualifications. — An elective official of the sangguniang kabataan must be a
citizen of the Philippines, a qualified voter of the katipunan ng kabataan, a resident of the
barangay for at least one (1) year immediately prior to election, at least fifteen (15) years
but not more than twenty-one (21) years of age on the day of his election, able to read
and write Filipino, English, or the local dialect, and must not have been convicted of any
crime involving moral turpitude.
Under Section 424 of the Local Government Code, a member of the Katipunan ng Kabataan
must be: (a) a Filipino citizen; (b) an actual resident of the barangay for at least six months; (c)
15 but not more than 21 years of age; and (d) duly registered in the list of the Sangguniang
Kabataan or in the official barangay list. Section 428 of the Code requires that an elective official
of the Sangguniang Kabataan must be: (a) a Filipino citizen; (b) a qualified voter in the
Katipunan ng Kabataan; (c) a resident of the barangay at least one (1) year immediately
preceding the election; (d) at least 15 years but not more than 21 years of age on the day of his
election; (e) able to read and write; and (f) must not have been convicted of any crime involving
moral turpitude.
For the May 6, 1996 SK elections, the COMELEC interpreted Sections 424 and 428 of the Local
Government Code of 1991 in Resolution No. 2824 and defined how a member of the Katipunan
ng Kabataan becomes a qualified voter and an elective official. Thus:
Sec. 3. Qualifications of a voter. — To be qualified to register as a voter in the SK
elections, a person must be:
a) a citizen of the Philippines;
b) fifteen (15) but not more than twenty-one (21) years of age on election day that is, he must
have been born between May 6, 1975 and May 6, 1981, inclusive; and
c) a resident of the Philippines for at least one (1) year and actually residing in the barangay
wherein he proposes to vote for at least six (6) months immediately preceding the elections.
xxx xxx xxx
Sec. 6. Qualifications of elective members. — An elective official of the SK must be:
a) a qualified voter;
b) a resident in the barangay for at least one (1) year immediately prior to the elections; and
c) able to read and write Filipino or any Philippine language or dialect or English.
Cases involving the eligibility or qualification of candidates shall be decided by the city/municipal
Election Officer (EO) whose decision shall be final.
A member of the Katipunan ng Kabataan may be a qualified voter in the May 6, 1996 SK
elections if he is: (a) a Filipino citizen; (b) 15 but not more than 21 years of age on election day,
i.e., the voter must be born between May 6, 1975 and May 6, 1981, inclusive; and (c) a resident
of the Philippines for at least one (1) year and an actual resident of the barangay at least six (6)
months immediately preceding the elections. A candidate for the SK must: (a) possess the
foregoing qualifications of a voter; (b) be a resident in the barangay at least one (1) year
immediately preceding the elections; and (c) able to read and write.
Except for the question of age, petitioner has all the qualifications of a member and voter in the
Katipunan ng Kabataan and a candidate for the Sangguniang Kabataan. Petitioner 's age is
admittedly beyond the limit set in Section 3 [b] of COMELEC Resolution No. 2824. Petitioner,
however, argues that Section 3 [b] of Resolution No. 2824 is unlawful, ultra vires and beyond
the scope of Sections 424 and 428 of the Local Government Code of 1991. She contends that
the Code itself does not provide that the voter must be exactly 21 years of age on election day.
She urges that so long as she did not turn twenty-two (22) years old, she was still twenty-one
years of age on election day and therefore qualified as a member and voter in the Katipunan ng
Kabataan and as candidate for the SK elections.
A closer look at the Local Government Code will reveal a distinction between the maximum age
of a member in the Katipunan ng Kabataan and the maximum age of an elective SK official.
Section 424 of the Code sets a member's maximum age at 21 years only. There is no further
provision as to when the member shall have turned 21 years of age. On the other hand, Section
428 provides that the maximum age of an elective SK official is 21 years old "on the day of his
election." The addition of the phrase "or the day of his election" is an additional qualification.
