JOURNAL NO. 100

Aquino, F. S.	Ople, B. F.
Azcuna, A. S.	Padilla. A. B
Bernas, J. G.	Muñoz Palma, C
Rosario Braid, F	Quesada, M. L. M
De Castro, C. M	Rama, N. G
Colayco, J. C.	Regalado, F. D
Concepcion, R. R.	Rodrigo, F. A
Davide, H. G.	Romulo, R. J
Foz, V. B.	Sarmiento, R V.
Guingona, S. V.C	Suarez, J. E
Jamir, A. M. K.	Sumulong, L. M
Laurel, J. B.	Tadeo, J. S. L.
Lerum, E. R.	Tan, C.
Maambong, R. E	Uka, L. L
Nieva, M. T. F	Villacorta, W. V.
Nolledo, J. N.

RESUMPTION OF SESSION

At 10:56 a.m., the session was resumed.

REMARKS OF MR. GUINGONA

Upon resumption of session, Mr. Guingona stated that he and
Mr. de Castro agreed to submit the proposal to a vote, after they have
made their remarks.

Mr. Guingona disclosed that the main objection of Mr. de
Castro is the applicability of the proposal to only one person. He also
opined that the conflict lies in the provision regarding the retirement
of retireable officers vis-a-vis the tour of duty of the Chief of Staff.
He stated that because the retirement provision would have no
exception, even the Chief of Staff would be covered by said provision.

REMARKS OF MR. DE CASTRO

Mr. de Castro pointed out that Section 12(6) of the Article on
General Provision has prospective application and it would cover even
the incumbent Chief of Staff, because he assumed his position only in
late February 1986 from which date, he has three years to serve and such
service may be extended pursuant to the second sentence thereof which
provides for an extension in times of war or other national emergency;
therefore, such proposal in the Transitory Provisions would not be
necessary.

INQUIRY OF MR. RODRIGO

In reply to Mr. Rodrigo’s query, Mr. Guingona affirmed that
the word “incumbent” refers to whoever would be the Chief of Staff upon
ratification of this Constitution.

OBJECTION OF MR. ROMULO

Mr. Romulo expressed his objection to the proposed amendment,
firstly, on the ground that it would be inconsistent with the provision
on three-year tour of duty with extension only in times of war or
national emergency. Secondly, he opined that no man is indispensable and
that retireable officers should be allowed to retire. And finally, he
underscored that there are some doubts on the inclusion of the term of
the incumbent President in the proposed Constitution, and the tenure of
the incumbent Chief of Staff would not be an exception.

Reacting thereto, Mr. Guingona stated that there could be no
declaration of war or national emergency before Congress is established,
but the proposal is premised on the insurgency problem prevailing in
the country.

RESTATEMENT OF MR. GUINGONA’S AMENDMENT

Mr. Maambong restated Mr. Guingona’s proposed amendment to read:

THE PRESIDENT MAY ALLOW THE INCUMBENT CHIEF OF STAFF, WITHOUT
REGARD TO HIS RETIREABILITY, TO SERVE THE FULL THREE-YEAR MAXIMUM TOUR
OF DUTY.

The Sponsor did not accept the proposed amendment.

Mr. Padilla, likewise, registered his objection to the proposed amendment.

Submitted to a vote, and with 9 Members voting in favor and 24 against, the proposed amendment was lost.

PROPOSED AMENDMENT OF MR. DAVIDE

Thereupon, Mr. Davide proposed to add a new Section to read as follows:

SEC. ______ ALL EXISTING TREATIES OR INTERNATIONAL AGREEMENTS
WHICH HAVE NOT BEEN RATIFIED BY THE BATASANG PAMBANSA BECAUSE OF SECTION
16 OF ARTICLE XIV OF THE 1973 CONSTITUTION SHALL REMAIN VALID UNTIL
DISAPPROVED BY THE SENATE.

In reply to Mr. Maambong’s query on whether treaties and
international agreements alluded to refer to those entered into by the
President, Mr. Davide replied in the affirmative stating that his
proposal is precisely designed to correct the 1973 Constitutional
provision by giving back to Congress, particularly the Senate, the power
to review such treaties and international agreements.

On the status of treaties entered into by the former President
should the Senate disapprove them, Mr. Davide stated that such treaties
would become ineffective and without force.

In reply to Mr. Rama’s query whether the agreements pertinent
to the U.S. Military Bases are embraced ,within the phrase “existing
treaties and international agreements”, Mr. Davide opined that although
technically considered executive agreements, they are actually treaties.

Mr. Rama pointed out that these agreements stipulate the
payment of rental and aid. He inquired as to what would happen if said
agreements would be disapproved by the Senate, to which Mr. Davide
replied that the disapproval would not have retroactive effect.

On Mr. Rama’s query as to what would happen to the monies
still to be paid, Mr. Davide explained that if they represent payments
for arrears in rentals, they could be collected because in the meantime
the other contracting party enjoyed the benefits under the agreement.

On whether the provision would only create more complications,
Mr. Davide explained that his proposal merely intends to accord the
Senate the authority to review all agreements entered into by the
deposed President under an anomalous provision in the 1973 Constitution.

INTERPELLATION OF MR. GUINGONA

In reply to Mr. Guingona’s query whether would be better to
specify that the provision would not cover the treaties entered into by
Mr. Marcos before he became a dictator, Mr. Davide pointed out that Mr.
Marcos could not have entered into any treaty without the concurrence of
the Senate.

Mr. Guingona contended that the provision is too broad, to
which Mr. Davide disagreed by explaining that it refers only to treaties
or international agreements entered into by the President pursuant to
Section 16 of Article XIV of the 1973 Constitution.

INTERPELLATION OF MR. AZCUNA

Mr. Davide agreed with Mr. Azcuna’s observation that the
provision pertains to treaties and international agreements entered into
by way of an exception in the 1973 Constitutional provision on National
Economy under which the President, in the guise of national interest,
may enter into treaties or agreements without the concurrence of
Congress.

