PABLO C. SANIDAD AND PABLITO V. SANIDAD, PETITIONERS, VS. COMMISSION ON ELECTIONS, RESPONDENT.

DISSENTING OPINION

TEEHANKEE, J.:

I.        On
the merits:  I dissent from the
majority’s dismissal of the petitions for lack of merit and vote to grant the
petitions for the following reasons and considerations:

1.       It is undisputed that
neither the 1935 Constitution nor the 1973 Constitution grants to the incumbent
President the constituent power to propose and approve amendments to the
Constitution to be submitted to the people for ratification in a plebiscite.

The 1935 Constitution expressly vests the constituent power in
Congress, by a three-fourths vote of all its members, to propose amendments or
call a constitutional convention for the purpose.^[1]

The 1973 Constitution expressly vests the constituent power in
the regular National Assembly to propose amendments (by a three-fourths vote of
all its members) or “call a constitutional convention” (by a
two-thirds vote of all its members) or “submit the question of calling
such convention to the electorate in an election” (by a majority vote of
all its members).^[2]

The transitory provisions of the 1973 Constitution expressly vest
the constituent power during the period of transition in the interim National
Assembly “upon special call by the interim Prime Minister (the
incumbent President^[3])
. . . by a majority vote of all its mem­bers (to) propose amendments”.^[4]

Since the Constitution provides for the organization of the
essential departments of government, defines and delimits the powers of each
and prescribes the manner of the exercise of such powers, and the constituent
power has not been granted to but has been withheld from the President or Prime
Minister, it follows that the Pre­sident’s questioned decrees^[5]
proposing and submitting constitutional amendments directly to the people
(without the intervention of the interim National Assembly in whom the power is
expressly vested) are devoid of constitutional and legal basis.

2.       The doctrine in the
leading case of Tolentino vs. Comelec is controlling in the case at bar.  In therein declaring null and void the acts
of the 1971 Constitutional Convention and of the Comelec
in calling a plebiscite with the general elections scheduled for Novem­ber 8,
1971 for the purpose of submitting for the people’s ratification an advance
amendment reducing the voting age from 21 years to 18 years, and issuing writs
of prohibition and injunction against the hold­ing of the plebiscite, this
Court speaking through Mr. Justice Barredo ruled that

— The Constitutional provisions on amendments^[6]
“dealing with the procedure or manner of amending the fundamental law are
binding upon the Convention and the other departments of the government, (and)
are no less binding upon the people”;^[7]

— “As long as any amendment is formulated and submitted
under the aegis of the present Charter, any proposal for such amendment which
is not in conformity with the letter, spirit and intent of the Charter for
effecting amendments, cannot receive the sanction of this Court”;^[8]

— “The real issue here cannot be whether or not the
amending process delineated by the present Constitution may be disregarded in
favor of allowing the sovereign people to express their decision on the
proposed amendments, if only because it is evident that the very idea of
departing from the fundamental law is anachron­istic in the realm of
constitutionalism and repugnant to the essence of the rule of law”;^[9]
and

— Accordingly barred the plebiscite as improper and premature,
since “the provisional nature of the proposed amendment and the manner of
its submission to the people for ratification or rejection” did not
“conform with the mandate of the people themselves in such regard, as
expressed in the Constitution itself”,^[10]
i.e. the mandatory requirements of the
amending process as set forth in the Article on Amendments.

3.       Applying the above
rulings of Tolentino to the case at bar, mutatis
mutandis, it is clear that where the proposed amendments are violative of the Constitutional mandate on the amending
process not merely for being a “partial amendment” of a “temporary
or provisional character” (as in Tolentino)
but more so for not being proposed and approved by the department vested
by the Constitution with the constituent power to do so, and hence
transgressing the substantive provision that it is only the interim National
Assembly, upon special call of the interim Prime Minister, by a majority vote
of all its members that may propose the amendments, the Court must declare the
amendment proposals null and void.

4.       This is so because
the Constitution is a “superior paramount law, unchangeable by ordinary
means”^[11]
but only by the particular mode and manner prescribed therein by the
people.  As stressed by Cooley, “by
the Constitution which they establish, (the people) not only tie up the hands
of their official agencies but their own hands as well; and neither the
officers of the State, nor the whole people as an aggregate body, are at
liberty to take action in opposition to this fundamental law”.^[12]

The vesting of the
constituent power to propose amendments in the legislative body (the regular
National Assembly or the interim National Assembly during the transition
period) or in a constitutional convention called for the purpose is in
accordance with universal practice. 
“From the very necessity of the case” Cooley points out “amendments
to an existing constitution, or entire revisions of it, must be prepared and
matured by some body of representatives chosen for the purpose.  It is obviously impossible for the whole
people to meet, prepare, and discuss the proposed alterations, and there seems
to be no feasible mode by which an expression of their will can be obtained,
except by asking it upon the single point of assent or disapproval.” This
body of representatives vested with the constitutent
power “sub­mits the result of their deliberations” and “puts in
proper form the questions of amendment upon which the people are to pass”
– for ratification or rejection.^[13]

5.       The Court in Tolentino thus rejected the argument “that the
end sought to be achieved is to be desired” and in denying reconsideration,
in paraphrase of the late Claro M. Recto, declared
that “let those who would put aside, invoking grounds at best
controversial, any mandate of the fundamental law purportedly in order to
attain some laudable objective bear in mind that someday somehow others with
purportedly more laudable objectives may take advantage of the precedent and
continue the destruction of the Constitution, making those who laid down the
precedent of justifying deviations from the require­ments of the Constitution
the victims of their own folly.”

