ABELARDO SUBIDO, COMMISSIONER OF CIVIL SERVICE, PETITIONER, IN RE:  VALIDITY OF SECTION 4 AND SECTION 8(A), PARA­GRAPH 2, REPUBLIC ACT 6132. IN THE MATTER OF THE PETI­TION FOR D…

CONCURRING AND DISSENTING OPINION

BARREDO, J.:

I concur in the Court’s resolution to overrule petitioners’
objection on constitutional grounds to the second paragraph of Section 8(a) of Republic
Act 6132, but I cannot agree to view similarly the majority’s position and
reasoning in so far, as Section 4 thereof is concerned.

To say that the Court’s resolution regarding said Section 4
disappoints me and has made me very unhappy is to put it mildly.  When the majority wit­tingly adopts subrosa a premise that implies legis­lative
deception upon the people, 1 consider it my bounden duty to take a stand which,
to my mind, is more in keeping with my usefulness as a member of this
Court.  I claim no nobler sentiments nor
deeper sense of duty, much less more wisdom, than those of any of my
distinguished and learned brethren, but in these days when constitutionalism
and everything it implies are in the air, it is my firm conviction that as the
highest court of the land, the supreme tribunal to which the Constitution of
this Republic has entrust­ed alone the final authority to interpret and
construe its provisions in order to guide the citizenry and everyone else as to
the true meaning and purposes thereof, it is incumbent upon Us to meet
constitution­al questions squarely after exhausting Our efforts in determining
the relevant factual backgrounds of the disputed act, instead of resorting to
equivocations and theoretical premises, hardly logical in themselves.  I am sure that another occasion like this
will not a­rise in the foreseeable future. 
In these cases now be­fore Us, the Court is called upon to pass upon the
constitutional validity of an act of the legislature enacted, not in relation
to ordinary matters of le­gislation, but to the proper steps needed to amend
the present constitution or to make an entirely new one.  That anything like this will not again be pre­sented
to this Court during the balance of my consti­tutional term here even if, God
willing, I live beyond it, is a certainty. 
Withal, Our decision in these cases will affect all our people more
deeply than ordinary laws.  Unaccustomed
yet, unlike my se­nior colleagues, to momentous situations like this, I have
tried my level best to see it in their light, but the more I consider the pros
and cons during Our deliberations, the more I am convinced that I cannot join
them.  I regret I have to say that I find
the majority’s posture, much more the expressed and un­expressed arguments
supporting the resolution, to be not invulnerable, as I am sure the majority
considers mine less sustainable, but I am firmly resolved that if I must err, I
would rather err on the side of giving every Filipino an unhampered freedom to
partici­pate, in the manner he deems best fit for him in his circumstances, in
the remaking of the fundamental law of the land, as long as he does not cause
thereby any permanent injury to public interest.  If none of us is certain he is correct, since
there are formidable arguments for and against our respective positions, why
should I vote to deny to any of our countrymen what the founding fathers of
this nation might have decided he should enjoy?

Contrary to what its language readily implies and what, I am
convinced, is the commonly accepted interpretation of Section 3 of Constituent
Resolution No. 2, or better still; what I strongly believe to be its
discernible intent, the majority opinion holds that said section which reads
thus:

“SEC. 3.  The office of
Delegate shall be honorary and shall be com­patible with any other public
office; Provided, That Delegates who do not receive any salary from the
govern­ment shall be entitled to a per diem of fifty pesos for
every day of attendance in the Convention or in any of its committees:  Provided, however, That every
Delegate shall be enti­tled to necessary travelling
expen­ses to and from his place of resi­dence when attending sessions of the
Convention or of its committees.”

cannot be interpreted as permitting
officers and em­ployees of the civil service, etc. to be candidates for
Delegate in the coming constitutional convention without resigning from their
respective positions or forfeiting the same, because according to the major­ity’s
expressed premise, said provision is “a mere declaration which does not
affect the intrinsic nature of the office of delegate from the standpoint of
its compatibility or incompatibility with any other public office within the
meaning of the constitution.” In other words, the majority maintains that whether
the office of Delegate is compatible or incompatible with another public office
is not for the constituent Congress to say, but for the courts to determine, in
the light of the intrinsic nature of the offices con­cerned, regardless of what
the congressional view or determination on the matter may be, hence, such
“de­claration” does not bar Congress from making, in the exercise of
its ordinary legislative powers, any of the offices involved a prohibited one, inspite of their being compatible.