On Mr. Azcuna’s query whether the intention of the proposal is
to make treaties, which were validly entered into, subject to
disapproval by the Senate, Mr. Davide stated that such treaties would
remain valid unless disapproved by the Senate.

On whether such a unilateral act would not be in violation of
national commitments, Mr. Davide pointed out that rules of international
law allows the abrogation or modification of treaties, which rules are
applicable to the many treaties which were entered into by only one man
under a very questionable constitution.

Mr. Davide agreed with Mr. Azcuna’s statement that under the
country’s legal system, a statute could amend a treaty in the same way
that a treaty could amend a statute so that whichever comes later, could
amend or repeal the other.

Mr. Azcuna then asked whether the proposal would no longer be
necessary since Congress can pass a law which is inconsistent with a
treaty, thereby repealing the same, to which Mr. Davide replied that the
process is circuitous than his proposal to give the Senate authority to
review treaties and international agreements and to disapprove the same
if found to be inconsistent with the national interest or public good.

Thereupon, Mr. Azcuna proposed to insert the sentence ALL SUCH
EXISTING TREATIES SHALL NOT BE RENEWED OR EXTENDED WITHOUT THE
CONCURRENCE OF THE SENATE

Mr. Davide accepted the proposal.

INTERPELLATION OF MR. NOLLEDO

In reply to Mr. Nolledo’s query, Mr. Davide reiterated that the 1973 Constitution is null and void.

Mr. Nolledo then stated that all existing treaties and
international agreements are likewise null and void because they do not
have any constitutional basis, to which Mr. Davide replied that the
conclusion is correct. He recalled, however, that their position with
respect to the U.S. Military Bases Agreement was overturned by the Body
and, in view of this, there must be some degree of respect to this
agreement until disapproved by the Senate.

Mr. Nolledo opined that Mr. Davide could still be consistent
with his statement but he stated that the proposal would seem to
validate the existing treaties and international agreements for purposes
of complying with international commitments, to which the latter agreed
but subject to the disapproval of Congress.

On whether or not all these treaties may be disapproved
because the Senate may apply, after all, the provision of Section 16 of
Article XIV of the 1973 Constitution, Mr. Davide replied that there
would be 24 Senators of different minds and whose thinking he could not
foretell.

In reply to Mr. Nolledo’s query whether the principle rebus
sic stantibus could now be applied because the country has a new
Constitution, Mr. Davide replied in the affirmative not only because of a
new Constitution but also because of the prevailing circumstances at
the time the agreement was executed.

On whether it could be suggested to the Senate to review all
those existing treaties and agreements .entered into by virtue of
Section 16 of Article XIV of the 1973 Constitution to determine whether
they are for the national welfare and interest, Mr. Davide stated that
he knows for a fact that many of these international agreements did not
really take into account the interest and welfare of the country.

MANIFESTATION OF MR. GUINGONA

At this juncture, Mr. Guingona expressed his reservation
relative to the statement that a later law could repeal a treaty because
the Body had adopted a provision of international law as part of the
laws of the land, to which Mr. Davide explained that the Body only
adopted the generally accepted principles of international law.

INTERPELLATION OF MR. OPLE

In reply to Mr. Ople’s query whether the proposal is
equivalent to a selective repudiation policy for all treaties and
international agreements entered into without the concurrence of
Congress, Mr. Davide replied that generally it is.

On whether this would also cover agreements for foreign loans,
Mr. Davide stated that these are merely executive agreements and would
not be included.

In reply to Mr. Ople’s query whether he could name at least
one treaty which warrants review by the Senate, Mr. Davide stated that
the Treaty of Amity, Navigation and Commerce with Japan was previously
rejected by the Philippine Senate but approved by former President
Marcos.

Mr. Ople suggested that it would be better to come up with a
more substantial list of those treaties which are considered too
onerous. He then queried whether the validity of a treaty could be
brought before the Supreme Court on the ground of constitutionality, to
which Mr. Davide replied that it could, but the matter is procedural. He
stated that he merely wants to provide a transitory provision allowing
the proper government authority to ratify or review treaties and
international agreements which earlier have been entered into under
anomalous conditions.

On whether conceding to the Senate the matter of selective
repudiation of treaties and international agreements would not be one
way of preempting the powers of the Supreme Court to review such
treaties, Mr. Davide opined that the Members of the Senate should always
take into account the national interest, the common good and the
national welfare.

On whether the proposal is consistent with the provision which
upholds the validity and the continuing operation of existing laws,
executive orders and letters of instructions, Mr. Davide stated that it
is not inconsistent therewith.

As to whether the proposal would, in effect, open the
floodgates for indiscriminate review and possible repudiation of all
existing treaties and international agreements, Mr. Davide opined that
the Senate would not act indiscriminately, and that it is precisely
because of his confidence in the Senate that he proposed the amendment
in the Transitory Provisions.

On Mr. Ople’s query whether the proposal also includes the
Tripoli Ceasefire Agreement, Mr. Davide stated that he was not in a
position to know whether it was a treaty or an international agreement.

As to whether treaties and international agreements are
generally entered into by the contracting States on the presumption of
regularity and good faith, Mr. Davide replied in the affirmative, but he
added that the anomalous character of the 1973 Constitution calls for a
review of the treaties and international agreements entered into by Mr.
Marcos.

Thereupon, Mr. Ople manifested that while his first reaction
was to ask for the deletion of the proposal, he would desist from doing
so because of the amendment of Mr. Azcuna.

INTERPELLATION OF MS. AQUINO

In reply to Ms. Aquino’s query whether it is the intention of
the proposal to allow unilateral revocation or repudiation of treaties
which have become onerous because of supervening circumstances, Mr.
Davide stated that it was not only in view of the supervening
circumstances, but also of the circumstances attendant to the execution
of the treaty or agreement. Mr. Davide affirmed that he would invoke the
principle of rebus sic stantibus as a ground for the review of
contracts or agreements.