This same apprehension
was echoed by now retired Justice Calixto O. Zaldivar in his dissenting opinion in the Ratification
cases^[14] that “We will be opening the gates for
a similar disregard of the Constitution in the future.  What I mean is that if this Court now
declares that a new Constitution is now in force because the members of the
citizens assemblies had approved said new Constitution, although that approval
was not in accordance with the procedure and the require­ments prescribed in
the 1935 Constitution, it can happen again in some future time that some
amendments to the Constitution may be adopted, even in a manner contrary to the
existing Constitution and the law, and then said proposed amendments are
submitted to the people in any manner and what will matter is that a basis is
claimed that there was approval by the people. 
There will not be stability in our constitutional system, and
necessarily no stability in our government.”

6.       It is not legally
tenable for the majority, without overruling the controlling precedent of Tolentino (and without mustering the required
majority vote to so overrule) to accept the proposed; amendments as valid
notwithstanding their being “not in conformity with the letter, spirit and
intent of the provision of the Charter for effecting amendments” on the
reasoning that “If the President has been legitimately discharging the
legislative functions of the interim Assembly, there is no reason why he cannot
validly discharge the function of that Assembly to propose amendments to the
Constitution, which is but adjunct, although peculiar, to its gross legislative
functions.”^[15]

In the earlier leading case of Gonzales vs. Comelec^[16],
this Court speaking through now retired Chief Justice Roberto Con­cepcion, pointed out that “Indeed, the power to
amend the Constitution or to propose amendments thereto is not included in the
general grant of legislative powers to Congress”^[17]
or to the National Assembly.^[18]
Were it not for the express grant in the Transitory Provisions of the
constituent power to the interim National Assembly, the interim Na­tional
Assembly could not claim the power under the general grant of legislative power
during the transition period.

The majority’s ruling in the Referendum cases^[19]
that the Transitory Provisions in section 3 (2) recognized the existence of the
authority to legislate in favor of the incumbent President during the period of
martial law manifestly cannot be stretched to encompass the constituent power
as expressly vested in the interim National Assembly in derogation of the
allotment of powers defined in the Constitution.

Paraphrasing Cooley on the non-delegation of legislative power as
one of the settled maxims of constitutional law,^[20]
the constituent power has been lodged by the sovereign power of the people with
the interim National Assembly during the transition period and there it must
remain as the sole constitutional agency until the Constitution itself is
changed.

As was aptly stated by Justice Jose P. Laurel in the 1936
landmark case of Angara vs. Electoral
Commission^[21],
“(T)he Constitution sets forth in no uncertain language the restrictions
and limitations upon governmental powers and agencies.  If these restrictions and limitations are
transcended it would be inconceivable if the Constitution had not provided for
a mechanism by which to direct the course of government along constitutional
channels, for then the distribution of powers would be mere verbiage, the bill
of rights mere expressions of sentiment, and the principles of good government
mere political apothegms.  Certainly, the
limitations and restrictions embodied in our Constitution are real as they
should be in any living Constitution”.

7.       Neither is the
justification of “constitutional impasse” tenable.  The sentiment of the people against the
convening of the interim National Assembly and to have no elections for
“at least seven (7) years” concededly could not amend the
Constitution insofar as the interim National Assembly is concerned (since it admittedly
came into existence “immediately” upon the proclamation of
ratification of the 1973 Constitution), much less remove the constituent power
from said interim National Assembly.

As stressed in the
writer’s separate opinion in the Referendum cases^[22], “(W)hile 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 the interim National
Assembly for at least seven years, 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”.

While the people
reportedly expressed their mandate against the convening of the interim
National Assembly to discharge its legislative tasks during the period
of transition under martial law, they certainly had no opportunity and did not
express themselves against convening the interim National Assembly to discharge
the constituent power to propose amendments likewise vested in it by the
people’s official mandate in the Constitution.

In point of fact, when
the holding of the October 16, 1976 referendum was first announced, the
newspapers reported that among the seven questions proposed by the sanggunian and barangay national
executive committees for the referendum was the convening of the interim
National Assembly.^[23]

It was further reported
that the proposals which were termed tentative “will be discussed and
studied by (the President), the members of the cabinet, and the security
council” and that the barangays felt,
notwithstanding the previous referenda on the convening of the interim National
Assembly that “it is time to again ask the people’s opinion of this
matter.”^[24]

8.       If proposals for
constitutional amendments are now deemed necessary to be discussed and adopted
for submittal to the people, strict adherence with the mandatory requirements
of the amending process as provided in the Constitution must be complied
with.  This means, under the teaching of Tolentino that the proposed amendments must validly
come from the constitutional agency vested with the constituent power to do so,
namely, the interim National Assembly and not from the executive power as
vested in the Prime Minister (the incumbent Pre­sident) with the assistance of
the Cabinet^[25]
from whom such power has been withheld.

It will not do to contend
that these proposals represent the voice of the people for as was aptly stated
by Cooley “The voice of the people, acting in their sovereign capacity,
can be of legal force only when expressed at the times and under the conditions
which they them­selves have prescribed and pointed out by the Constitution, x x x.”^[26]

The same argument was put
forward and rejected by this Court in Tolentino
which rejected the contention that the “Convention being a legislative body
of the highest order (and directly elected by the people to speak their voice)
is sovereign, and as such, its acts impugned by petitioner are beyond the
control of Congress and the Courts” and ruled that the constitutional
article on the amending process “is nothing more than a part of the
Constitution thus ordained by the people. 
Hence, in construing said section, We must read it as if the people had
said, ‘This Constitution may be amended, but it is our will that the amend­ment
must be proposed and submitted to Us for ratification only in the manner herein
provided'”.^[27]