The point of weakness that I perceive in this ruling of the
majority lies in that it assumes that the constituent Congress or, for that
matter, the le­gislative Congress, cannot allow one person to occupy
simultaneously two or more incompatible offices, a hypothesis the correctness
of which cannot be assumed.  There is
nothing in the constitution that generally enjoins such a practice.  It is only with respect to members of the
legislature that the constitution spe­cifically prohibits them from accepting
any other of­fice or position in the government.  (Sec. 16, Art. VI) On the other hand, Section
3 of Article XII which prohibits officers and employees from receiving double
compensation would seem to imply that one person may occupy several positions,
provided he is not doubly compensated, and the constitution is silent as to
whether the offices are compatible or incompatible.  As a matter of fact, how many officials are
there in the government today who are occupying several posi­tions which can be
more or less incompatible?  In any event,
it is agreed that the familiar principle in the law of public officers that in
the public interest, it is improper for one person to occupy simultaneously
incompatible offices does not preclude the power of the legislature to make
exceptions to said principle.  With these
considerations in mind, I hold, contrary to the majority’s opinion, that the
provision of Section 3 saying that the “office of Delegate shall be
honorary and shall be compatible with any other public office” was not an empty
declaration, resolving no question, guiding no one.  Parenthetically, the majority has sig­nificantly
omitted to say what is being declared by their own conceived
“declaration”.  Is it a
declaration of what need not be declared because it is palpable to everyone
that intrinsically the office of Delegate can­not be incompatible with any
other office in the govern­ment? Is it a declaration of policy?  It is a declara­tion of what? The truth is
that it is no mere declara­tion, in the empty sense the majority sees it.  Contra­ry to the majority’s view, I hold that
the intention of Section 3 is to make it plain or to declare, and this is where
the word declaration is more appropriate, that it is the will of the
constituent Congress that the of­fice of Delegate should be considered as
compatible with any other office and that any occupant of the lat­ter may be
elected and may act simultaneously as Dele­gate in the constitutional
convention, any doubts about the matter notwithstanding.^[1]

To make its will more patent, Section 3 further expressly
provides that “Delegates who do not receive any salary from the government
shall be entitled to a per diem of fifty pesos for every day of
attendance in the convention or in any of its committees – – (and) (T)hat every
Delegate shall be entitled to necessary travelling
expenses, etc.”, meaning to say that govern­ment officers or employees,
who may be Delegates shall not receive any per diem because of
their salaries, but as to travelling expenses, they
will be entitled there­to like every other Delegate.  The majority, however, passes over and does
not make mention of these addition­al provisions.  The explanation given during the
deliberations is that these provisions are mere consequence of the
“declaration” of compatibility. 
If the ‘decla­ration” is “a mere declaration” indeed;
which may not be availed of as a grant of authority to government people to run
as such for the convention, why these provisions for the manner of compensating
Delegates receiving sala­ries from the government?

Moreover, if it may be conceded that the plain words of Section 3
refer, as some of my colleagues argue, only to those who do not receive
salaries from the government, (in other words, they do not necessarily, refer
to persons in the government payroll) I find that Section 4 of Republic Act
4914 which was approved by the same senators and congressmen who passed the
constituent resolution, for the purpose precisely of implementing the said
resolution, pro­vides as follows:

“SEC. 4.  The office of
Delegate shall be compatible with any other public office:  Provided, That Dele­gates who do not
receive any salary from the Government shall be entitled to a per diem
of fifty pesos for every day of attendance in the convention or any of its
committees:  Provided, however,
That a delegate who is re­ceiving salary from the Government may choose to
receive his salary or the per diem herein provided:  Provi­ded, further, That every
delegate shall be entitled to the necessary travelling
expenses to and from his place of residence when attending sessions of the
convention or of its committee.”