Ms. Aquino observed that the principle of rebus sic stantibus
always yields to the principle of pacta sunt servanda when there is a
definitive period in the treaty or international agreement.

Mr. Davide opined that the intervening period from 1972 to the
present would not be enough to allow the principle of rebus sic
stantibus to supplant the pacta sunt servanda rule. He stated that the
effect of the provision is to allow the review and disapproval of treaty
or international agreement, although there is some degree of validity
until disapproved by the appropriate body.

INTERPELLATION OF MR. REGALADO

On Mr. Regalado’s query, Mr. Davide affirmed that under the
proposed amendment, the question able treaties would remain valid until
disapproved by the Senate or unilaterally abrogated by the Senate.

In this connection, Mr. Regalado stated that disapproval by
the Senate, which amounts to abrogation, would automatically terminate
the effectivity of the treaty subject to certain post-abrogation
conditions agreed upon by both parties, to which observation Mr. Davide
concurred. He also stated that his understanding of the doctrine of
rebus sic stantibus is that a treaty that is valid initially should, in
the course of time when the circumstances change and the conditions
which gave rise to it no longer control, come to a mutually happy end.

In response, Mr. Davide recalled that his position on the
military bases was that the Agreement was void from the very beginning
which view was overturned by the Commission. He stated that he made the
proposal on the assumption that the treaties had to be accorded some
degree of validity. He stated, however, that since these treaties were
entered into under the anomalous provision of the 1973 Constitution, the
Senate should review and may disapprove them if they were entered into
outside the authority of the former President.

Reacting thereto, Mr. Regalado expressed concern on the
country’s standing in the diplomatic community. He stated that whether
or not the Constitution was anomalous is our concern and not of the
foreign contracting parties. He stressed that the Philippines should not
appear before the international community to have observed the doctrine
of caveat emptor even in the matter of international agreements.

In reply, Mr. Davide stated that he was not so concerned on
how the Philippines would stand before the diplomatic community, his
main concern being the country’s integrity and national interest,
especially if these treaties were entered into in gross violation of the
laws on national patrimony and national economy and the common good.

Mr. Davide affirmed that Mr. Azcuna’s proposed amendment would be a happy compromise.

TERMINATION OF THE PERIOD OF INTERPELLATIONS

On motion of Mr. Rama, there being no objection, the Body closed the period of interpellations.

PERIOD OF AMENDMENTS

On motion of Mr. Rama, there being no objection, the Body proceeded to the period of amendments.

PROPOSED AMENDMENT OF MR. AZCUNA

Mr. Azcuna proposed to insert between the words “shall” and
“remain” on line 4, the words NOT BE RENEWED OR EXTENDED WITHOUT THE
CONCURRENCE and to delete the words “remain valid until disapproved”. As
amended, the proposal would read:

ALL EXISTING TREATIES OR INTERNATIONAL AGREEMENTS WHICH HAVE
NOT BEEN RATIFIED BY THE BATASANG PAMBANSA BECAUSE OF SECTION 16 OF
ARTICLE XIV OF THE 1973 CONSTITUTION SHALL NOT BE RENEWED OR EXTENDED
WITHOUT THE CONCURRENCE BY THE SENATE.

INQUIRY OF MR. RODRIGO

On Mr. Rodrigo’s inquiry whether the phrase “without the
concurrence of the Senate” refers to majority of the Members of Senate,
Mr. Azcuna stated that it should be two-thirds vote as provided in
Section 21 of the Article on the Executive Department.

INQUIRY OF MR. MAAMBONG

In response to Mr. Maambong’s query, Mr. Azcuna affirmed that
the provision on the renewal and extension of treaties or international
agreements shall apply only after the draft Constitution shall have been
ratified.

Mr. Maambong inquired as to the purpose of the provision
inasmuch as upon the ratification of the Constitution all treaties and
international agreements shall be subject to the concurrence of the
Senate, to which Mr. Azcuna replied that there is doubt as to whether
the renewal or extension of existing treaties would be submitted to the
Senate as these are old treaties which were entered into without the
concurrence of the Legislature. The Transitory Provision, he stressed,
makes it clear that any further renewal or extension of such treaties
would need the concurrence of the Senate.

Mr. Davide accepted the amendment of Mr. Azcuna

POINT OF INFORMATION OF MR. NOLLEDO

Apropos the comments of Mr. Maambong, Mr. Nolledo pointed out
that there are some treaties which contain renewal clauses and that the
Azcuna amendment, therefore, would not be out of place.

INQUIRY OF MR. OPLE

Mr. Ople then inquired whether executive agreements are
included under “treaties and international agreements” in the proposed
amendment, to which Mr. Azcuna replied in the negative.

Mr. Ople then remarked that executive agreements are routinely
renewed and that it would be unfair to the Philippine Government to
oblige it to submit such agreement to the Senate for further
proceedings.

INQUIRY OF MR. NOLLEDO

On Mr. Nolledo’s query whether the proposed amendment would
preclude the President from negotiating with other parties on a new
treaty which may be apart and different from the existing treaties, Mr.
Azcuna replied in the negative. He noted that, in this case, the new
treaty would be subject to the concurrence of the Senate under the
regular provision.

INQUIRY OF MR. DE LOS REYES

On the query of Mr. de los Reyes relative to “renewal” and
“extension”, Mr. Azcuna affirmed that renewal would refer to an entirely
new agreement while extension to an old agreement.

Mr. de los Reyes then asked whether it would not be better to
delete the word “renewal” and to limit the provision to EXTENSION
inasmuch as “renewal”, which is an entirely new agreement, necessarily
requires concurrence of the Senate.

Mr. Azcuna replied that a renewal pursuant to a renewal clause
in the treaty itself is technically an extension, in which case, there
is doubt as to whether or not it would need concurrence.

Mr. Azcuna observed that both terms should be used.