This Court therein
stressed that “This must be so, because it is plain to Us that the framers
of the Constitution took care that the process of amending the same should not
be undertaken with the same ease and facility in changing an ordinary
legislation.  Constitution making is the
most valued power, second to none, of the people in a constitutional democracy such as the one our
founding fathers have chosen for this nation, and which we of the succeeding
generations generally cherish.  And because
the Constitution affects the lives, fortunes, future and every other
conceivable aspect of the lives of all the people within the country and those
subject to its sovereignty, every degree of care is taken in preparing and
drafting it.  A constitution worthy of
the people for which it is intended must not be prepared in haste
without adequate deliberation and study. 
It is obvious that correspondingly, any amendment of the Constitution is
of no less importance than the whole Constitution itself, and perforce must be
conceived and prepared with as much care and de­liberation;” and that
“written constitutions are supposed to be designed so as to last for some
time, if not for ages, or for, at least, as long as they can be adopted to the
needs and exigencies of the people, hence, they must be insulated against
precipitate and hasty actions motivated by more or less passing political moods or fancies.  Thus, as a rule, the original constitutions
carry with them limitations and conditions, more or less stringent, made so by
the people themselves, in regard to the process of their amendment.”^[28]

9.       The convening of the
interim National Assembly to exercise the constituent power to propose
amendments is the only way to fulfill the express mandate of the Constitution.

As Mr. Justice Fernando emphasized for this Court in Mutuc vs. Comelec^[29]
in the setting aside of a Comelec resolution banning
the use of political taped jingles by candidates for Constitutional Convention
delegates in the special 1970 elections, “the concept of the Constitution
as the fundamental law, setting forth the criterion for the validity of any
public act whether proceeding from the highest official or the lowest
functionary, is a postulate of our system of government.  That is to manifest fealty to the rule of
law, with priority accorded to that which occupies the topmost rung in the
legal hierarchy.  The three departments
of government in the discharge of the functions with which it is entrusted have
no choice but to yield obedience to its commands.  Whatever limits it imposes must be
observed.  Congress in the enactment of
statutes must ever be on guard lest the restrictions on its authority, whether
substantive or formal, be transcended. 
The Presidency in the execution of the laws cannot ignore or disregard
what it ordains.  In its task of applying
the law to the facts as found in deciding cases, the judiciary is called upon
to maintain inviolate what is decreed by the funda­mental law”.

This is but to give
meaning to the plain and clear mandate of section 15 of the Transitory
Provisions (which allows of no other interpretation) that during the stage of
transition the interim National Assembly alone exercises the constituent power
to propose amendments, upon special call therefor.  This is reinforced by the fact that the cited
section does not grant to the interim National Assembly the same power granted
to the regular National Assembly of calling a constitutional convention, thus
expressing the will of the Conven­tion (and presumably of the people upon
ratification) that if ever the need to propose amendments arose during
the limited period of transition, the interim National Assembly alone would
discharge the task and no constitutional convention could be called for the
purpose.

As to the alleged costs
involved in convening the interim National Assembly to propose amendments,
among them its own abolition, (P24 million annually in salaries alone for its
400 members at P60,000.00 per annum per member, assuming that its deliberations
could last for one year), suffice it to recall this Court’s pronouncement in Tolentino (in rejecting a similar argument on the
costs of holding a plebiscite separately from the general elections for
elective officials) that “it is a matter of public knowledge that bigger
amounts have been spent or thrown to waste for many lesser objectives.  xxx xxx xxx Surely, the amount of seventeen million pesos or even
more is not too much a price to pay for fealty and lo­yalty to the Constitution
xxx xxx xxx“^[30] and that “while the financial costs of
a separate plebiscite may be high, it can never be as much as the dangers
involved in disregarding clear mandate of the Constitution, no matter how
laudable the objective” and “no consideration of financial costs
shall deter Us from adherence to the requirements of the Constitution”.^[31]

10.     The imposition of
martial law (and “the problems of rebellion, subversion, secession,
recession, inflation and economic crisis – a crisis greater than war”)^[32]
cited by the majority opinion as justifying the concentration of powers in the
President, and the recognition now of his exercising the constituent power to
propose amendments to the Fundamental Law “as agent for and in behalf of
the people”^[33]
have no constitutional basis.

In the post-war Emergency
Powers Cases[33-a], former Chief Justice Ricardo Paras
reaffirmed for the Court the principle that “emergency in itself cannot
and should not create power.  In our
democracy the hope and survival of the nation lie in the wisdom and unselfish
patriotism of all officials and in their faithful adherence to the
Constitution”.

The martial law clause of
the 1973 Constitution found in Article IX, section 12, as stressed by the
writer in his separate opinion in the Referendum Cases,^[34] “is a verbatim reproduction of Article
VII, section 10 (2) of the 1935 Constitution and provides for the imposition of
martial law only ‘in case of invasion, insurrection or rebellion, or imminent
danger thereof, when the public safety requires it’ and hence the use of the
‘legislative power’ or more accurately ‘military power’ under martial rule is
limited to such necessary measures as will safeguard the Republic and suppress
the rebellion (or invasion)”.^[35]

11.     Article XVII, section
3 (2) of the 1973 Constitution which has been held by the majority in the
Referendum Cases to be the recognition or warrant for the exercise of
legislative power by the President during the period of martial law is but a
transitory provision.  Together with the
martial law clause, they constitute but two provisions which are not to be
considered in isolation from the Constitution but as mere integral parts
thereof which must be harmonized consistently with the entire Constitution.

As Cooley restated the
rule:  “effect is to be given, if
possible, to the whole instrument, and to every section and clause.  If different portions seem to conflict, the
courts must harmonize them, if practicable, and must lean in favor of a
construction which will render every word operative, rather than one which may
make some words idle and nugatory.