As can be seen, this provision speaks
clearly and de­finitely of “a delegate who is receiving salary from the
Government.” In view of these words, can there still be any doubt that the
Congress, both as a consti­tuent body and as a legislature, had in mind
allowing government officials and employees to sit as Delegates in the
convention while at the same time being salaried by the government?  As far as the majority is concerned, there is
absolutely nothing in these words and phrases of our senators and congressmen
in Section 3 of Resolu­tion 2 and Section 4 of Republic Act 4914 to indicate
that they intended to allow officers and employees of the government to be
Delegates without resigning or forfeiting their positions.  What makes me very unhappy, as 1 have said at
the outset of this opinion, is that my limited knowledge and experience do not
permit me to en­joy the luxury of indulging in the same process of rea­soning
which the majority has magnificently pursued in this case.  I must confess I am envious of minds that can
read in words a meaning that We ordinary mortals would commonly understand
otherwise.^[2]

Now that I have mentioned Republic Act 4914, might just as well
say at this juncture that the majority’s main thesis that the provision of
Section 3 of Re­solution 2 is a mere declaration was, during the delibe­rations,
said to mean that such declaration, considering its somewhat equivocal or
ambiguous phraseology, is not a rule of conduct permitting government employees
to be Delegates but only a way of telling Congress, as a Legis­lature, that the
constituent Congress had no objection to the former giving the permission in
question.  Grant­ing such an unorthodox proposition
to be correct, how does the majority view Section 4 of Republic Act 4914, which
is practically a verbatim reproduction of Section 3 of Resolution 2?  Also as a mere declaration, whatever that
means, and not a rule or grant of authority, parti­cularly because of the
insertion therein of the clause which makes express mention of delegates
receiving salary from the government?  To
me this question is purely rhe­torical; it is interesting to find out if the
majority has any answer to it. 
Personally, I cannot conceive of a legislative act intended to establish
the procedure of electing Delegates to a convention as being “a mere de­claration”.  And to see that Section 4 of Republic Act
4914 was not “a mere declaration”, all We have to do is to consider
that if the Congress had not approved Resolu­tion 4 and Republic Act 6132, and
an election were held under the provisions of Resolution 2 and Republic Act
4914 only, there would have been no question that officers and employees of the
government would have been able to run therein without resigning, unless
stopped by this Court’s declaration in an appropriate proceeding that the
resolution and the law are unconstitutional for being in conflict with Section
2 of Article XII of the cons­titution reading thus:

“Sec. 2.  Officers and
employees in the Civil Service, including mem­bers of the armed forces, shall
not engage directly or indirectly in partisan political activities or take part
in any election except to vote.”

As I see it, this is what the majority is reluc­tant to do.  It has no desire to meet squarely the real
question herein involved which is that constitutional question I have just
referred to.  Instead, the majority
insists that “there is no inconsistency between the declaration in Section
3 of Resolution No. 2 and the provision of Section 4 of Republic Act
6132.” As­suming section 3 of Resolution No. 2 to be a mere “de­claration”,
whatever that means, again I ask, how about Section 4 of Republic Act 4914, aforequoted? I can con­ceive of a constituent resolution as
being a mere “de­claration”, but I frankly cannot see how Section 4
of Republic Act 4914, being worded in the manner it appears can also be
considered as a mere declaration.

In other words, the majority has chosen to base its resolution on
the theoretical, not very logical, premise suggested by the amici
curiae, Senators Arturo Tolentino and Jovito Salonga, that there is no
inconsis­tency between the constituent resolution, on the ore hand, and Section
4 of Republic Act 6132, on the other, rather than on the obvious factual
predicate that the constituent resolution has been intended precisely to allow
government officers and employees to be Delegates in the Constitutional
Convention without forfeiting their positions. 
In support of this factual premise, I am referring to, I submit the
following observations:

1.  As already stated,
Section 4 of Republic Act 4914, which indisputably is the legislative implement­ation
of the constituent resolution in question, ex­pressly mentions compensation for
Delegates receiving salaries from the government.  Why would Delegates re­ceive salaries from
the government unless they are em­ployees? 
Why would the law speak of a Delegate choosing between his salary and
the per diem unless such Delegate is an employee at the same
time?