MR. SARMIENTO’S AMENDMENT TO THE AMENDMENT

In view of the reply of Mr. Azcuna to Mr. Rodrigo’s
interpellation that concurrence would refer to two-thirds of all the
Members of the Senate which are the same wordings used in the 1935
Constitution, Mr. Sarmiento proposed to incorporate the phrase:
CONCURRENCE BY AT LEAST TWO-THIRDS OF ALL THE MEMBERS OF THE SENATE.

Mr. Azcuna accepted the amendment.

In reply to Mr. Suarez’ request for clarification on the use
of the words “renewed” and “extended” should there be an automatic
extension or renewal clause in case of failure of either party to
indicate a desire to terminate it within a period of 60 days before the
expiration of the treaty or international agreement, Mr. Azcuna affirmed
that under such circumstances, it would be deemed extended or renewed.
He also affirmed the need for concurrence by two-thirds vote of the
Senate although the government should indicate this requirement to the
other contracting party prior to the automatic renewal.

In view thereof, the Committee accepted Mr. Azcuna’s amendment as amended.

PROPOSED AMENDMENT OF MR. PADILLA

On lines 2 to 4, Mr. Padilla proposed to delete the clause “by
the Batasang Pambansa because of Section 16 of Article XIV of the 1973
Constitution” so that Section 3, as amended would read:

ALL EXISTING TREATIES OR INTERNATIONAL AGREEMENTS WHICH HAVE
NOT BEEN RATIFIED SHALL NOT BE RENEWED NOR EXTENDED WITHOUT THE
CONCURRENCE BY THE SENATE.

Mr. Padilla clarified that there is a provision in Section 14,
Article VIII, which lays the fundamental rule that all treaties and
international agreements should have the concurrence of the Senate and
that, as amended, Section 15, Article XIV of the 1973 Constitution,
reads:

“Any provision of paragraph 1, Section 14 Article VIII and of
this Article notwithstanding, the Prime Minister may enter into
international treaties or agreements as the national welfare and
interest may require.”

He observed that the insertion of this amendment was
considered by Mr. Davide as anomalous because it is in conflict with the
other provision that requires the Senate’s concurrence.

Mr. Padilla opined that there is no need to mention the
Batasang Pambansa or the Section because it is related to another
Section and that it will be simpler to restate Section 3.

Mr. Davide accepted the proposed amendment.

Thereupon, Mr. Azcuna, on behalf of the Committee also accepted Mr. Padilla’s amendment.

Mr. Azcuna restated Section 3, as amended, to read:

ALL EXISTING TREATIES OR INTERNATIONAL AGREEMENTS WHICH HAVE
NOT BEEN RATIFIED SHALL NOT BE RENEWED OR EXTENDED WITHOUT THE
CONCURRENCE OF AT LEAST TWO-THIRDS OF ALL THE MEMBERS OF THE SENATE.

INQUIRY OF MR. RODRIGO

On the query of Mr. Rodrigo, Mr. Azcuna affirmed that the
provision refers to renewal and extension of existing treaties upon
ratification of the Constitution, by two-thirds vote of the Senate.

On whether this would imply that new treaties entered into
after the ratification of the 1986 Constitution would come under the
rule should they be renewed or extended in the future, Mr. Azcuna opined
that under the general rule, there is no need for a statement to that
effect.

INQUIRY OF MR. DAVIDE

On the query of Mr. Davide relative to the two-thirds vote,
Mr. Azcuna stated that this would be two-thirds of all the Members of
the Senate.

VOTING ON MR. AZCUNA’S AMENDMENT, AS AMENDED

Upon direction of the Chair, Mr. Azcuna restated the amendment, to wit:

ALL EXISTING TREATIES OR INTERNATIONAL AGREEMENTS WHICH HAVE
NOT BEEN RATIFIED SHALL NOT BE RENEWED OR EXTENDED WITHOUT THE
CONCURRENCE OF AT LEAST TWO-THIRDS OF ALL THE MEMBERS OF THE SENATE.

Submitted to a vote, and with 34 Members voting in favor, and none against, the proposed section was approved by the Body.

MANIFESTATION OF MR. MAAMBONG

Mr. Maambong manifested that for purposes of the record, the
newly approved Section would be denominated as Section 19 while the
provision on free public secondary education would be denominated as
Section 18.

PROPOSED PROVISION OF MR. DAVIDE

Mr. Davide proposed, as a new Section in the Transitory Provisions, the following:

ALL EXISTING CONTRACTS ENTERED INTO BY THE FORMER PRESIDENT OR
BY THE GOVERNMENT OR ANY OF ITS SUBDIVISION, INSTRUMENTALITY OR AGENCY,
INCLUDING GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS BETWEEN SEPTEMBER
21, 1972 AND FEBRUARY 25, 1986, AS WELL AS ALL CONTRACTS, CONCESSIONS,
PERMITS, OR OTHER FORMS OF PRIVILEGES OR AUTHORIZATIONS FOR THE
EXPLORATION, DEVELOPMENT, EXPLOITATION OR UTILIZATION OF NATURAL
RESOURCES OR FOR THE OPERATION OF PUBLIC UTILITIES ENTERED INTO, GRANTED
ISSUED OR ACQUIRED BEFORE THE RATIFICATION OF THIS CONSTITUTION MAY BE
REVIEWED BY THE INCUMBENT PRESIDENT.

INQUIRY OF MR. MAAMBONG

Mr. Maambong inquired into the period within which the
President can exercise such power, to which Mr. Davide replied that he
did not provide for a time limit, but he would welcome an amendment
thereon.

Mr. Maambong observed that the proposal is, in effect, an
exception to the Bill of Rights clause on non-impairment of obligation
of contracts, to which Mr. Davide replied that in the Freedom
Constitution, among the objectives of the government is the removal of
all vestiges, institutions or structures of oppression, and injustice.
He stressed that the provision would only be on agreements or contracts
prejudicial to the national interest.

In reply to Mr. Maambong’s inquiry, Mr. Davide affirmed that
the Body could make a valid exception to the Bill of Rights in the same
Constitution which provides a clause on non-impairment of contracts. He
added that the 1973 Constitution has a similar provision.