“This rule is applicable with special force to written
constitutions, in which the people will be presumed to have expressed
themselves in careful and measured terms, corresponding with the immense
importance of the powers delegated, leaving as little as possible to
implication.  It is scarcely conceivable
that a case can arise where a
court would be justified in declaring any portion of a written constitution
nugatory because of ambiguity.  One part
may qualify another so as to restrict its operation, or apply it otherwise than the natural construction would
require if it stood by itself; but one part is not to be allowed to defeat
another, if by any reasonable construction the two can be made to stand
together.”^[36]

The transcendental constituent power to propose and approve
amendments to the Constitution as well as set up the machinery and prescribe
the procedure for the ratification of his proposals has been withheld from the
President (Prime Minister) as sole repository of the Executive Power,
presumably in view of the immense powers al­ready vested in him by the
Constitution but just as importantly, because by the very nature of the
constituent power, such amendments proposals have to be prepared, deliberated
and matured by a deliberative assembly of representatives such as the interim
National Assembly and hence may
not be antithetically entrusted to one man.

Former Chief Justice Roberto Concepcion
had observed before the election of the 1971 Constitutional Convention that the
records of past plebiscites show that the constitutional agency vested with the
exercise of the constituent power (Congress or the Constitutional Convention)
really determined the amendments to the Constitution since the proposals were
invariably ratified by the people,^[37]
thus:  “although the people have the
reserved power to ratify or reject the action taken by the Convention, such
power is not, in view of the circumstances attending its exercise, as effective
as one might otherwise think; that, despite the requisite ratification by the
people, the actual contents of our
fundamental law will really be determined by the Convention; that, accordingly
the people should exercise the greatest possible degree of circumspection in
the election of dele­gates  thereto xxx xxx xxx“.^[38]

12.     Martial law concededly
does not abrogate the Constitution nor obliterate its constitutional boundaries
and allocation of powers among the
Executive, Legislative and Judicial Departments.^[39]

It has thus been aptly
observed that “Martial law is an emergency regime, authorized by and
subject to the Constitution.  Its basic
premise is to preserve and to maintain the Republic against the dangers that
threaten it.  Such premise imposes
constraints and limitations.  For the
martial law regime fulfills the constitutional purpose only if, by reason of
martial law measures, the Republic is preserved.  If by reason of such measures the Republic is
so transformed that it is changed in its nature and becomes a State other than
republican, then martial law is a failure; worse, martial law would have become
the enemy of the Republic rather than its defender and preserver.”^[40]

II.       On the question of
the Court’s jurisdiction to pass upon the constitutionality of the questioned
presidential decrees:  let it be
underscored that the Court has long set at rest the question.

The trail was blazed for
the Court since the benchmark case of Angara vs. Electoral Commission when
Justice Jose P. Laurel echoed U.S. Chief Justice Marshall’s “climactic
phrase” that “we must never forget that it is a Constitution we are
expounding” and declared the Court’s “solemn and sacred”
constitutional obligation of judicial review and laid down the doctrine that the
Philippine Constitution as “a definition of the powers of government”
placed upon the judiciary the great burden of “determining the nature,
scope and extent of such powers” and stressed that “when the
judiciary mediates to allocate constitutional boundaries, it does not assert
any superiority over the other departments … but only asserts the solemn and
sacred obligation entrusted to it by the Constitution to determine conflicting
claims of authority under the Constitution and to establish for the parties in
an actual controversy the rights which the instrument secures and guarantees to
them.

At the same time, the
Court likewise adhered to the constitutional tenet that political questions,
i.e. questions which are intended by the Constitution and relevant laws to be conclusively
determined by the “political“, i.e. elective, branches
of government (namely, the Executive and the Legislative) are outside the
Court’s jurisdiction.^[41]

Thus, in Gonzales,^[42] (by a unanimous Court) and in Tolentino^[43] (by the required constitutional majority),
the Court has since consistently ruled that when proposing and approving
amendments to the Constitution, the members of Congress, acting as a
constituent assembly or the members of the Constitutional Convention elected
directly for the purpose “do not have the final say on whether or not
their acts are within or beyond constitutional limits.  Otherwise, they could brush aside and set the
same at naught, contrary to the basic tenet that ours is a government of laws,
not of men, and to the rigid nature of our Constitution.  Such rigidity is stressed by the fact that,
the Constitution expressly confers upon the Supreme Court, the power to declare
a treaty unconstitutional, despite the eminently political character of
treaty-making power”.^[44]

As amplified by former
Chief Justice Concepcion in Javellana
vs. Executive Secretary^[45] (by a majority vote), “when the grant
of power is qualified, conditional or subject to limitations, the issue on
whether or not the prescribed qualifications or conditions have been met, or
the limitations respected, is justiciable or
non-political, the crux of the problem being one of legality or validity of the
contested act, not its wisdom. 
Otherwise, said qualifications, conditions and limitations –
particularly those prescribed or imposed by the Constitution – would be set at
naught”.

The fact that the
proposed amendments are to be submitted to the people for ratification by no
means makes the question political and non-justiciable,
since as stressed even in Javellana, the issue
of validity of the President’s proclamation of ratification of the 1973
Constitution presented a justiciable and
non-political question.

Stated otherwise, the
question of whether the Legislative acting as a constituent assembly or the
Constitutional Convention called for the purpose, in proposing amendments to
the people for ratification followed the constitutional procedure and requirements
on the amending process is perforce a justiciable
question and does not raise a political question of policy or wisdom of the
proposed amendments, which if properly submitted, are reserved for the people’s
decision.

The substantive question
presented in the case at bar of whether the President may legally exercise the
constituent power vested in the interim National Assembly (which has not been
granted to his office) and propose constitutional amendments is preeminently a justiciable issue.

Justice Laurel in Angara had duly enjoined that “in times of
social disquietude or political excitement, the great landmarks of the
Constitution are apt to be forgotten or marred, if not entirely obli­terated.  In cases of conflict, the judicial department
is the only constitutional organ which can be called upon to determine the
proper allocation of powers between the several departments and among the
integral or constituent units thereof”.

To follow the easy way
out by disclaiming jurisdiction over the issue as a political question would be
judicial abdication.