The member may be more than 21 years of age on election day or on the day he registers as
member of the Katipunan ng Kabataan. The elective official, however, must not be more than 21
years old on the day of election. The distinction is understandable considering that the Code
itself provides more qualifications for an elective SK official than for a member of the Katipunan
ng Kabataan. Dissimilum dissimilis est ratio. 31 The courts may distinguish when there are facts
and circumstances showing that the legislature intended a distinction or qualification. 32
The qualification that a voter in the SK elections must not be more than 21 years of age on the
day of the election is not provided in Section 424 of the Local Government Code of 1991. In fact
the term "qualified voter" appears only in COMELEC Resolution No. 2824. 33 Since a "qualified
voter" is not necessarily an elective official, then it may be assumed that a "qualified voter" is a
"member of the Katipunan ng Kabataan." Section 424 of the Code does not provide that the
maximum age of a member of the Katipunan ng Kabataan is determined on the day of the
election. Section 3 [b] of COMELEC Resolution No. 2824 is therefore ultra vires insofar as it
sets the age limit of a voter for the SK elections at exactly 21 years on the day of the election.
The provision that an elective official of the SK should not be more than 21 years of age on the
day of his election is very clear. The Local Government Code speaks of years, not months nor
days. When the law speaks of years, it is understood that years are of 365 days each. 34 One
born on the first day of the year is consequently deemed to be one year old on the 365th day
after his birth — the last day of the year. 35 In computing years, the first year is reached after
completing the first 365 days. After the first 365th day, the first day of the second 365-day cycle
begins. On the 365th day of the second cycle, the person turns two years old. This cycle goes
on and on in a lifetime. A person turns 21 years old on the 365th day of his 21st 365-day cycle.
This means on his 21st birthday, he has completed the entire span of 21 365-day cycles. After
this birthday, the 365-day cycle for his 22nd year begins. The day after the 365th day is the first
day of the next 365-day cycle and he turns 22 years old on the 365th day.
The phrase "not more than 21 years of age" means not over 21 years, not beyond 21 years. It
means 21 365-day cycles. It does not mean 21 years and one or some days or a fraction of a
year because that would be more than 21 365-day cycles. "Not more than 21 years old" is not
equivalent to "less than 22 years old," contrary to petitioner's claims. The law does not state that
the candidate be less than 22 years on election day.
In P.D. 684, the law that created the Kabataang Barangay, the age qualification of a barangay
youth official was expressly stated as ". . . at least fifteen years of age or over but less than
eighteen . . ." 36 This provision clearly states that the youth official must be at least 15 years old
and may be 17 years and a fraction of a year but should not reach the age of eighteen years.
When the Local Government Code increased the age limit of members of the youth organization
to 21 years, it did not reenact the provision in such a way as to make the youth "at least 15 but
less than 22 years old." If the intention of the Code's framers was to include citizens less than
22 years old, they should have stated so expressly instead of leaving the matter open to
confusion and doubt. 37
Former Senator Aquilino Q. Pimentel, the sponsor and principal author of the Local Government
Code of 1991 declared that one of the reasons why the Katipunan ng Kabataan was created
and the Kabataang Barangay discontinued was because most, if not all, Kabataang Barangay
leaders were already over 21 years of age by the time President Aquino assumed power. 38
They were not the "youth" anymore. The Local Government Code of 1991 fixed the maximum
age limit at not more than 21 years 39 and the only exception is in the second paragraph of
Section 423 which reads:
In the case at bar, petitioner was born on June 11, 1974. On March 16, 1996, the day she
registered as voter for the May 6, 1996 SK elections, petitioner was twenty-one (21) years and
nine (9) months old. On the day of the elections, she was 21 years, 11 months and 5 days old.
When she assumed office on June 1, 1996, she was 21 years, 11 months and 20 days old and
was merely ten (10) days away from turning 22 years old. Petitioner may have qualified as a
member of the Katipunan ng Kabataan but definitely, petitioner was over the age limit for
elective SK officials set by Section 428 of the Local Government Code and Sections 3 [b] and 6
of Comelec Resolution No. 2824. She was ineligible to run as candidate for the May 6, 1996
Sangguniang Kabataan elections.