2.  Resolution No. 2 was
approved together with Re­solution No. 3. 
As will be recalled Resolution No. 3 was intended to clear the way for
members of Congress to be Delegates without forfeiting their seats.  A cur­sory glance at the resolution would
convince anyone of the truth of this proposition.  The resolution reads:

“SECTION 1.  Section
sixteen, Ar­ticle VI of the Constitution of the Philippines
is amended to read as follows:

‘SEC. 16.  No Senator or Mem­ber
of the House of Representa­tives may hold any other office or employment in the
Government without forfeiting his seat, nor shall any Senator or Member of the
House of Representatives, during the time for which he was elected, be
appointed to any civil office which may have been created or the emolument
whereof shall have been increased while he was a Member of the Congress.  He may, however, be a Member of a
Constitutional Convention.'”

Such being the case, it stands to reason that Reso­lution No. 2
had a parallel purpose insofar as officers and employees in the civil service
are concerned.^[3]
Re­solution No. 3 had to be submitted to the people for ra­tification and it is
now a historical fact that the same was rejected.  It is clear to me, however, that said re­jection
does not and cannot affect the original purpose and intent of Resolution No.
2.  Withal, it is evident that whereas
Resolution No. 3 was submitted to the people because there was at least some
doubt as to whether or not the purpose thereof could be achieved without amending
the constitution, it was believed unnecessary to do so with Resolution No. 2
because it must have been felt by the majority in the constituent Congress that
the same is consistent with the constitution. 
No less than the amicus curiae, Senator Tolentino, expounded on this pro­position when he was asked
whether or not Section 2 of Article XII, which I have quoted earlier in this
opi­nion, enjoining partisan political activity among em­ployees in the civil
service is applicable to the elect­ion of Delegates to the Constitutional
Convention and he answered in the negative.

Incidentally, in his separate concurring opinion, Mr. Justice
Castro argues that if the constituent Congress had really intended to give more
effect to Section 3 of Resolution No. 2 than that of a “declaration”,
what­ever he means by that, the Resolution No. 2 would have been submitted to
the people for ratification in like manner as Resolution No. 3.  I humbly submit that it is sufficient answer
to this argument to point out that, as have just stated, there must have been a
consensus that the resolution and the ordinary legislation to implement it
would suffice to make officers and employees eligible in the convention without
giving up their positions, not­withstanding Section 2 of Article XII of the
Constitution.  If such were not the
belief of the legislators then, how could they have approved this resolution,
even as a mere declaration, knowing the sense thereof to be unconstitu­tional?

3.  It is a fact of common
knowledge that after the passage of Republic Act 4914, government officials and
employees interested in running for the convention took the said law as a
permission for them to do so, notably among them, the petitioner Commissioner
of Civil Service who went to the extent of issuing an official opinion along
this line to all offices of the government for the information of all the
members of the civil ser­vice.  (Opinion
No. 17, 1970, Annex I of Subido Petition) No one ever
questioned said circular.  What is more,
the Committee Report signed by Senator Pelaez, the
senate sponsor of the measure in question, recommended the- the government
officers and employees who will run should be considered to be on official
leave until they are de­feated or the end of the convention, should they
win.  I would like to quote from said
report:

“The Committee favors this view par­ticularly in the sense
that the position of Delegate is not strictly speaking a ‘Public office’, not
having the essen­tial element of permanency or continuity required of a public
office.  It recommends however that
adequate safeguards be embodied in the Convention law so as not to impair
public service while allowing civil servants to seek delegate positions or to
participate openly in the campaign.”

At this juncture, I feel it is my duty to the people to state
here that in following the line of reasoning it has pursued, the majority gave
credence to the information that the real reason behind Section 3 of Resolution
No. 2 was not to favor government officers and employees but, rather, like
Resolution No. 3, it was to enable senators and congressmen to run.  In other words, according to this
information, the two constituent resolutions had exactly the same purpose, that
is, to favor the legislators them­selves, but one, Resolution No. 2, was worded
in such an ambiguous and equivocal manner as to seem to refer to the other
officers and employees in the government, thereby concealing the selfish and
egoistic intent of the members of Congress. 
Such information swallowed by the majority chokes me.  If such information is true, I am at a loss
as to what words can best be used to denounce such deception upon the people,
and the mere thought that this Supreme Court could base its decision in this
important constitu­tional case on it naturally disappoints me.

