G.R. No. L-47329. December 09, 1977
ERNESTO C. HIDALGO, PETITIONER, VS. HONORABLE FERDINAND MARCOS Y EDRALIN AND COMMISSION ON ELECTIONS, RESPONDENTS.
CASTRO, C.J.:
Considering the allegations, issues presented, and arguments
adduced (a) in the petition for mandamus and/or prohibition, (b) in the
Solicitor General’s Comment on the petition, (c) in the petitioner’s reply to the Comment, and (d) at the
hearing on December 1, 1977, the Court, without passing upon the
question of the suability of the President, considering that the Commission on
Elections, which is the government entity called upon to implement Presidential
Decree No. 1229, is impleaded, Resolved NOT to give
due course to the petition and to DISMISS the same, for the reasons
hereunder set forth.
(1) The President cannot
be compelled by mandamus or otherwise to convene the “interim
National Assembly” because, inter alia,
this body was abrogated and supplanted by the interim Batasang Pambansa by virtue of
the 1976 amendments to the Constitution, particularly Amendment No. 1 which
partly provides that “There shall be, in lieu of the interim National
Assembly, an Interim Batasang Pambansa.”
(2) The 1976 amendments to
the Constitution ratified by the people in the October 16-17, 1976 referendum-plebiscite and now form
part of the Constitution, hence, the December
17, 1977 referendum, contrary to the petitioner’s posture, may not
be said to be designed to effectuate
their ratification. The holding of the
coming referendum is an exercise authorized by one of those amendments, i.e.,
Amendment No. 7, which provides that a referendum may be called “at any time the government deems it necessary to
ascertain the will of the people regarding any important matter whether of
national or local interest.”
(3) No constitutional
infirmity attaches to Presidential Decree No. 1229 because the referendum
called for therein will not result in an amendment to the Constitution. The question, “Do you vote that President
Ferdinand E. Marcos continue in office as incumbent President and be Prime
Minister after the organization of the Interim Batasang
Pambansa as provided for in Amendment No. 3 of the
1976 Amendments to the Constitution?,” to be submitted to the people in
the December 17, 1977 referendum, is in
neither the nature nor the form of an amendment. It merely asks the people to either reaffirm
or repudiate the confidence in the President which they had previously
expressed. If the people vote
“yes,” Amendment No. 3, which provides, inter alia, that “The incumbent President of the
Philippines shall be the Prime Minister and he shall continue to exercise all
his powers even after the interim Batasang Pambansa is organized and ready to discharge its functions
and likewise he shall continue to exercise his powers and prerogatives under
the Nineteen Hundred and Thirty Five Constitution and the powers vested in the
President and the Prime Minister under this Constitution,” will simply be
reaffirmed and reinforced. If the people
vote “no,” the President, as he has categorically announced, will, in
deference to “the will” of the people and exercising a public
officer’s prerogative, resign.
The cessation in office,
for any reason, by the incumbent President will not result in an amendment to
the Constitution, the provisions of which will remain unaltered.
It is clear from the above that the petition does not pose any
question of sufficient importance or significance to warrant the further
attention of the Court.
The dismissal of the
instant petition is immediately executory.
Makasiar, Antonio, Aquino, Concepcion, Jr., Santos,
Fernandez, and Guerrero, JJ., concur.
Fernando, J., on official
leave.
Teehankee and Muñoz Palma, JJ., files a dissent.
Barredo, J., concurs and reiterates his separate opinion in L-47245.
Martin, J., on sick leave.
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DISSENTING OPINION
MUĂ‘OZ PALMA,
J.:
In the performance of my duties as a private citizen I abide by
the majority decisions of this Tribunal, but as a member of the Court I must
feel free to speak on the basis of my own opinion on the transcendental legal questions
posed in a litigation before Us, for I have sworn to preserve and defend the
Constitution as a Justice of the highest Court of the land.
I concur with the dissenting Opinion of Justice Claudio Teehankee in this case and state in addition the following:
For the same reasons that I have given in Gualberto
J. dela Llana vs. Comelec, L-47245, there is no other recourse for me but
to dissent from the majority Resolution and vote to give due course to this
Petition of Ernesto Hidalgo and to enjoin the forthcoming Referendum of
December 17, 1977 provided for in P.D. 1229.
1. In Sanidad
vs. Commission on Elections, et al., L-44640 and others, October 12, 1976,
it is my view that P.D. 991 and 1033 which called for a national
referendum-plebiscite on October 16, 1976 for the purpose of securing the vote
of the people on certain proposed amendments to the Constitution of 1973, are
null and void for they contravene Article XVI on the amendatory process
of the 1973 Constitution and Section 15
of Article XVII, Transitory Provisions, thereof.