III.      On the question of
whether there is a sufficient and proper submittal of the proposed amendments
to the people:  Prescinding
from the writer’s view of the nullity of the questioned decrees for lack of
authority on the President’s part to exercise the constituent power, I hold
that the doctrine of fair and proper submission first enunciated by a simple
majority of six Justices in Gonzales and subsequently officially adopted
by the required constitutional two-thirds majority of the Court in Tolentino is controlling in the case at bar.

1.       There cannot be said
to be fair and proper submission of the proposed amendments.  As ruled by this Court in Tolentino,
where “the proposed amendment in question is expressly saddled with
reservations which naturally impair, in great measure, its very essence as a
proposed constitutional amendment” and where “the way the proposal is
worded, read together with the reservations tacked to it by the Convention thru
Section 3 of the questioned resolution, it is too much of a speculation to
assume what exactly the amendment would really amount to in the end.  All in all, as already pointed out in our
discussion of movants‘ first ground, if this kind of
amendment is allowed, the Philippines
will appear before the world to be in the absurd position of being the only
country with a constitution containing a provision so ephemeral no one knows
until when it will be actually in force”, there can be no proper
submission.

In Tolentino
a solitary amendment reducing the voting age to 18 years was struck down by
this Court which ruled that “in order that a plebiscite for the
ratification of an amendment to the Constitution may be validly held, it must
provide the voter not only sufficient time but ample basis for an intelligent
appraisal of the nature of the amendment per se as well as its relation
to the other parts of the Constitution with which it has to form a harmonious
whole, “and that there was no proper submission “wherein the people
are in the dark as to frame of reference they can base their judgment on”.

2.       The now Chief Justice
and Mr. Justice Makasiar with two other members^[46]
graphically pointed out in their joint separate opinion that the solitary
question “would seem to be uncomplicated and innocuous.  But it is one of life’s verities that things
which appear to be simple may turn out not to be so simple after all”.^[47]

They further expressed
“essential agreement” with Mr. Justice Conrado
V. Sanchez’ separate opinion in Gonzales “on the minimum
requirements that must be met in order that there can be a proper submission
to the people of a proposed constitutional amendment” which reads thus:

“xxx xxx xxx
we take the view that the words ‘submitted to the people for their
ratification’, if construed in the light of the nature of the Constitution ?
a fundamental charter that is
legislation direct from the people, an expression of their sovereign will – is
that it can only be amended by the people expressing themselves according to
the procedure ordained by the Constitution. 
Therefore, amendments must be fairly laid before the people for their
blessing or spurning.  The people are not
to be mere rubber stamps.  They are not
to vote blindly.  They must be afforded
ample opportunity to mull over the original provisions, compare them with the
proposed amendments, and try to reach a conclusion as the dictates of their
conscience suggest, free from the incubus of extraneous or possibly insidious
influences.  We believe the word
‘submitted’ can only mean that the government, within its maximum capabilities,
should strain every effort to inform every citizen of the provisions to be
amended, and the proposed amendments and the meaning, nature and effects there­of.  By this, we are not to be understood as
saying that, if one citizen or 100 citizens or 1,000 citi­zens cannot be
reached, then there is no submission within the meaning of the word as intended
by the framers of the Constitution.  What
the Constitution in effect directs is that the government, in submitting an
amendment for ratification, should put every instrumentality or agency within
its structural framework to enlighten the people, educate them with respect to
their act of ratification or re­jection. 
For, as we have earlier stated, one thing is submission and
another is ratification.  There
must be fair submission, intelligent consent or rejection.  If with all these safeguards the people still
approve the amendment no matter how preju­dicial it is to them, then so be
it.  For the people decree their own
fate.”^[48]

Justice Sanchez therein
ended the passage with an apt citation that ”xxx xxx xxx
The great men who builded the structure of our state
in this respect had the mental vision of a good Constitution voiced by Judge
Cooley, who has said ‘A good Constitution should be beyond the reach of
temporary excitement and popular caprice or passion.  It is needed for stability and steadiness; it
must yield to the thought of the people; not to the whim of the people, or the
thought evolved in excitement or hot blood, but the sober second thought, which
alone, if the government is to be safe, can be allowed efficacy.  xxx xxx xxx Changes in government are to be feared unless the
benefit is certain.  As Montaign says:  ‘All
great mutations shake and disorder a state. 
Good does not necessarily succeed evil; another evil may succeed and a
worse‘”.^[49]

Justice Sanchez thus
stated the rule that has been adopted by the Court in Tolentino
that there is no proper submission “if the people are not sufficiently
informed of the amendments to be voted upon, to conscientiously
deliberate thereon, to express their will in a genuine manner,
xxx xxx xxx.”^[50]

3.       From the complex and
complicated proposed amendments set forth in the challenged decree and the
plethora of confused and confusing clarifications reported in the daily
newspapers, it is manifest that there is no proper submission of the propos ed
amendments.

Nine (9) proposed constitutional amendments were officially
proposed and made known as per Presidential Decree No. 1033 dated September 22,
1976 for submittal at the “referendum-plebiscite” called for this
coming Saturday, October 16, 1976 wherein the 15-year and under 18-year-olds
are enjoined to vote^[51]
notwithstanding their lack of qualification under Article VI of the
Constitution.

Former Senator Arturo Tolentino, an
acknowledged parliamentarian of the highest order, was reported by the
newspapers last October 3 to have observed that “there is no urgency in
approving the proposed amendments to the Constitution and suggested that the
question regarding charter changes be modified instead of asking the people to
vote on hurriedly prepared amendments”. 
He further pointed out that “apart from lacking the parliamentary
style in the body of the Constitution, they do not indicate what particular
provisions are being repealed or amended”.^[52]

As of this writing, October 11, 1976, the papers today reported
his seven-page analysis questioning among others the proposed granting of dual
legislative powers to both the President and the Batasang
Pambansa and remarking that “This dual
legislative authority can give rise to confusion and serious constitutional
questions”.^[53]

Aside from the inadequacy of the limited time given for the
people’s consideration of the proposed amendments, there can be no proper
submission because the proposed amendments are not in proper form and violate the cardinal rule of
amendments of written Con­stitutions that the specific provisions of the
Constitution being repealed or amended as well as how the specific provisions
as amended would read, should be clearly stated in careful and measured
terms.  There can be no proper submission
because the vagueness and ambiguity of the proposals do not sufficiently inform
the people of the amendments for conscientious deliberation and intelligent
consent or rejection.

