SAMUEL C. OCCENA, PETITIONER, VS. THE COMMISSION ON ELECTIONS, THE COMMISSION ON AUDIT, THE NATIONAL TREASURER, THE DIRECTOR OF PRINTING, RESPONDENTS.

The challenge in these two prohibition proceedings against the
validity of three Batasang Pambansa
Resolutions^[1]
proposing constitutional amendments, goes further than
merely assailing their alleged constitutional infirmity.  Petitioners Samuel Occena
and Ramon A. Gonzales, both members of the Philippine Bar and former delegates
to the 1971 Constitutional Convention that framed the present Constitution, are
suing as taxpayers.  The rather
unorthodox aspect of these petitions is the assertion that the 1973
Constitution is not the fundamental law, the Javellana^[2]
ruling to the contrary notwithstanding. 
To put it at its mildest, such an approach has the arresting charm of
novelty – but nothing else.  It is in
fact self defeating, for if such were indeed the case, petitioners have come to
the wrong forum.  We sit as a Court
duty-bound to uphold and apply that Constitution.  To contend otherwise as was done here would
be, quite clearly, an exercise in futility. 
Nor are the arguments of petitioners cast in the traditional form of constitutional
litigation any more persuasive.  For
reasons to be set forth, we dismiss the petitions.

The suits for prohibition were filed respectively on March 6^[3]
and March 12, 1981.^[4]
On March 10 and 13 respectively, respondents were required to answer each
within ten days from notice.^[5]
There was a comment on the part of the respondents.  Thereafter, both cases were set for hearing
and were duly argued on March 26 by petitioners and Solicitor General Estelito P. Mendoza for respondents.  With the submission of pertinent data in
amplification of the oral argument, the cases were deemed submitted for
decision.

It is the ruling of the Court, as set forth at the outset, that
the petitions must be dismissed.

1.     
It is much too late in the day to deny the force
and applicability of the 1973 Constitution. 
In the dispositive portion of Javellana v. The Executive Secretary,^[6]
dismissing petitions for prohibition and mandamus to declare invalid its
ratification, this Court stated that it did so by a vote of six^[7]
to four.^[8] It
then concluded:  “This being the
vote of the majority, there is no further judicial obstacle to the new
Constitution being considered in force and effect.”^[9]
Such a statement served a useful purpose. 
It could even be said that there was a need for it.  It served to clear the atmosphere.  It made manifest that as of January 17, 1973, the present
Constitution came into force and effect. 
With such a pronouncement by the Supreme Court and with the recognition
of the cardinal postulate that what the Supreme Court says is not only entitled
to respect but must also be obeyed, a factor for instability was removed.  Thereafter, as a matter of law, all doubts
were resolved.  The 1973 Constitution is
the fundamental law.  It is as simple as
that.  What cannot be too strongly
stressed is that the function of judicial review has both a positive and a
negative aspect.  As was so convincingly
demonstrated by Professors Black^[10]
and Murphy,^[11]
the Supreme Court can check as well as legitimate.  In declaring what the law is, it may not only
nullify the acts of coordinate branches but may also sustain their
validity.  In the latter case, there is
an affirmation that what was done cannot be stigmatized as constitutionally
deficient.  The mere dismissal of a suit
of this character suffices.  That is the
meaning of the concluding statement in Javellana.  Since then, this Court has invariably applied
the present Constitution.  The latest
case in point is People v. Sola,^[12]
promulgated barely two weeks ago.  During
the first year alone of the effectivity of the
present Constitution, at least ten cases may be cited.^[13]

2.     
We come to the crucial issue, the power of the Interim
Batasang Pambansa to
propose amendments and how it may be exercised. 
More specifically as to the latter, the extent of the changes that may
be introduced, the number of votes necessary for the validity of a proposal,
and the standard required for a proper submission.  As was stated earlier, petitioners were
unable to demonstrate that the challenged resolutions are tainted by
unconstitutionality.