Mr. Maambong observed that the wordings of Mr. Davide’s
proposal were based on Section 2, Article IV of Proclamation No. 3 and
inquired why Mr. Davide deleted the phrase “and when the national
interest requires, amend, modify or revoke them”.

In reply, Mr. Davide maintained that if the President is given
such authority to review, those matters shall be taken into account. He
stated that he has no objection to inserting the same phrase.

Thereafter, upon suggestion by Mr. Maambong, Mr. Davide agreed to the deletion of the word “incumbent”.

INQUIRY OF MR. BENGZON

Mr. Bengzon pointed out that Mr. Davide would perhaps agree
that the only way by which existing contracts can be reviewed and
repudiated would be if there are instances or circumstances attendant to
the treaties which would vitiate their validity, otherwise, it would
impair vested rights and obligations under valid contracts.

In reply, Mr. Davide stated that he was willing to accept the
Committee proposal to insert the qualification “when national interest
so requires”.

Mr. Bengzon expressed apprehension that unscrupulous persons
may utilize the proposed Section 4 by using the President’s name to
harass and make money from people and companies who had been awarded
such contracts. He maintained that with or without the provisions if the
administration finds that the contracts are attended by fraud or
circumstances which vitiate validity, the administration could motu
proprio review the contracts. He cited the precedent when the
administration motu proprio reviewed the Westinghouse contract on the
nuclear plant in Bataan.

In reply thereto, Mr. Davide stated that the review was made
pursuant to Proclamation No. 3 which vests such authority in the
President.

Mr. Davide underscored the need to give the President a
constitutional shield, otherwise, it may be difficult, on the ground of
non-impairment, to order the review of a contract entered into by the
previous regime. He stated that the President could take refuge on such
provision.

Mr. Bengzon also opined that even without such provision in
the Freedom Constitution, the President and the Administration could
still review or repudiate the contracts if there are circumstances that
would vitiate the validity of said contracts. He reiterated that he was
against any provision that could be used to justify the action of
unscrupulous people who might use the name of the President or people
close to her in order to harass other people and make money.

Mr. Davide, however, underscored the need of the provision on
review by citing a similar provision in the Freedom Constitution. He
maintained that the possibility of abuse by unscrupulous people is not
ample justification for rejecting the proposal.

INQUIRY OF MR. NOLLEDO

Mr. Nolledo observed that Mr. Davide’s proposal would widen
the scope of the provisions in the Freedom Constitution, in that it
would entail a review of all existing contracts entered into by the
former President and contracts and concessions pertaining to the
development of natural resources or operation of public utilities, and
therefore would cover all contracts even for a period of 100 years, to
which Mr. Davide explained that it was precisely the reason why he used
the words “may be”.

Citing the ruling of the Supreme Court in the case of Ayug vs.
The Honorable Vicente N. Cusi, Mr. Nolledo stressed that the
Constitution must respect the vested rights theory, except when demanded
by the police power of the State. In reply thereto, Mr. Davide pointed
out that he already expressed agreement to the insertion of the
qualifying phrase “when public interest so requires”.

On whether the phrase “review by the President” would mean
declaring the contract null and void, or imposing certain terms, or
reviewing other aspects of the contract, Mr. Davide stated that his
proposal contemplates the kind of review done on the Bataan Nuclear
Plant contract, whereby modifications may be made to remove onerous
terms and conditions.

Thereupon, Mr. Nolledo expressed support of the sentiments expressed by Mr. Bengzon.

REMARKS OF MR. MONSOD

Mr. Monsod stated that one of the purposes of writing the
Constitution is to stabilize the government and country, but Mr.
Davide’s open-ended proposal would make investors think twice before
entering into contracts. He opined that anything which tends to increase
insecurity in contracts and anxiety in business relationships should
not be constitutionalized.

In reply, Mr. Davide maintained that his proposal, rather than
destabilize the situation, would eradicate the unjust and oppressive
structures and the inequitous vestiges of the previous regime.

Mr. Monsod stated that there would be stability if contracts
had been reviewed and affirmed but since the proposal would open them to
review, there would be uncertainty until they are affirmed.

WITHDRAWAL OF MR. DAVIDE’S PROPOSED AMENDMENT

At this juncture, Mr. Maambong inquired if Mr. Davide would insist on his proposed amendment.

Mr. Davide withdrew his proposed amendment on the
understanding that, even without it, the President may at any time
review contracts.

Mr. Davide also manifested withdrawal of his proposed
amendment on the priority to be given to measures for economic recovery
and reconstruction.

PROPOSED AMENDMENT OF MRS. ROSARIO BRAID

Thereafter, Mrs. Rosario Braid, jointly with Mr. Davide, proposed a new Section, to read:

ALL FRANCHISE CERTIFICATES OR ANY FORM OF AUTHORITY FOR THE
OPERATION OF PUBLIC UTILITY INCLUDING COMMERCIAL TELECOMMUNICATIONS
GRANTED OR ISSUED. AFTER THE RATIFICATTON OF THIS CONSTITUTION UNTIL THE
CONVENTNG OF THE FIRST CONGRESS SHALL BE SUBJECT TO REVIEW BY THE
LATTER.

She explained that this proposal would be different from the
addendum she proposed on Mr. Davide’s proposal which was withdrawn,
considering that this proposal refers to the responsibility of Congress
to review franchise certificates granted between the ratification of the
Constitution and the convening of the First Congress.

Mr. Monsod observed that the proposal would not be necessary
considering that it only refers to a six-month period between the
ratification of the Constitution and the convening of the First Congress
and considering that Section 15 of the Article on National Economy and
Patrimony already provides that “neither shall any such franchise or
right be granted except under the condition that it shall be subject to
amendment, alteration or repeal by Congress when the common good so
requires.”

In view of Mr. Monsod’s explanation, Mrs. Rosario Braid withdrew her proposed amendment.