Considering that the forthcoming Referendum of December 17, 1977
submits the following question:
“Do you vote that President Ferdinand
E. Marcos continue in office as incumbent President and be Prime Minister after
the organization of the Interim Batasang Pambansa as provided for in Amendment No. 3 of the 1976
Amendments to the Constitution?”
thereby making
reference to amendment No. 3 of the 1976 Amendments to the Constitution,* and considering further that the proposed referendum
is being justified under amendment No. 7 thereof,** it
follows that P.D. 1229 is null and void for being withÂout constitutional and legal
basis. Amendments 3 and 7 were not
validly proposed and ratified as discussed in the dissenting Opinions in Sanidad.
2. The issue raised by
Petitioner that P.D. 1229 will result in effecting an amendment to the
Constitution merits serious consideration from the Court. I cannot but share the fears and apprehension
of petitioner Hidalgo that the call for the people to vote on the proposed
question although denominated as a referendum will in reality cause further
amendment to the Constitution in the sense that the offices of the President
and Prime Minister are merged in one person for an indefinite period of time
thereby setting at naught the provisions of the Constitution on the form of
governÂment being constituted and abolishing the separate positions of
“President of the Philippines” and “Prime Minister” which
have been created under Articles VII and IX respectively of the 1973 ConstituÂtion.
What will be “institutionalized” (borrowing the term
used in P.D. 1229) is the concentration of the powers of President and Prime
Minister in one particular individual for an indefinite length of time
divesting the interim National Assembly (now Interim Batasang Pambansa) and even the
regular National Assembly, if and when these two bodies are organized, of their
power and prerogative to elect a President and Prime Minister of their choice
for a term expressly provided for in the Constitution. Under Sec. 2, Article VII, the President’s
term is for six years, while the Prime Minister has no fixed term but holds his
post as long as he enjoys the confiÂdence of the National Assembly that elected
him. With a non confidence vote, the
Prime Minister steps down from his post.
(Sec. 13(1), Art. VIII)
If the purpose of P.D. 1229 is to “institutionalize the
preceÂdent and tradition of the Chief of State or Head of the Government submitting himself to
the accounting of the people regularly and periodically when circumstances so
require,” such objective will be achieved by constituting the legislative
body of the government, the National Assembly, as provided for in
Section 2, Article VIII of the 1973 Constitution, to whom the Prime Minister
and the Cabinet shall be
responsible for the program of the government and determination of the guidelines of the national policy.
(Sec. 2, Art. IX)
In a republican state, and the Philippines is one (Sec. 1, Art.
II), the people, in whom the supreme power resides, govern through their duly
elected representatives in a legislative body, and in the parliamentary system
provided for in the Constitution, the powers of government are equally shared
by the National Assembly on the one hand and the Prime Minister and the Cabinet
on the other. Accountability to the
people is assured through the regular processes provided for in the
Constitution, more particularly Section 13, Article VIII thereof, and not
through referenda.
If the desire of the national leaders is to accomplish certain
basic changes in our system of government, such as may be a reversion to the
presidential type, let the changes be submitted to the people in their true
context and through constitutional amendaÂtory processes, but not by means of
referendums.
Hence, my dissenting vote.
* Amendment No. 3 – The incumbent
President of the Philippines shall, within 30 days from the election and
selection of the Members, convene the interim Batasang
Pambansa and preside over its sessions until the Speaker
shall have been elected. The incumbent
President of the Philippines shall be the Prime Minister and he shall continue
to exercise all his powers even after the interim Batasang Pambansa is organized
and ready to discharge its functions, and likewise he shall continue to
exercise his powers and prerogatives under the 1935 ConstituÂtion and the
powers vested in the President and the Prime Minister under this Constitution.
** Amendment No. 7 – The barangays and sanggunians
shall continue as presently constituted but their functions, powers, and
composition may be altered by law.
Referenda
conducted through the barangays and under the
supervision of the Commission on Elections may be called at any time the GovernÂment
deems it necessary to ascertain the will of the people
regarding any important matter, whether of national or local interest.
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DISSENTING OPINION
TEEHANKEE, J.:
I vote to give due course to the petition and to grant the same
insofar as it prays that the scheduled December
17, 1977 referendum be enjoined.
1. The petition basically questions
the validity of the October 1976 Amendments to the 1973 Constitution for not
having been proposed nor adopted in accordance with the mandatory provisions of
Article XVI thereof (granting the constituent power to the regular National
Assembly) or of Transitory Article XVII, section 15 thereof (granting the
constituent power to the interim National Assembly). The petition should be granted, for as stated in my dissenting opinion in Sanidad vs. Comelec[1], “(T)he transcendental constituent
power to propose and approve amendments to the Constitution as well as set up
the machinery and presÂcribe 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 ConstituÂtion 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 AsÂsembly and hence may not be antithetically
entrusted to one man.”