(1)  
The existence of the power of the Interim
Batasang Pambansa is
indubitable.  The applicable provision in
the 1976 Amendments is quite explicit. 
Insofar as pertinent it reads thus: 
“The Interim Batasang Pambansa shall have the same powers and its Members shall
have the same functions, responsibilities, rights, privileges, and disqualifications
as the interim National Assembly and the regular National Assembly and
the Members thereof.”^[14]
One of such powers is precisely that of proposing amendments.  The 1973 Constitution in its Transitory
Provisions vested the Interim National Assembly with the power to propose
amendments upon special call by the Prime Minister by a vote of the majority of
its members to be ratified in accordance with the Article on Amendments.^[15]
When, therefore, the Interim Batasang Pambansa, upon the call of the President and Prime Minister
Ferdinand E. Marcos, met as a constituent body, it acted by virtue of such competence.  Its authority to do so is clearly beyond
doubt.  It could and did propose the
amendments embodied in the resolutions now being assailed.  It may be observed parenthetically that as
far as petitioner Occena is concerned, the question
of the authority of the Interim Batasang Pambansa to propose amendments is not new.  In Occena v.
Commission on Elections,^[16]
filed by the same petitioner, decided on January 28, 1980, such a question was involved although
not directly passed upon.  To quote from
the opinion of the Court penned by Justice Antonio in that case:  “Considering that the proposed amendment
to Section 7 of Article X of the Constitution extending the retirement of
members of the Supreme Court and judges of inferior courts from sixty-five (65)
to seventy (70) years is but a restoration of the age of retirement provided in
the 1935 Constitution and has been intensively and extensively discussed at the
Interim Batasang Pambansa,
as well as through the mass media, it cannot, therefore, be said that our
people are unaware of the advantages and disadvantages of the proposed
amendment.”^[17]

(2)  
Petitioners would urge upon us the proposition
that the amendments proposed are so extensive in character that they go far
beyond the limits of the authority conferred on the Interim Batasang Pambansa as successor of
the Interim National Assembly. 
For them, what was done was to revise and not to amend.  It suffices to quote from the opinion of
Justice Makasiar, speaking for the Court, in Del
Rosario v. Commission on Elections^[18]
to dispose of this contention.  Thus:  “3. 
And whether the Constitutional Convention will only propose amendments
to the Constitution or entirely overhaul the present Constitution and propose
an entirely new Constitution based on an ideology foreign to the democratic
system, is of no moment; because the same will be submitted to the people for
ratification.  Once ratified by the
sovereign people, there can be no debate about the validity of the new
Constitution.  4.  The fact that the present Constitution may be
revised and replaced with a new one * * * is no argument against the validity
of the law because ‘amendment’ includes the ‘revision’ or total overhaul of the
entire Constitution.  At any rate,
whether the Constitution is merely amended in part or revised or totally
changed would become immaterial the moment the same is ratified by the
sovereign people.”^[19]
There is here the adoption of the principle so
well-known in American decisions as well as legal texts that a constituent body
can propose anything but conclude nothing.^[20]
We are not disposed to deviate from such a principle not only sound in theory
but also advantageous in practice.

(3)  
That leaves only the questions of the vote
necessary to propose amendments as well as the standard for proper
submission.  Again, petitioners have not
made out a case that calls for a judgment in their favor.  The language of the Constitution supplies the
answer to the above questions.  The Interim
Batasang Pambansa, sitting
as a constituent body, can propose amendments. 
In that capacity, only a majority vote is needed.  It would be on indefensible proposition to
assert that the three-fourth votes required when it sits as a legislative body
applies as well when it has been convened as the agency through which amendments
could be proposed.  That is not a requirement
as far as a constitutional convention is concerned.  It is not a requirement either when, as in
this case, the Interim Batasang Pambansa exercises its constituent power to propose
amendments.  Moreover, even on the
assumption that the requirement of three-fourth votes applies, such
extraordinary majority was obtained.  It
is not disputed that Resolution No. 1 proposing an amendment allowing a
natural-born citizen of the Philippines naturalized in a foreign country to own
a limited area of land for residential purposes was approved by the vote of 122
to 5; Resolution No. 2 dealing with the Presidency, the Prime Minister and the
Cabinet, and the National Assembly by a vote of 147 to 5 with 1 abstention; and
Resolution No. 3 on the amendment to the Article on the Commission on Elections
by a vote of 148 to 2 with 1 abstention. 
Where then is the alleged infirmity? 
As to the requisite standard for a proper submission, the question may
be viewed not only from the standpoint of the period that must elapse before
the holding of the plebiscite but also from the standpoint of such amendments
having been called to the attention of the people so that it could not
plausibly be maintained that they were properly informed as to the proposed
changes.  As to the period, the
Constitution indicates the way the matter should be resolved.  There is no ambiguity to the applicable
provision:  “Any amendment to, or
revision of, this Constitution shall be valid when ratified by a majority of
the votes cast in a plebiscite which shall be held not later than three months
after the approval of such amendment or revision.”^[21]
The three resolutions were approved by the Interim Batasang
Pambansa sitting as a constituent assembly on
February 5 and 27, 1981.  In the Batasang Pambansa Blg. 22, the date of the plebiscite is set for April 7, 1981.  It is thus within the 90-day period provided
by the Constitution.  Thus any argument
to the contrary is unavailing.  As for
the people being adequately informed, it cannot be denied that this time, as in
the cited 1980 Occena opinion of Justice Antonio,
where the amendment restored to seventy the retirement age of members of the
judiciary, the proposed amendments have “been intensively and extensively
discussed at the Interim Batasang Pambansa, as well as through the mass media, [so that] it
cannot, therefore, be said that our people are unaware of the advantages and
disadvantages of the proposed amendment[s].”^[22]