4.       While the press and
the Solicitor General at the hearing have stated that the principal thrust of
the proposals is to substitute the interim National Assembly with an interim Batasang Pambansa, a serious
study thereof in detail would lead to the conclusion that the whole context of
the 1973 Constitution proper would be affected and grave amendments and
modifications thereof would apparently be made, among others, as follows:

Under Amendment No. 1, the qualification age of members of the
interim Batasang Pambansa
is reduced to 18 years;

Under Amendment No. 2, the treaty-concurring power of the
Legislature is withheld from the interim Batasang Pambansa;

Under Amendment No. 3, notwithstanding the convening of the interim
Batasang Pambansa within 30
days from the election and selection of the members (for which there is no
fixed date) the incumbent President apparently becomes a regular President and
Prime Minister (not ad interim);

Under Amendment No. 4, the disqualifications imposed on members of
the Cabinet in the Constitution such as the prohibition against the holding of
more than one office in the government including government-owned or
-controlled corporations would appear to be eli­minated, if not prescribed by
the President;

Under Amendment No. 5, the President shall continue to exercise
legislative powers until martial law is lifted;

Under Amendment No. 6, there is a duality of legislative authority
given the President and the interim Batasang Pambansa as well as the regular National Assembly, as
pointed out by Senator Tolentino, with the President
continuing to exercise legislative powers in case of “grave emergency or a
threat or imminence thereof” (without definition of terms) or when said
Assemblies “fail or are unable to act adequately on any matter for any
reason that in his judgment requires immediate action”, thus radically
affecting provisions of the Constitution governing the said departments;

Under Amendment No. 7, the barangays and Sanggunians would apparently be constitutionalized,
although their functions, powers and composition may be altered by law.  Referendums (which are not authorized in the
present 1973 Constitution) would also be constitutionalized,
giving rise to the possibility fraught with grave consequences, as acknowledged
at the hearing, that amendments to the Constitution may thereafter be effected
by referendum, rather than by the rigid and strict amending process provided
presently in Article XVI of the Constitution;

Under Amendment No. 8, there is a general state­ment in general
that the unspecified provisions of the Constitution “not inconsistent with
any of these amendments” shall continue in full force and effect; and

Under Amendment No. 9, the incumbent President is authorized to
proclaim the ratification of the amendments by the majority of votes cast.

It has likewise been
stressed by the officials concerned that the proposed amendments come in a
package and may not be voted upon separately but on an “all or
nothing” basis.

5.       Whether the people
can normally express their will in a genuine manner and with due circumspection
on the proposed amendments amidst the constraints of martial law is yet another
question.  That a period of free debate
and discussion has to be declared of itself shows the limitations on free
debate and discussion.  The facilities
for free debate and discussion over the mass media, print and otherwise are
wanting.  The President himself is
reported to have observed the timidity of the media under martial law and to
have directed the press to air the views of the opposition.^[54]

Indeed, the voice of the studentry as reflected in the editorial of the Philippine
Collegian issue of September 23, 1976 comes as a welcome and refreshing model
of conscientious deliberation, as our youth analyzes the issues “which
will affect generations yet to come” and urges the people to “mull
over the pros and cons very carefully”, as follows:

“THE
REFERENDUM ISSUES

“On October 16, the people may be asked to decide on two
important national issues – the creation of a new legislative body and the
lifting of martial law.

“On the first issue, it is almost sure that the interim
National Assembly will not be convened, primarily because of its
membership.  Majority of the members of
the defunct Congress, who are mandated by the Constitution to become members of
the interim National Assembly, have gained so widespread a notoriety that the
mere mention of Congress conjures the image of a den of thieves who are out to
fool the people most of the time.  Among
the three branches of government, it was the most discredited.  In fact, upon the declaration of martial law,
some people were heard to mutter that a ‘regime that has finally put an end to
such congressional shenanigans could not be all that bad’.

“A substitute legislative body is contemplated to help the
President in promulgating laws, and perhaps minimize the issuance of
ill-drafted decrees which necessitate constant amendments.  But care should be taken that this new
legislative body would not become a mere rubber stamp akin to those of other totalitarian
countries.  It should be given real
powers, otherwise we will just have another nebulous creation having the form
but lacking the substance.  Already the
President has expressed the desire that among the powers he would like to have
with regard to the proposed legislative body is that of abolishing it in case
‘there is a need to do so’.  As to what would occasion such a need, only the
President himself can determine.  This
would afford the Chief Executive almost total power over the legislature, for
he could always offer the members thereof a carrot and a stick.

“On the matter of lifting martial law, the people have
expressed ambivalent attitudes.  Some of
them, remembering the turmoil that prevailed before the declaration of martial law,
have expressed the fear that its lifting might precipitate the revival of the
abuses of the past, and provide an occasion for evil elements to resurface with
their usual tricks.  Others say that it is about time martial law
was lifted, since the peace and order
situation has already stabilized and the economy seems to have been perked up.

“The regime of martial law has been with us for four years
now.  No doubt, martial law has initially
secured some reforms for the country. 
The people were quite willing to participate in the new experiment,
thrilled by the novelty of it all.  After
the euphoria, however, the people seem to have gone back to the old ways, with
the exception that some of our freedoms were taken away, and an authoritarian
regime established.