PROPOSED AMENDMENT OF MR. MONSOD

Mr. Monsod proposed a new Section, to read:

ADVERTISING ENTITIES AFFECTED BY SECTION ______ ARTICLE _____
OF THIS CONSTITUTION SHALL BE GIVEN FIVE YEARS FROM THE RATIFICATION TO
COMPLY ON A GRADUATED BASIS WITH THE MINIMUM FILIPINO OWNERSHIP
REQUIREMENT THEREIN.

He explained that the proposed amendment would provide for the
period of implementation of the Section on advertising entities which
had been previously approved. He pointed out that a five-year period on a
graduated basis would be reasonable enough to comply with the minimum
required Filipino equity.

INQUIRY OF MS. AQUINO

In reply to Ms. Aquino’s query, Mr. Monsod affirmed that the
proposed amendment may be self-executory and that an implementing law
would not be necessary.

Mr. Bengzon agreed that a statutory implementation would not
be necessary because the Executive Department through the Board of
Investments could provide for the details of implementation and enforce
it with greater dispatch.

Mr. Monsod, in turn, agreed with Mr. Bengzon’s statement.

INQUIRY OF MR. OPLE

In reply to Mr. Ople’s query, Mr. Monsod affirmed that the
schedule of graduated divestment would be on a proportionate basis
during the five-year period as suggested by Ms. Aquino, which scheme
could be provided by the Board of Investments, under the Ministry of
Trade and Industry.

INQUIRY OF MR. QUESADA

On Mrs. Quesada’s query as to how the five-year period of
compliance was arrived at, Mr. Monsod explained that the ten-year period
of compliance for the nationalization of retail trade was too long and
it was decided that five years would just be reasonable time within
which to divest. He pointed out the problem of lack of Filipino
resources to purchase 70% of the companies. He disclosed that although
one of the advertising companies that would be affected intimated that
more than five years would be favorable, he felt that the Body would not
agree to a period longer than five years.

Mr. Bengzon pointed out, however, that Filipino executives and
businessmen in the advertising industry believe that a period shorter
than five years would make it difficult for them to take over 70 percent
of the companies.

In reply to Mrs. Quesada’s query as to why the advertising
entities are given special consideration in the Transitory Provisions,
Mr. Monsod underscored that it is only the advertising entities which
the draft Constitution provides for a new ownership requirement for
Filipinos.

INQUIRY OF MR. PADILLA

On Mr. Padilla’s contention that the equity provision on
advertising agencies should be prospective rather than retroactive, Mr.
Monsod pointed out that the intent of the proposal is to apply it to
existing businesses, hence the need to provide it in the Transitory
Provisions.

Adverting to the Constitutional provision limiting the area
for domestic corporation to own public agricultural lands not exceeding
1,000 hectares, which provision is prospective and not retroactive, Mr.
Padilla stated that corporations which have already been granted 1,024
hectares should not be required to divest themselves of the 24-hectare
excess. In reply thereto, Mr. Monsod recalled that existing advertising
companies would not be exempted if they have not complied with the
minimum Filipino requirement. He explained, however, that the difference
of 24 hectares was arrived at considering the 24 hectares allowed to
individuals in addition to 1000 hectares allowed for corporations,
therefore, the limitation of 1000 hectares applies to corporations while
the individual could still own 24 hectares.

Mr. Padilla also pointed out the prospective effect of the
provision limiting the 24 hectares allowed to Private homestead to 12
hectares, in reply to which, Mr. Monsod stated that his proposal intends
that the 70 percent requirement should apply to existing companies
operating in the country.

Furthermore, Mr. Padilla underscored that even the regulation
of the 70:30 equity ratio has prospective application on companies
engaged in advertising.

Mr. Monsod opined that the whole issue of ownership of
telecommunication companies centered on whether the provision pertinent
thereto would be made to require a higher percentage of Filipino
ownership resulting in the mandate for divestment. He pointed out that
the records show the same intent for advertising companies.

Mr. Padilla pointed out that a retroactive application of the
law may impair some vested rights and may only be justified by the
exercise of police power by the State.

At this juncture, Mr. Bacani stated that it was the
understanding of the Committee that the provision would affect existing
advertising agencies.

Mr. Padilla pointed out that if the provision would be applied
retroactively it would affect only three foreign firms and may be
viewed as doubtful in terms of its validity, legality and
constitutionality.

REMARKS OF MS. AQUINO

Ms. Aquino informed that the ruling in the case of People vs.
Quasha explicitly stated that the new equity ratio for public utility
franchises would not apply only to new but also to existing
corporations. She stressed that the Body is empowered to determine the
applicability or even the retroactivity of the provision since it is a
settled rule that the principle of retroactivity applies only to
ordinary statutes and legislation.

INQUIRY OF MR. MAAMBONG

In reply to Mr. Maambong’s query as to whether he would be
amenable to stating the agency which would implement the provision, Mr.
Monsod stated that it would be sufficient to put on record what the
implementing agency should be.

INQUIRY OF MR. RODRIGO

In reply to Mr. Rodrigo’s query, Mr. Monsod affirmed that
“graduated and proportionate” means that the corporation could
accelerate the Filipinization process without violating the
Constitution.

INQUIRY OF MR. SUAREZ

In reply to Mr. Suarez’ query whether a corporation would have
to cease operation in case it would not be able to comply with the
Filipinization process within the period of five years, Mr. Monsod
replied in the affirmative.

INQUIRIES OF MS. AQUINO

On the acceleration process, in reply to Ms. Aquino’s query
whether a corporation could “balloon” at the beginning but not at the
end of the five-year period, Mr. Monsod replied in the affirmative.

Mr. Maambong, adverting to the case of People vs. Quasha cited
by Ms. Aquino, pointed out that the ruling therein is the exception to
the general rule, to which Ms. Aquino replied that the Body could decide
on the applicability of the provisions and if it so decides, it could
give the provisions retroactive application even without the Quasha
ruling.