2. Hence, I held therein
that under the controlling doctrine of Tolentino
vs. Comelec[2]
the October 16, 1976 Referendum-Plebiscite to adopt the October, 1976
amendments which created an Interim Batasang Pambansa in lieu of the interim National Assembly could not
receive the Court’s sanction since the
Court had ruled in Tolentino that the ConÂstitutional
provisions on amendments “dealing with the proÂcedure or manner of
amending the fundamental law are binding upon the Convention and the other
departments of the governÂment (and) are no less binding upon the people”
and “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.”[3]
In point of law, I submitted that it was “not legally
tenable” for the majority in the Sanidad
case “without overruling the conÂtrolling precedent of Tolentino
(and without mustering the reÂquired majority vote [of eight] to so
overrule)” – since there was only a plurality (not a majority) of 7 out of
10 votes sustainÂing the incumbent President’s exercise of constituent powers[4]
– “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.'”
3. Prescinding
from the foregoing, as stated in my separate dissenting opinion in the
companion case of De la Llana vs. Comelec resolved by the Court on even date, (and herein
reproduced by reference) the question to be submitted at the scheduled December
17, 1977 exercise is not one that may properÂly be submitted at a referendum –
since it does not fall within the context and purview of “any important
matter, whether of national or local interest” that may be submitted in a
referendum “to ascertain the will of the people” under paragraph 7 of
the October, 1976 Amendments (which authorized for the first time the holding
of such referendums).
The matter of President Marcos continuing in office as incumbent
President (when he as incumbent President and the Batasang
Bayan unanimously concur that “no election is
possible under the Constitution for the position he presently holds”[5]) and to be Prime Minister after the
organization of the Interim Batasang Pambansa as provided for in Amendment No. 3 of the 1976 Amendments
to the Constitution is not a proper subject for submittal in a referendum,
which is purely consultative and does not authorize a yes or no vote on the
continuation in office of a single personality ( notwithstanding the majority’s
contrary dictum).
4. The proposed question
would in effect do away with and render nugatory the provisions of the
Constitution for reÂgular and free contested elections insofar as they provide
that the members of the regular National Assembly[6]
or the interim Assembly[7]
(as proposed to be substituted by the interim Batasang
Pambansa[8])
shall elect their Prime Minister[9] and gives currency to petitioner’s apprehensions
that such referendums are being used to replace the general elecÂtions
called for by the Constitution.[10] The fundamental proÂvisions of the
Constitution which call for contested elections, with the parliament (regular
or interim National Assembly) vested with the power of withdrawing its
confidence from the Prime Minister “by electing a successor by a majority
vote of all its members“[11]
and the Prime Minister advising the President (as the symbolic head of state[12])
in writing to dissolve the National Assembly “whenever the need arises for
a popular vote of confidence on fundamental issues,” whereupon the
President shall so dissolve the National Assembly and call for new elecÂtions,[13]
would thus be eroded and nullified. Such
erosion by means of referendums of the whole structure and spirit of the
Constitution for free contested elections and of the parliaÂmentary system of
government therein mandated should not receive the sanction of the Court.
[1]
L-44640, with Guzman vs. Comelec, L-44684, and
Gonzales vs. Comelec, L-44714, October 12, 1976.
[2]
41 SCRA 702 (1971).
[3]
Resolution on Motion for Reconsideration in Tolentino
vs. Comelec dated Nov. 4, 1971.
[4]
The seven-vote plurality of the ten-member Court then was composed of Castro,
C.J., and Barredo, Makasiar,
Antonio, Aquino, Concepcion
Jr. and Martin, JJ. (with the Chief Justice opining
that it was “not necesÂsary” to “venture to rule on whether or
not the President is vested with constituent power”); while two members, Teehankee and Muñoz Palma, JJ. voted against with Fernando, J. “confining (himself) to
the expression of serious doubts on the question rather than a dissent.”
[5]
Solicitor General’s Comment, pp. 6, 8; P. D. No. 1229.
[6]
Constitution, Article VIII.
[7]
Idem, Transitory Article XVII.
[8]
Idem, October, 1976 Amendments.
[9]
Idem, Article IX.
[10]
In petitioner’s language, “(P)D No. 1229 is
another form of introducing a new Amendment to the 1973 Constitution, by
adopting referenda as a substitute for regular elections as parts of the
Fundamental Law, aside from abolishing or aligning itself to the basic method
of the amenÂdatory process laid down already.
This matter will never be brought out to the attention of the electorate
on December 17, 1977.”
Petitioner’s Reply, page 10.
[11]
Constitution, Article VIII, sec. 13(1).
[12]
Idem, Article VII,
sec. 1.
[13]
Idem, Article VIII,
sec. 13(2).