“We must bear in mind that martial law was envisioned only to
cope with an existing national crisis. 
It was not meant to be availed of for a long period of time, otherwise
it would undermine our adherence to a democratic form of government.  In the words of the Constitution, martial law
shall only be declared in times of ‘rebellion, insurrection, invasion, or
imminent danger thereof, when the pub­lic safety requires it’.  Since we no longer suffer from internal
disturbances of a gargantuan scale, it is about time we seriously rethink the
‘necessity’ of prolonging the martial law regime.  If we justify the continuance of martial law
by economic or other reasons other than the foregoing constitutional grounds,
then our faith in the Constitution might be questioned.  Even without martial law, the incumbent Chief
Exe­cutive still holds vast powers under the Constitution.  After all, the gains of the New Society can
be secured without sacrificing the freedom of our people.  If the converse is true, then we might have
to conclude that the Filipinos deserve a dictatorial form of government.  The referendum results will show whether the
people themselves have adopted this sad conclusion.

“The response of the people to the foregoing issues will
affect generations yet to come, so they should mull over the pros and cons very
carefully.”

6.       This opinion is
written in the same spirit as the President’s exhortations on the first
anniversary of proclamation of the 1973 Constitution that we “let the
Constitution remain firm and stable” so that it may “guide the
people”, and that we “remain steadfast on the rule of law and the Constitution” as he
recalled his rejection of the “exercise (of) power that can be identified
merely with a revolutionary government” that makes its own law, thus:

“x x x
Whoever he may be and whatever position he may happen to have, whether in
government or outside government, it is absolutely necessary now that we look
solemnly and perceptively into the
Constitution and try to discover for ourselves what our role is in the
successful implementation of that Constitution. 
With this thought, therefore, we can agree on one thing and that
is:  Let all of us age, let all of us then
pass away as a pace in the development of our country, but let the Constitution
remain firm and stable and let institutions grow in strength from day to day,
from achievement to achievement, and so long as that Constitution stands,
whoever may the man in power be, whatever may his purpose be, that Constitution
will guide the people and no man, however, powerful he may be, will dare to
destroy and wreck the foundation of such a Constitution.

“These are the reasons why I personally, having proclaimed
martial law, having been often induced to exercise power that can be identified
merely with a revolutionary government, have remained steadfast on the rule of
law and the Constitution.”[54-a]

IV.      A final word on the
Court’s resolution of October 5, 1976 which in reply to the Comelec
query allowed by a vote of 7 to 3 judges of all courts, after office hours,
” to accept invitations to act as resource speakers under Section 5 of
Presidential Decree No. 991, as amended, as well as to take sides in
discussions and debates on the referendum-plebiscite questions under Section 7
of the same Decree.”^[55]

The writer with Mr.
Justice Makasiar and Madame Justice Muñoz Palma had dissented from the majority resolution,
with all due respect, on the ground that the non-participation of judges in
such public discussions and debates on the referendum-plebiscite questions
would preserve the traditional non-involvement of the judiciary in public
discussions of controversial issues. 
This is essential for the maintenance and enhancement of the people’s
faith and confidence in the judiciary. 
The questions of the validity of the scheduled referendum-plebiscite and
of whether there is proper submission of the proposed amendments were precisely
sub-judice by virtue of the cases at bar.

The lifting of the
traditional inhibition of judges from public discussion and debate
might blemish the image and independence of the judiciary.  Aside from the fact that the fixing of a time
limit for the acceptance of the courtesy resignations of judges to avoid an
indefinite state of insecurity of their tenure in office still pends, litigants and their relatives and friends as well as
a good sector of the public would be hesitant to air views contrary to that of
the Judge.

Justices Makasiar and Muñoz Palma who
share these views have agreed that we make them of record here, since we
understand that the permission given in the resolution is nevertheless
addressed to the personal decision and conscience of each judge, and these
views may be of some guidance to them.

---

^[1]
Article XV, section 1.

^[2]
Article XVI, section 1, paragraphs (1) and (2).

^[3]
Article XVII, section 3 (1).

^[4]
Article XVII, section 15.

^[5]
P.D. No. 991 dated Sept. 2, 1976, as amended by P.D. No. 1031 dated Sept. 22,
1976 and P.D. No. 1033 dated Sept. 22, 1976 “Stating the questions to be
submitted to the people in the referendum-plebiscite on October 16, 1976”.

^[6] Art. XV, sec. 1, 1935 Constitution (see Art.
XVI, secs. 1 and 2, 1973 Constitution).

^[7] Resolution on motion for reconsideration in Tolentino vs. Comelec
dated Nov. 4, 1971, at page 3.

^[8] Idem, at page 4.

^[9] Idem, at page 4.

^[10] Idem, at page 4.

^[11] Marshall, C.J. in Marburg vs. Madison,
1 Cranch 137 (1803).

^[12] Cooley’s Constitutional Limitations, 8th Ed.,
Vol. 1, p. 81.

^[13] Idem, pp. 87-88.

^[14] Javellana vs. Exec. Secretary, 50 SCRA 30
(1973).

^[15] Majority opinion at p. 20.

^[16]
21 SCRA 774 (1967).

^[17]
Citing Sec. 1, Art. VI, 1935 Constitution.

^[18]
See sec. 1, Art. VIII, 1973 Constitution.

^[19] Aquino vs. Comelec, 62
SCRA 275 (Jan. 31, 1975); see also Gonzales vs. Comelec,
L-40117, Feb. 22, 1975.

^[20]
Cooley, Constitutional Limitations, 8th Ed., Vol. 1, p. 224.

^[21]
63 Phil. 134 (1936).

^[22] Supra, fn. 19.

^[23] Sunday Express (and Times Journal) issues of
August 29, 1976 reported that “(A)s proposed by the sanggunian
and barangay national executive committees, the
following questions will be submitted in the discussions and referendums:

“1. Do you want martial law to be
lifted?

“2. Do you want to call the interim
National Assembly?