To clarify matters, Ms. Aquino agreed with Mr. Maambong’s
statement that if the intention of the Body is not specific, the general
rule is that the constitutional provision has prospective application;
but if it is the Body’s intention to provide a retroactive effect, then
the provision would have retroactive application.

At this juncture, Mr. Padilla pointed out that in the case of
People vs. Quasha the accused therein was acquitted for falsification of
public documents on the ground that there was no law requiring it a
duty to include in a truthful narration of facts other facts which may
be considered as false.

Thereafter, Mr. Davide proposed to substitute “be given” with HAVE and to insert ITS before “ratification”.

Mr. Monsod accepted the proposal. Thereupon, he read the
proposed amendment as follows: ADVERTISING ENTITIES AFFECTED BY SECTION
_____ OF ARTICLE _____ OF THIS CONSTITUTION SHALL HAVE FIVE YEARS FROM
ITS RATIFICATION TO COMPLY ON A GRADUATED AND PROPORTIONATE BASIS WITH
THE MINIMUM FILIPINO OWNERSHIP REQUIREMENT THEREIN.

Submitted to a vote, and with 30 Members voting in favor, and 1 against, the same was approved by the Body.

Mr. Maambong stated that the approved Section would be designated as Section 20.

Thereupon, Mr. Ople requested Mr. Bengzon to report to the Body its schedule for the final week.

ANNOUNCEMENT OF MR. BENGZON

Thereupon, Mr. Bengzon announced the schedule for the
following week which was prepared by the Committee and approved by the
President:

1. Monday, October 6, 1986 — Last day for the consideration of the Article on the Transitory Provisions;

2. Tuesday and Wednesday, October 7 and 8, 1986 — Deliberation on all pending Sections of the various Articles;

3. Thursday, Friday and Saturday, October 9, 10 and 11, 1986 —
Consideration of the Report of the Committees on Sponsorship; and Style
on the final draft of the Constitution.

Mr. Bengzon stated that the Body might hold sessions the whole
day of Saturday, October 11, 1986 and approve, on Second Reading, the
draft of the entire Constitution on Sunday, October 12, 1986.

He added that Monday and Tuesday, October 13 and 14, 1986,
would be allocated for the printing of the Constitution and on
Wednesday, October 15, 1986 the Body would approve the Constitution on
Third Reading; sign the Constitution; and hold the closing ceremonies
after which, the Members would proceed to Malacañang to present the
signed Constitution to the President of the Philippines.

MANIFESTATION OF MR. GUINGONA

Mr. Guingona manifested that the Committee on Style would be
sponsoring the corrections for three plenary session days with the
Sponsorship Committee. He suggested that the members of the Committees
on Style and Sponsorship join the members of the Steering Committee in
overseeing the printing of the Constitution.

Thereupon, Mr. de Castro suggested that the Body start its
daily sessions at exactly 9:30 in the morning and at 2:00 o’clock in the
afternoon.

The Chair took note of the suggestion.

On whether the Members would be allowed until October 15, 1986
to correct the transcripts of the proceedings, the Chair stated that
the corrections could even be done after said date. The Chair urged the
Members to make their corrections on the transcripts so that the entire
Record of the Commission could be printed soon.

Mr. Guingona also stated that the computer support may be able
to produce at least 10 articles which have already been corrected by
the Committee on Style and reviewed by the Committee on Sponsorship for
distribution the following week.

MANIFESTATION OF MR. FOZ

Mr. Foz appealed to the Committees on Style; and Sponsorship not to revise the provisions already approved on the floor.

Mr. Bengzon explained that it is precisely for this reason
that the Steering Committee allowed the Committees on Style; and
Sponsorship to have three days within which to present the
Constitution’s final draft to the Body.

In reply to the Chair’s query whether the Transitory
Provisions could be finished by Monday, Mr. Suarez replied that it is
possible to finish it with cooperation from the Body.

MANIFESTATION OF MR. OPLE

Mr. Ople manifested that Section 7 had aroused much interest
from the Members and a consensus was reached to have it taken up as the
last item of the agenda for the Transitory Provisions.

MANIFESTATION OF MR. RODRIGO

Mr. Rodrigo stated that the Committee on Style had been
working very hard to improve the phraseology of the provisions. He then
expressed regret to hear statements that it would revise the substance
of the provisions.

In reply to the Chair’s query whether the Body could proceed
with the consideration of Sections 8 and 9, Mr. Suarez replied in the
affirmative. He added that the Body would start its discussions on
Monday with the proposal to fix the salary of the President at
P200,000.00 annually; P150,000.00 for the Vice-President and the Chief
Justice; P120,000.00 for the Associate Justices and the Senators; and
P100,000.00 for all the others.

AMENDMENT OF MR. CONCEPCION

Thereafter, Mr. Concepcion stated that the Committee on the Judiciary proposed that Section 8 should read as follows:

SECTION 8. THE LEGAL EFFECT OF THE LAPSE BEFORE THE ADOPTION
OF THIS CONSTITUTION, OF THE APPLICABLE PERIOD FOR THE DECISION OR
RESOLUTION OF A MATTER SUBMITTED FOR ADJUDICATION SHALL BE DETERMINED IN
APPROPRIATE JUDICIAL PROCEEDINGS.

Mr. Concepcion explained that the provision is being proposed
in response to questions as to what would happen to cases on which
period for action by the courts have lapsed before the ratification of
the new Constitution. He stated that since this is a legal question
which is beyond the jurisdiction of the Committee on the Judiciary to
decide, it was agreed to simply place the aforecited provision in the
Transitory Provisions.

AMENDMENT OF MR. MAAMBONG

On paragraph 8, Mr. Maambong suggested and Mr. Concepcion
accepted the insertion of the words CASE OR before the word “matter” to
align it with Section 5. As amended, it would read: “decision or
resolution of a case or matter”.

INQUIRY OF SUAREZ

Upon inquiry of Mr. Suarez, Mr. Concepcion affirmed that the
legal effect of the lapse shall be determined in appropriate judicial
proceedings.