The requirement that a candidate possess the age qualification is founded on public policy and
if he lacks the age on the day of the election, he can be declared ineligible. 41 In the same vein,
if the candidate is over the maximum age limit on the day of the election, he is ineligible. The
fact that the candidate was elected will not make the age requirement directory, nor will it
validate his election. 42 The will of the people as expressed through the ballot cannot cure the
vice of ineligibility. 43
The ineligibility of petitioner does not entitle private respondent, the candidate who obtained the
highest number of votes in the May 6, 1996 elections, to be declared elected. 44 A defeated
candidate cannot be deemed elected to the office. 45 Moreover, despite his claims, 46 private
respondent has failed to prove that the electorate themselves actually knew of petitioner's
ineligibility and that they maliciously voted for her with the intention of misapplying their
franchises and throwing away their votes for the benefit of her rival candidate. 47
Neither can this Court order that pursuant to Section 435 of the Local Government Code
petitioner should be succeeded by the Sangguniang Kabataan member who obtained the next
highest number of votes in the May 6, 1996 elections. 48 Section 435 applies when a
Sangguniang Kabataan Chairman "refuses to assume office, fails to qualify,49 is convicted of a
felony, voluntarily resigns, dies, is permanently incapacitated, is removed from office, or has
been absent without leave for more than three (3) consecutive months."
The question of the age qualification is a question of eligibility. 50 Being "eligible" means being
"legally qualified; capable of being legally chosen." 51 Ineligibility, on the other hand, refers to the
lack of the qualifications prescribed in the Constitution or the statutes for holding public office. 52
Ineligibility is not one of the grounds enumerated in Section 435 for succession of the SK
Chairman.
To avoid a hiatus in the office of SK Chairman, the Court deems it necessary to order that the
vacancy be filled by the SK member chosen by the incumbent SK members of Barangay San
Lorenzo, Bangui, Ilocos Norte by simple majority from among themselves. The member chosen
shall assume the office of SK Chairman for the unexpired portion of the term, and shall
discharge the powers and duties, and enjoy the rights and privileges appurtenant to said office.
IN VIEW WHEREOF, the petition is dismissed and petitioner Lynette G. Garvida is declared
ineligible for being over the age qualification for candidacy in the May 6, 1996 elections of the
Sangguniang Kabataan, and is ordered to vacate her position as Chairman of the Sangguniang
Kabataan of Barangay San Lorenzo, Bangui, Ilocos Norte. The Sangguniang Kabataan member
voted by simple majority by and from among the incumbent Sangguniang Kabataan members of
Barangay San Lorenzo, Bangui, Ilocos Norte shall assume the office of Sangguniang Kabataan
Chairman of Barangay San Lorenzo, Bangui, Ilocos Norte for the unexpired portion of the term.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Vitug, Kapunan,
Mendoza, Francisco, Panganiban and Torres, Jr., JJ., concur.
Hermosisima, Jr., J., is on leave.
Footnotes
1 Annex "D" to Comment of Provincial Election Supervisor Noli Pipo, Rollo, pp. 57-58;
Annex "A" to Petition, Rollo, pp. 15-16.
2 Annex "3" to the Comment for the Private Respondent, Rollo, pp. 109-112.
3 The judge was then boarding in the house of petitioner (Comment for the Private Respondent,
p. 2,Rollo, p. 89).
4 Annex "F" to the Comment of Provincial Election Supervisor Noli Pipo, Rollo, pp. 61-62.
5 Annex "C" to the Petition, Rollo p. 18; Annex "G" to the Comment of Provincial Election
Supervisor Noli Pipo, Rollo, p. 63.
6 Annex "D" to the Petition, Rollo, p. 19; Annex "H" to the Comment of Provincial Election
Supervisor Noli Pipo, Rollo, p. 64.