“3. If not, do you want to call a body
with legislative powers?

“4. Do
you want such body to have full legislative powers?

“5. If
not, do you want such body to have limited legislative powers as may be
determined by the President in a presidential decree?

“6. If
you want to call a body with certain legislative powers, do you want to grant
such body authority to propose amendments to the Constitution to make it
conform with the aims of the New Society?

“7. If
you want to call the body referred to in questions 4, 5, and 6, do you want the
members of such body elected by the people through the barangays
in accordance with an election code to be pro­mulgated in a decree by the
President?

“The barangay
and sanggunian executive committees in­formed the
President that it was ‘the thinking of the barangays
to undertake the referendum on an informal manner and that they opted to devise
their own ballots, tally sheets, and all other necessary forms.’

“They likewise expressed their
readiness to undertake the discussions and referendum at ‘our own expense’.

“As proposed, and approved by
the President, the referendum will be done by secret ballot, except in smaller barangays where the residents can be gathered in one
assembly to decide on the issues by roll call vote if desired by residents.

“The canvassing will be done by the barangay
referendum committee.”

^[24] “The other issue to be taken up in the
public discussions is the question on whether the interim national assembly
should be convened or not.

“This question was asked in two previous referenda – in 1973 and
1975 – and was rejected each time by the people.

“The barangays, however, feel it is
time to again ask the people’s opinion of this matter.” (Phil. Express
issue of Aug. 30, 1976).

^[25] Art. IX, sec. 1, 1973 Constitution.

^[26] Cooley’s Constitutional Limitations, 8th Ed.
Vol. 2, p. 1349, citing Chief Justice Davis in Gibson vs. Mason, 5 Nev.
283, 291 thus:  “The maxim which
lies at the foundation of our government is that all political power originates
with the people.  But since the
organization of govern­ment it cannot be claimed that either the legislative,
exe­cutive, or judicial powers, either wholly or in part, can be exercised by
them.  By the institution of government
the people surrender the exercise of all these sovereign functions of
government to agents chosen by themselves, who at least theoretically represent
the supreme will of their constituents. 
Thus all power possessed by the people themselves is given and centered
in their chosen represen­tatives”.

^[27] See fns. 8-10; note in parentheses supplied.

^[28] Tolentino vs. Comelec, 41
SCRA 702, 725; emphasis supplied.

^[29]
36 SCRA 228, 234 (1970).

^[30] Resolution denying motion for reconsideration
dated Nov. 4, 1971, at page 13.

^[31] Idem, at page 16, fn. 6.

^[32] Majority opinion, at page 19.

^[33] Idem, at page 20.

[33-a] Rodriguez
vs. Gella, 92 Phil. 603 (1953); see also Araneta vs. Dinglasan, 84
Phil. 368 (1949).

^[34] Gonzales vs. Comelec,
L-40117, Resolution of Feb. 22, 1975.

^[35] In re Egan 8 Fed. Cas.
367, holding that “Martial law is neither more nor less than the will of
the general in command of the army.  It
overreaches and supersedes, all civil law by the exercise of military power
..” as cited in the Secretary of Justice’s outline of a study on the exercise of Legis­lative Power by
the President under Martial Law, dated Dec. 27, 1972, as reported in Lawyers’
Journal, March 31, 1973 issue, p. 90.

^[36]
Cooley’s Constitutional Limitations, 8th Ed., Vol. 1, pp. 128-129.

^[37]
With the exception of the proposed amendments increasing the membership of the
House of Representatives from 120 to 180 and authorizing members of Congress to
become Con-Con delegates, which were widely pub­licized as a result of the
court proceedings and decision in Gonzales vs. Comelec,
21 SCRA 774.

^[38] “Perspectives and Dimensions of
Constitutional Reforms” delivered as keynote speech at the National
Conference on Constitutional Amendments, July 27, 1970.

^[39] Articles VIII, IX and X, 1973 Constitution.

^[40] U.P. Professor Perfecto V. Fernandez:  Civil Liberties under Martial Law.

^[41] Louis H. Pollale:  The Constitution and the Supreme Court, Vol.
I, page 191.

^[42] Supra, fn. 16.

^[43] Supra, fn. 28.

^[44] See Art. VIII, sec. 2, 1935 Constitution;
Art. X, sec. 5, 1973 Constitution.

^[45] 50 SCRA 30 (1973) and cases cited.

^[46] Now retired Justices J. B. L. Reyes and Calixto O. Zaldivar.

^[47] 41 SCRA at p. 733.

^[48] 21 SCRA at pages 816-817, emphasis copied.

^[49] From Am. Law Review, 1889, p. 311, citing
Ellingham vs. Dye, 99 N. E. pp. 4, 15; emphasis copied.

^[50]
21 SCRA at p. 817.

^[51]
Phil. Daily Express issue of Oct. 11, 1976 reporting the Comelec’s
stand that “Young voters, from age 15 to below 18 can vote not only on the
question of martial law but also on the question regarding the proposed
constitutional amendments”.

^[52]
Phil. Daily Express issue of Oct. 3, 1976.

^[53]
Times-Journal and Phil. Daily Express issues of Oct. 11, 1976.

^[54] In the Bulletin Today issue of October 2,
1976, the President is quoted as himself abstaining from the debates:  “I am trying to steer clear of the
debates because it involves martial law, and it involves, of course, me
personally.  So the less I say about it,
the better, I guess, from my point of view”.

[54-a] Pres.
Marcos’ address on observance of the first anniversary of the 1973 Constitution
on Jan. 17, 1974; Phil. Labor Relations Journal, Vol. VII, Jan., 1974, p. 6.

^[55] The resolution gave the same permission to
court personnel by a 9 to 1 vote with Justice Makasiar
and the writer presenting no objection in the
case of personnel as classified civil service employees, while Justice Muñoz Palma
maintained the same negative.