I cannot believe, however, that the constituent Congress that
approved Resolutions 2 and 3 could have really had such a deceptive
purpose.  There was absolute­ly nothing
to be gained by it.  With the rejection
of Resolution No. 3, it is inconceivable that our legislators would still avail
of Resolution No. 2 to run for the con­vention without forfeiting their
seats.  I am of the con­sidered view that
precisely because Resolutions 2 and 3 were approved at the same time, they were
intended, as I have explained earlier, to favor the members of Congress and the
other government officers and employees separately.  Consequently, since the majority opinion is
fundamentally anchored on an unacceptable predicate, it must necessarily fall.

I have earlier stated that Section 3 of Resolution 2 was approved
by the constituent Congress notwithstanding doubts as to its possible conflict
with Section 2 of Article XII.  Judging
from the fact that Republic Act 4914 practically reiterated in its Section 4,
the Section 3 of Resolution 2, it can reasonably be assumed that the pre­vailing
opinion in Congress has always been that it is not violative
of the constitution for Congress to allow officers and employees of the
government to run for the office of Delegate in the constitutional convention
and to sit therein if elected without resigning their positions.

Under these circumstances, I have to take Section 4 of Republic
Act 6132 as a manifestation of a complete change of heart on the part of
Congress.  I do understand that the
reason for this new attitude of Congress could be the con­viction that with the
rejection of Resolution No. 3, there is a discernible indication that the
people would also not favor members of the civil service to be delegates in the
convention without resigning their positions, even if per­sonally I do not
share such view.  In any event, if as I
have just stated, Congress has seen fit to repeal Republic Act 4914, in order
precisely to equalize the position of government employees with those of the
members of Congress, the question: arises as to whether such repeal can have
any legal effect, considering that Section 4 of Republic Act 4914 practically
incorporates bodily the provisions of Section 3 of Constituent Resolution No.
2.  Accordingly, this Court’ cannot
escape the duty of passing on the constitutionality of the constituent
Resolution.  The only way by which the
legal effectivity of the repeal of Republic Act 4914
by Republic Act 6132 can be sustained is to declare that Republic Act 4914 is
repugnant to the Constitution, inasmuch, as the consensus in the Court is that
what the constituent resolution provides cannot be amended or repealed by
ordinary legislation.  In fact, Section 3
of Resolution 4 expressly provides that the implementing legislation “shall not
be inconsistent with the provisions of this Resolution”, meaning
Resolution 2 as amended by Resolution 4, which amend­ments preserved the
controversial Section 3 of Resolution 2.

Of course, such a consensus is not mentioned in the majority’s
resolution, for to do so would have been disas­trous to its conclusion.  Instead, the majority skirted, the consensus
by the process of attempting to reconcile Section 3 of Resolution No. 2 with
Section 4 of Republic Act 6132 by holding that the real law is the latter and
that the former is “a mere declaration” of I do not know what.  If the reconciliation made by the majority
were only logical, not by pure rationalization, but in the context of
contemporary developments I have discussed above, I would have heartily joined
my esteemed colleagues because I be­lieve with them that the traditional
presumption of consti­tutionality that accompanies all legislative and
executive acts compels that every effort to sustain constitutionality must be
exhausted before unconstitutionality may be declared.  I must hasten to add, however, that the
reconciliation must be reasonable and not merely forced, if not ab­surd, as I
believe it is, in this case.

Coming now to the constitutional issue I have urged the Court to
resolve, that is, whether or not Sec­tion 3 of Resolution No. 2 is repugnant to
Section 2, Article XII of the Constitution, I am convinced that it is not.

For emphasis, it may be reiterated that Section 2 of Article XII
prohibits officers and employees of the government to engage in partisan
political activities and to take part in any election except to vote.  Hav­ing in view the intent and purpose of
this constitutional mandate, I feel very strongly, like the amicus curiae,
Senator Tolentino, that the reasons that can be cited
to justify its application to the election of Delegates to the constitutional
convention are far outweighted by the fundamental
considerations that inform the contrary con­clusion.