7 Annex "I" to the Comment of Provincial Election Supervisor Noli Pipo, Rollo, p. 66.
8 Through the PT & T.
9 Annex "L" to the Petition, Rollo, pp. 71-73.
10 Comment of Private Respondent Florencio Sales, Jr., p. 14, Rollo, p. 101.
11 Comment of Provincial Election Supervisor Noli Pipo, par. 18, Rollo, p. 41.
12 Annex "R" to the Comment of Provincial Election Supervisor Noli Pipo, Rollo, p. 82.
13 Annex "S" to the Comment of Provincial Election Supervisor Noli Pipo, Rollo, p. 83.
14 Section 532 (a) of the Code (B.P. 881) was amended by R.A. 7808 which in pertinent part
reads:
Sec. 1. . . . .
The conduct of the sangguniang kabataan elections shall be under the supervision of the
Commission on Elections.
The Omnibus Election Code shall govern the elections of the sangguniang kabataan.
15 Rule 23 provides:
"Sec. 1. Ground for Denial of Certificate of Candidacy. — A petition to deny due course to or
cancel a certificate of candidacy for any elective office may be filed with the Law Department of
the Commission by any citizen of voting age or duly registered political party, organization, or
coalition of political parties on the exclusive ground that any material representation contained
therein as required by law is false.
Sec. 2. Period to File Petition. — The petition must be filed within five (5) days following the last
day for the filing of certificates of candidacy.
Sec. 3. Summary Procedure. — The petition shall be heard summarily after due notice.
Sec. 4. Delegation of Reception of Evidence. — The Commission may designate any of its
officials who are members of the Philippine Bar to hear the case and to receive evidence."
16 Section 5 [b] and [c], Rule 3, COMELEC Rules of Procedure provides:
"Sec. 5. . . . .
(b) When sitting in Divisions, two (2) Members of a Division shall constitute a quorum to transact
business. The concurrence of at least two (2) Members of a Division shall be necessary to
reach a decision, resolution, order or ruling. If this required number is not obtained the case
shall be automatically elevated to the Commission en banc for decision or resolution.
(c) Any motion to reconsider a decision, resolution, order or ruling of a Division shall be resolved
by the Commission en banc except motions on interlocutory orders of the Division which shall
be resolved by the Division which issued the order."
17 See also Section 3, Article IX [C] of the Constitution.
18 Sarmiento v. Commission On Elections, 212 SCRA 307, 131-134 [1992].
19 One copy was filed by registered mail and the other by facsimile. Third and fourth copies
were sent by registered mail to petitioner Garvida and the COMELEC officer (Annex 5-B to the
Comment of Private Respondent, Rollo, p. 116).
20 "Facsimile Transmission," The New Encyclopedia Britannica, p. 651, vol. 4, 15th ed. [1992].
21 Id.
22 "Facsimile," The New Webster's International Encyclopedia, p. 375 [1996]; "Facsimile,"
Webster's Third New International Dictionary, p. 813 [1971].
23 Black's Law Dictionary, p. 531, 5th ed. [1979].
24 Sections 1 and 4, P.D. 684.
25 Whereas clauses, Sec. 1, P.D. 684; Mercado v. Board of Elections Supervisors of Ibaan,
Batangas, 243 SCRA 422, 426 [1995].
26 Section 2, P.D. 684
27 Section 423, Chapter 8, Title I, Bk. III, R.A. 7160.
28 Sections 423, 428, Chapter 8, Title I, Bk. III, R.A. 7160.
29 Section 430, Id.
30 Section 429, Id.
31 Of things dissimilar, the rule is dissimilar.
32 Agpalo, Statutory Construction, pp. 142-143 [1990].
33 The Local Government Code speaks of the requirements for membership in the Katipunan
ng Kabataan, not the qualifications of a voter.
34 Civil Code, Article 13; National Marketing Corporation v. Tecson, 29 SCRA 70, 74; [1969].
35 Erwin v. Benton, 87 S.W. 291, 294; 120 Ky. 536 [1905].
36 Section 2, P.D. 684.
37 Feliciano v. Aquino, 102 Phil. 1159-1160 [1957].
38 Pimentel, A.Q., The Local Government Code of 1991, The Key to National Development, p.
440 [1993].