In answer to Mr. Suarez’s query whether the Parties adversely
affected would have to file appropriate judicial proceedings in order
that their rights can be properly determined, Mr. Concepcion stated that
if the parties could not agree, they have to settle the matter
judicially.

Reacting thereto, Mr. Suarez stated that it might result in
endless litigations and inquired whether it would not be better if the
Body put in a more effective control and direction to the Supreme Court
so that such lapses would not happen.

Mr. Concepcion stressed that the lapses have already caused a
problem and the Committee would welcome suggestions on how to resolve
the problem. He informed that one suggestion is to apply the provision
at the existing Constitution which provides that “in the case of
appealed cases the decisions appealed from shall be deemed affirmed, and
in the case of original petitions, that the petitions are deemed
dismissed.”

Mr. Concepcion stated, however, that the appellant in appealed
cases and the petitioners in original petitions, are not to blame for
the lapse of the period and should not be made to suffer.

INQUIRY OF MR. DE LOS REYES

On Mr. de los Reyes’ inquiry, Mr. Concepcion clarified that
“appropriate judicial proceeding” as envisioned in the proposal would be
a question of law which the court would have to decide, the question
being whether the cases submitted before it are proper or improper. In
many cases, he observed that much would depend on the manner by which
counsels for both parties present the issue to the court.

He affirmed, however, that the matter shall be determined on a case-to-case basis and that there would be no uniform rule.

PROPOSED AMENDMENT OF MR. SUAREZ

Mr. Nolledo suggested the retention of the term “appropriate
proceedings” and to allow the Supreme Court to promulgate the rules
involving procedural matters to be embodied in the Rules of Court.

He then proposed to add the phrase AS MAY BE PROVIDED IN THE RULES OF COURT after the words “appropriate proceeding”.

REMARKS OF MR. REGALADO

Mr. Regalado stated that the use of the phrase “appropriate
judicial proceedings” may invite additional cases in court. He informed
that there are two matters to be considered which may not really
approximate the gravity of that concern, namely: the doctrine of stare
decisis wherein the parties to a case are bound by the decision of the
Supreme Court in a previous case wherein the period, facts and
circumstances are in pari materia; and that a separate proceedings may
not be necessary because if the Supreme Court for instance, reverses the
decision of the lower court, or denies an original petition, the party
need not file a separate action but file a motion for reconsideration in
the same case. Mr. Regalado pointed out that the Supreme Court shall
clarify its decision right in the case on appeal or in the original
petition. In case the Supreme Court does not do so, Mr. Regalado stated
that the party may ask for reconsideration.

Mr. Regalado then proposed to change “period” to PERIODS
because it refers to the different periods corresponding to the Supreme
Court, the Court of Appeals and Regional Trial Courts; and after the
word “adjudication”, to insert the words BY THE COURTS as found in the
Article on the Judiciary, so that the Section would read:

THE LEGAL EFFECT OF THE LAPSE BEFORE THE ADOPTION OF THIS
CONSTITUTION OF THE APPLICABLE PERIODS FOR THE DECISION OR RESOLUTION OF
A CASE OR MATTER SUBMITTED FOR ADJUDICATION BY THE COURTS SHALL BE
DETERMINED IN APPROPRIATE JUDICIAL PROCEEDINGS AS MAY BE PROVIDED IN THE
RULES OF COURT.

INQUIRY OF MR. DE LOS REYES

Mr. de los Reyes observed that there is nothing in the
existing Rules of Court about such situation and asked if the Committee
is contemplating that the Supreme Court would promulgate supplemental
rules to cover the situation, in reply to which Mr. Regalado added that
such supplemental rules would, in fact, implement the provisions of the
Constitution as the provisions of the 1973 Constitution on the time
constraint was later expanded by the Supreme Court by way of three
resolutions.

INQUIRY OF MR. FOZ

Upon inquiry of Mr. Foz, Mr. Concepcion affirmed that the
Supreme Court had ruled in a number of decisions that the periods
mentioned in the Constitution are merely directory.

On whether such rulings would already resolve the problems
presented in the provision insofar as the parties are concerned, Mr.
Concepcion explained that the present Constitution provides that in case
of lapse, the decision appealed from would be considered affirmed or
the petition would be dismissed, which is a patent manifestation of the
unusual result reached by the Supreme Court. Mr. Concepcion added that
if it is directory, it could not produce the effect stated in the 1973
Constitution.

Mr. Foz remarked that in spite of the Supreme Court ruling
that it is merely directory, private parties claim that their rights
have been violated, in reply to which, Mr. Concepcion stated that it is
not within the power of the Constitutional Commission to judge because
the Commission’s function is merely to draft the Constitution.

In view thereof, Mr. Foz suggested that the Commission should
not provide anything in the Transitory Provisions, in reply to which Mr.
Concepcion noted that it may be the reason why the Commission had been
blamed for not saying anything. He adverted to a communication or
article of Mr. Jeremias Montemayor stating that the administration of
justice would be worse because of the Commission’s failure to introduce a
provision to this effect.

Mr. Foz maintained that it would be a distortion of the provision just approved by the Body.

On whether the Supreme Court and other courts can be expected
to finally decide the cases, Mr. Concepcion remarked that the Commission
is faced with the dilemma of either satisfying the demands of the Bar
or doing nothing to answer objections from the members of the Bar.

In view of the controversy which has arisen on the section
under consideration, Mr. Suarez requested for adjournment of session.

ADJOURNMENT OF SESSION

At this juncture, Mr. Bengzon manifested that the Body would finish with the Article on the Transitory Provisions on Monday.

On motion of Mr. Suarez, there being no objection, the Chair
declared the session adjourned until nine-thirty in the morning of
Monday, October 6, 1986.

It was 1:21 p.m.

I hereby certify to the correctness of the foregoing.

(SGD.) FLERIDA RUTH P. ROMERO
Secretary-General

ATTESTED:

(SGD.) CECILIA MUÑOZ PALMA
President

Approved on October 6, 1986