To start with, let it not be said that it is only in connection
with the forthcoming constitutional convention that the non-partisan character
thereof is being safeguarded.  It is to
the credit of our great lead­ers during the first constitutional convention, Quezon, Osmeña, Recto, Laurel,
Roxas, and others that said con­vention and the
election of the Delegates thereto were markedly non-partisan.  This was as it should always be.  Indeed, greater efforts have been made and
more effect­ive measures have been designed and are now in operation to insure
that the impending elections be non-partisan, If this is so, what fear is there
that the officers and employees in the civil service should participate therein
just like any other citizen without any sword of De­mocles
over their heads of possible administrative sanc­tions against their
campaigning for their candidates?  I
think it is but reasonable to believe that the purpose in insuring that the
election should be non-partisan is in line with the idea to give every Filipino
whether in or out of the government equal right and opportunity to work for
candidates that he believes will fashion, thru an amended or new constitution,
a better Philippines, and not, as in the case of ordinary elections, just for ones
who will man a new administration, which more often than not does not
necessarily mean a better government, much less a better Philippines.  The election of Delegates to the
constitutional convention cannot be equated with ordinary elections.  The choice of men to conduct the ordinary and
daily affairs of government can well be left in the hands of less than all the
citizenry, but when it comes to the election of the men who more or less will
shape the fundamental law that will affect all their lives and liberties, it is
but fitting and proper that the restrictions ordinarily applied to certain
segments of the people, like the members of the civil service and the armed
forces, should be relaxed, if not altogether rendered temporarily inapplicable,
in order that no one may say that he has been denied his natural share as a
component part of the sovereign people.

In the light of these considerations, I find it dif­ficult to
agree that in ordaining Section 2 of Article XII, it is the intent of the
constitution to prohibit all officers and employees in the civil service,
including the members of the armed forces, from enjoying nothing more than the
right to vote in the election of Delegates to the constitutional
convention.  It is simply absurd to think
that it is the purpose of the disputed constitutional pro­vision to exclude
such a big and substantial portion of the people from any activity in such an
election except to vote.  After all,
constitutional conventions are not called more than once, if at all, in every
generation, hence, the feared evils that attend ordinary elections cannot visit
the people any oftener.  True, the issues
in such an elec­tion are of the highest political nature, but that is pre­cisely
why he must be given utmost, if not unrestrained participation in the election
of those who will decide those issues and even in the making of them, if he
can, by being a Delegate in the convention, since such decisions are bound to
affect his life, rights and liberties more effectively, pervasively and
permanently, than ordinary acts of the legislature or of the executive.

The argument of the majority that Section 4 of Rep­ublic Act 6132
does not really prohibit a person who is in the civil service or the armed
forces to be a candi­date, if he wants to run, because all he has to do is to
resign from his position in order to be capacitated to run is, to my mind, a
narrow view of the situation.  It
overlooks, in the first place, the plight of a man who by reason of his
naturally possessed qualifications and his long, honest and distinguished
service in the govern­ment could be an invaluable asset in the convention.  He is willing to be a Delegate, but because
he has been ho­nest and dedicated, he cannot afford to lose his job; never mind
if he wins, at least, he would have the honor of being Delegate, but how about,
if he loses?  So, to a great extent, this
prohibition hampers the freedom of the man to run for the convention.  Viewing it from another angle, the government
itself would be permanently losing his valued services, rare as he is, when he
can very well be on leave for only a few months.  Besides, the public has also an interest in
his candidacy.  The coun­try needs the
best talents for the convention.  If
these talents are restricted beyond their personal capacities to run, the
country also, not that man alone stands to lose.

It is further argued that it would be “detrimen­tal to the
government and the public at large” to allow government officers and
employees to be candidates with­out resigning because the government would be
deprived of their services “for the unpredictable length of time that the
convention may last”.  Weighed
against the inesti­mable contribution they may make to the framing of the
fundamental law, this alleged detriment is insignificant, particularly because
the “unpredictable length of time that the convention may last”
cannot, reasonably speaking, be really longer than a few months.  How many offices in the government are presently
without permanent incum­bents?  Indeed, I
have reason to believe that the posi­tions that will be affected because of the
officers and employees of the civil service who will run for the con­vention,
cannot outnumber those with “acting” incumbents now.  To be sure, there will be quite a number of
civil service officers and employees who will run, but it is ridiculous to
suppose that their number will really dis­rupt, much less paralyze, the
functions of government.