39 It is worth noting that it is only in the case of SK candidates that the Local Government Code
sets a maximum age limit. It sets a minimum age for the rest of the elective officials, e.g.,
members of the sangguniang barangay, sangguniang panglungsod or bayan, sangguniang
panlalawigan, mayor and governor (Sec. 39, Chapter I, Title II, Bk. I, Local Government Code of
1991).
40 Pimentel, supra, at 440.
41 Castaneda v. Yap, 48 O.G. 3364, 3366 [1952].
42 Sanchez v. del Rosario, 1 SCRA 1102, 1106 [1961]; Feliciano v. Aquino, Jr., 102 Phil. 1159,
1160 [1957].
43 Frivaldo v. Commission on Elections, 174 SCRA 245, 255 [1989].
44 Aquino v. Commission on Elections, 241 SCRA 400, 423, 429 [1996]; Labo, Jr. v.
Commission on elections, 211 SCRA 297, 311 [1992]; Sanchez v. del Rosario, supra, at 1105.
45 Id.
46 Comment of Private Respondent Florencio Sales, Jr., pp. 14-15, Rollo, 101-102.
47 cf . Labo, Jr. v. Commission on Elections, supra, at 311.
48 Section 435 of the Local Government Code provides:
"Sec. 435. Succession and Filling of Vacancies. — (a) In case a Sangguniang kabataan
chairman refuses to assume office, fails to qualify, is convicted of a felony, voluntarily resigns,
dies, is permanently incapacitated, is removed from office, or has been absent without leave for
more than three (3) consecutive months, the sangguniang kabataan member who obtained the
next highest number of votes in the election immediately preceding shall assume the office of
the chairman for the unexpired portion of the term, and shall discharge the powers and duties,
and enjoy the rights and privileges appurtenant to the office. In case the said member refuses to
assume the position or fails to qualify, the sangguniang kabataan member obtaining the next
highest number of votes shall assume the position of the chairman for the unexpired portion of
the term.
xxx xxx xxx"
49 "Failure to qualify" means a public officer's or employee's failure to take the oath
and/or give the bond required by law to signify his acceptance of the office and the
undertaking to execute the trust confided in him (Martin and Martin, Administrative Law,
Law of Public Officers and Election Law, p. 140 [1983]; Mechem, A. Treatise on the Law
of Public Offices and Officers, Sec. 253, p. 162; Words and Phrases, "Failure to Qualify,"
citing State v. Boyd, 48 N.W. 739, 751, 31 Neb. 682).
50 Gaerlan v. Catubig, 17 SCRA 376, 378 [1966]; Feliciano v. Aquino, Jr., supra.
51 People v. Yanza, 107 Phil. 888, 890 [1960].
52 Separate Opinion of Justice Vicente V. Mendoza in Romualdez-Marcos v. Commission on
Elections, 248 SCRA 300, 398 [1995].
Sec. 423. Creation and Election. —
a) . . . ;
b) A sangguniang kabataan official who, during his term of office, shall have passed the age of
twenty-one (21) years shall be allowed to serve the remaining portion of the term for which he
was elected.
The general rule is that an elective official of the Sangguniang Kabataan must not be more than
21 years of age on the day of his election. The only exception is when the official reaches the
age of 21 years during his incumbency. Section 423 [b] of the Code allows him to serve the
remaining portion of the term for which he was elected. According to Senator Pimentel, the
youth leader must have "been elected prior to his 21st birthday." 40 Conversely, the SK official
must not have turned 21 years old before his election. Reading Section 423 [b] together with
Section 428 of the Code, the latest date at which an SK elective official turns 21 years old is on
the day of his election. The maximum age of a youth official must therefore be exactly 21 years
on election day. Section 3 [b] in relation to Section 6 [a] of COMELEC Resolution No. 2824 is
not ultra vires insofar as it fixes the maximum age of an elective SK official on the day of his
election.
The Local Government Code of 1991 changed the Kabataang Barangay into the Katipunan ng
Kabataan. It, however, retained the age limit of the members laid down in B.P. 337 at 15 but not
more than 21 years old. 27 The affairs of the Katipunan ng Kabataan are administered by the
Sangguniang Kabataan (SK) composed of a chairman and seven (7) members who are elected
by the Katipunan ng Kabataan. 28 The chairman automatically becomes ex-officio member of
the Sangguniang Barangay. 29 A member of the SK holds office for a term of three (3) years,
unless sooner removed for cause, or becomes permanently incapacitated, dies or resigns from
office. 30
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-4043 May 26, 1952
CENON S. CERVANTES, petitioner,
vs.
THE AUDITOR GENERAL, respondent.
Cenon Cervantes in his own behalf.
Office of the Solicitor General Pompeyo Diaz and Solicitor Felix V. Makasiar for respondent.
REYES, J.:
This is a petition to review a decision of the Auditor General denying petitioner's claim for
quarters allowance as manager of the National Abaca and Other Fibers Corporation, otherwise
known as the NAFCO.
It appears that petitioner was in 1949 the manager of the NAFCO with a salary of P15,000 a
year. By a resolution of the Board of Directors of this corporation approved on January 19 of
that year, he was granted quarters allowance of not exceeding P400 a month effective the first
of that month. Submitted the Control Committee of the Government Enterprises Council for
approval, the said resolution was on August 3, 1949, disapproved by the said Committee on
strenght of the recommendation of the NAFCO auditor, concurred in by the Auditor General, (1)
that quarters allowance constituted additional compensation prohibited by the charter of the
NAFCO, which fixes the salary of the general manager thereof at the sum not to exceed
P15,000 a year, and (2) that the precarious financial condition of the corporation did not warrant
the granting of such allowance.
On March 16, 1949, the petitioner asked the Control Committee to reconsider its action and
approve his claim for allowance for January to June 15, 1949, amounting to P1,650. The claim
was again referred by the Control Committee to the auditor General for comment. The latter, in
turn referred it to the NAFCO auditor, who reaffirmed his previous recommendation and
emphasized that the fact that the corporation's finances had not improved. In view of this, the
auditor General also reiterated his previous opinion against the granting of the petitioner's claim
and so informed both the Control Committee and the petitioner. But as the petitioner insisted on
his claim the Auditor General Informed him on June 19, 1950, of his refusal to modify his
decision. Hence this petition for review.
The NAFCO was created by the Commonwealth Act No. 332, approved on June 18, 1939, with
a capital stock of P20,000,000, 51 per cent of which was to be able to be subscribed by the
National Government and the remainder to be offered to provincial, municipal, and the city
governments and to the general public. The management the corporation was vested in a board
of directors of not more than 5 members appointed by the president of the Philippines with the
consent of the Commission on Appointments. But the corporation was made subject to the
provisions of the corporation law in so far as they were compatible with the provisions of its
charter and the purposes of which it was created and was to enjoy the general powers
mentioned in the corporation law in addition to those granted in its charter. The members of the
board were to receive each a per diem of not to exceed P30 for each day of meeting actually
attended, except the chairman of the board, who was to be at the same time the general
manager of the corporation and to receive a salary not to exceed P15,000 per annum.
On October 4, 1946, Republic Act No. 51 was approved authorizing the President of the
Philippines, among other things, to effect such reforms and changes in government owned and
controlled corporations for the purpose of promoting simplicity, economy and efficiency in their
operation Pursuant to this authority, the President on October 4, 1947, promulgated Executive
Order No. 93 creating the Government Enterprises Council to be composed of the President of
the Philippines as chairman, the Secretary of Commerce and Industry as vice-chairman, the
chairman of the board of directors and managing heads of all such corporations as ex-officio
members, and such additional members as the President might appoint from time to time with
the consent of the Commission on Appointments. The council was to advise the President in the
excercise of his power of supervision and control over these corporations and to formulate and
adopt such policy and measures as might be necessary to coordinate their functions and
activities. The Executive Order also provided that the council was to have a Control Committee
composed of the Secretary of Commerce and Industry as chairman, a member to be designated
by the President from among the members of the council as vice-chairman and the secretary as
ex-officio member, and with the power, among others —
(1) To supervise, for and under the direction of the President, all the corporations owned or
controlled by the Government for the purpose of insuring efficiency and economy in their
operations;
(2) To pass upon the program of activities and the yearly budget of expenditures approved by
the respective Boards of Directors of the said corporations; and
(3) To carry out the policies and measures formulated by the Government Enterprises Council
with the approval of the President. (Sec. 3, Executive Order No. 93.)