In closing, I must confess that all I have said above
notwithstanding, if I am reading the feelings and inclinations of each of my
esteemed colleagues more or less correctly in relation to these cases, the
decision of the Court would not be different, even if what I con­sider the
proper approach had been observed by the majority.  I am personally convinced that with the
present composi­tion of the Court, Section 3 of Resolution No. 2 and Section 4
of Republic Act 4914, assuming it may not be considered repealed, may not
successfully hardle the cons­titutional barrier, if
only because all of the members of the Court who have concurred in the view
that Section 4 of Republic Act 6132 is in accord with Section 2, Article XII of
the Constitution, may not be reasonably expected to uphold the
constitutionality of Section 3 of Resolution No. 2 and Section 4 of Republic
Act 4914 assuming these are to be considered as inconsistent with Sec. 4 of
Republic Act 6132.  This is the only
thought that consoles me.  Other­wise, I
would decry with all vehemence the fact that by the present resolution, this
Court is rendering ineffective and inoperative a solemn constituent resolution
of Congress, approved by three-fourths vote of the two Houses thereof voting
separately, without declaring it unconstitutional.  Likewise, this Court is virtually recognizing
the legal effect of the repeal of Republic Act 4914 by Section 22 of Republic
Act 6132 without passing on the question of whe­ther or not, Congress can, in
the exercise of its ordinary legislative powers, repeal what Congress as a
constituent body has provided as to matters related to a call for a
constitutional convention, considering that Section 4 of Republic Act 4914, is
nothing more or less than Section 3 of Constituent Resolution No. 2 and
logically, the repeal of said Section of Republic Act 4914 would amount to a
repeal of Section 3 of the constituent resolution, not to mention the fact
that, as I have stated earlier, there is that consensus we arrived at in the
deliberations of the Court on this matter, even with the somewhat different
view of Mr. Justice Fernando, and because of this, it would ap­pear that the
majority has swept aside that relevant con­sensus without even saying so, much
less justifying such a move, a practice which, I regret to say, is not vary com­mendable.

These are my personal feelings and opinions.  I propose to stand by them.  Nonetheless, if the Bench and the Bar and the
general public can understand and sanction the peculiar manner in which the
Court’s resolution has been evolved, as appears in the resolution itself and
the unexpressed premises I have heretofore mentioned, I am ready to reverse
myself.  Anyway, as I have stated, the
resulting decision would have been the same. 
All I am longing for is that the decision be more forthright than
equivocal, more factual than theoretical, and more illumi­nating as to the
meaning of the constitution and less timid in resolving the constitutional
issues that confront us.

In conclusion, my vote is to declare that Section 4 of Republic
Act 6132 is invalid because it is inconsis­tent with Section 3 of Constituent
Resolution 2, which should be given effect inasmuch as the Court has not
declared it unconstitutional, considering that by the con­sensus arrived at in
Our deliberations, Congress as a le­gislative body may not amend, alter or
repeal what Congress, as a constituent body, has approved in respect to matters
related to the calling of a constitutional convention.

As regards the attack against the second paragraph of Section
8(a) of Republic Act 6132, I concur with the majority.

^[1]
More on this anon.

^[2]
Actually, as will be explained later, the reason for the rather unusual
rationalization of the majority is that it has accepted the explanation given
by some legislative quarters that Section 3 of Resolution 2, was really
intended, like Resolution 3, to enable members of Congress, and not other
officers and employees of the Government to be Delegates.

^[3]
See further discussion at this point in the latter part of this opinion.

Clean
Clean

6 pt
6 pt
0
3

MicrosoftInternetExplorer4

/* Style Definitions */
table.MsoNormalTable
{mso-style-name:”Table Normal”;
mso-tstyle-rowband-size:0;
mso-tstyle-colband-size:0;
mso-style-noshow:yes;
mso-style-parent:””;
mso-padding-alt:0in 5.4pt 0in 5.4pt;
mso-para-margin:0in;
mso-para-margin-bottom:.0001pt;
mso-pagination:widow-orphan;
font-size:10.0pt;
font-family:”Times New Roman”;}