With its controlling stock owned by the Government and the power of appointing its directors
vested in the President of the Philippines, there can be no question that the NAFCO is
Government controlled corporation subject to the provisions of Republic Act No. 51 and the
executive order (No. 93) promulgated in accordance therewith. Consequently, it was also
subject to the powers of the Control Committee created in said executive order, among which is
the power of supervision for the purpose of insuring efficiency and economy in the operations of
the corporation and also the power to pass upon the program of activities and the yearly budget
of expenditures approved by the board of directors. It can hardly be questioned that under these
powers the Control Committee had the right to pass upon, and consequently to approve or
disapprove, the resolution of the NAFCO board of directors granting quarters allowance to the
petitioners as such allowance necessarily constitute an item of expenditure in the corporation's
budget. That the Control Committee had good grounds for disapproving the resolution is also
clear, for, as pointed out by the Auditor General and the NAFCO auditor, the granting of the
allowance amounted to an illegal increase of petitioner's salary beyond the limit fixed in the
corporate charter and was furthermore not justified by the precarious financial condition of the
corporation.
It is argued, however, that Executive Order No. 93 is null and void, not only because it is based
on a law that is unconstitutional as an illegal delegation of legislature power to executive, but
also because it was promulgated beyond the period of one year limited in said law.
The second ground ignores the rule that in the computation of the time for doing an act, the first
day is excluded and the last day included (Section 13 Rev. Ad. Code.) As the act was approved
on October 4, 1946, and the President was given a period of one year within which to
promulgate his executive order and that the order was in fact promulgated on October 4, 1947,
it is obvious that under the above rule the said executive order was promulgated within the
period given.
As to the first ground, the rule is that so long as the Legislature "lays down a policy and a
standard is established by the statute" there is no undue delegation. (11 Am. Jur. 957). Republic
Act No. 51 in authorizing the President of the Philippines, among others, to make reforms and
changes in government-controlled corporations, lays down a standard and policy that the
purpose shall be to meet the exigencies attendant upon the establishment of the free and
independent government of the Philippines and to promote simplicity, economy and efficiency in
their operations. The standard was set and the policy fixed. The President had to carry the
mandate. This he did by promulgating the executive order in question which, tested by the rule
above cited, does not constitute an undue delegation of legislative power.
It is also contended that the quarters allowance is not compensation and so the granting of it to
the petitioner by the NAFCO board of directors does not contravene the provisions of the
NAFCO charter that the salary of the chairman of said board who is also to be general manager
shall not exceed P15,000 per anum. But regardless of whether quarters allowance should be
considered as compensation or not, the resolution of the board of the directors authorizing
payment thereof to the petitioner cannot be given effect since it was disapproved by the Control
Committee in the exercise of powers granted to it by Executive Order No. 93. And in any event,
petitioner's contention that quarters allowance is not compensation, a proposition on which
American authorities appear divided, cannot be insisted on behalf of officers and employees
working for the Government of the Philippines and its Instrumentalities, including, naturally,
government-controlled corporations. This is so because Executive Order No. 332 of 1941, which
prohibits the payment of additional compensation to those working for the Government and its
Instrumentalities, including government-controlled corporations, was in 1945 amended by
Executive Order No. 77 by expressly exempting from the prohibition the payment of quarters
allowance "in favor of local government officials and employees entitled to this under existing
law." The amendment is a clear indication that quarters allowance was meant to be included in
the term "additional compensation", for otherwise the amendment would not have expressly
excepted it from the prohibition. This being so, we hold that, for the purpose of the executive
order just mentioned, quarters allowance is considered additional compensation and, therefore,
prohibited.
In view of the foregoing, the petition for review is dismissed, with costs.
Paras, C.J., Feria, Pablo, Bengzon, Tuason, Montemayor and Bautista Angelo, JJ., concur.