WHEREFORE, the petitions are dismissed for lack of
merit.  No costs.

Barredo, Makasiar,
Aquino, Concepcion, Jr.,
Fernandez, Guerrero, De Castro, and Melencio-Herrera, JJ., concur.

Teehankee, J., dissents in a separate opinion.

Abad Santos, J., on official leave.

^[1] Resolution Nos. 28, 104 and 106 (1981).

^[2] Javellana v.
The Executive Secretary, L-36142, March 31, 1973, 50 SCRA 30.

^[3] L-56350, Samuel C. Occena v.
The Commission on Elections, The Commission on Audit,
The National Treasurer and the Director of Printing.

^[4] L-56404, Ramon A. Gonzales v. The
National Treasurer and the Commission on Elections.  The other co-petitioners are Manuel B. Imbong, Jo Aurea Marcos-Imbong, Ray Allan T. Drilon,
Nelson V. Malana and Gil M. Tabios.

^[5]
There was on March 24 an amended petition in Occena,
adopting the theory of petitioner Gonzales that the 1935 Constitution was once
again in force and effect.

^[6]
It should not be lost sight of that four other cases were decided in the joint
resolution of dismissal, dated March
31, 1973, Tan v. The Executive Secretary,
L-36164; Roxas v. Melchor,
L-36165; Monteclaro v. The Executive Secretary, L-36236; Dilag v.
The Honorable Executive Secretary, L-36283, all reported in 50 SCRA 30.

^[7]
The six votes came from Justices Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra.

^[8]
The four votes were cast by then Chief Justice Concepcion,
the late Justice Zaldivar, and Justice Teehankee as well as the writer of this opinion.

^[9] 50 SCRA at 141.  Concepcion, C.J., dissented from this
concluding statement.

^[10]
Black, The People and the Court 56-58 (1962).

^[11] Murphy,
Elements of Judicial Strategy 17-18 (1964).

^[12]
G.R. No. 56158-64, March 17, 1981.

^[13]
Cf. Garcia v. Domingo, L-30104, July 25, 1973, 52 SCRA 143; Buendia v. City of Baguio,
L-34011, July 25, 1973, 52 SCRA 155; Flores v. Flores, L-28930, August
17, 1973, 52 SCRA 293; Alfanta v. Nao, L-32362, September 19, 1973, 53 SCRA 76; People v.
Molina, L-30191, October 7, 1973, 53 SCRA 495; People v. Zamora,
L-34090, November 26, 1973, 54 SCRA 47; Republic v. Villasor,
L-30671, November 28, 1973, 54 SCRA 83; Paulo v. Court of Appeals,
L-33845, December 18, 1973, 54 SCRA 253; People v. Bacong,
L-36161, December 19, 1973, 54 SCRA 288 and Asian Surety and Insurance Co. v.
Herrera, L-25232, December 20, 1973, 54 SCRA 312.

It may be mentioned that the first
of such cases, Garcia, was promulgated on July 25, 1973 with the writer of this opinion as ponente and the next case, Buendia,
also on the same date, with Justice Teehankee as ponente, both of whom were dissenters in Javellana, but who felt bound to abide by the majority
decision.

^[14] 1976 Amendments, par. 2. 
The last sentence follows: 
“However, it shall not exercise the powers provided in Article
VIII, Section 14(1) of the Constitution.” Article VIII, Section 14, par.
(1) reads as follows: 
“Except as otherwise provided in this Constitution, no treaty shall
be valid and effective unless concurred in by a majority of all the Members of
the National Assembly.”

^[15]
Article XVII, Section 15 of the Constitution reads as follows:  “The interim National Assembly,
upon special call by the interim Prime Minister, may, by a majority vote
of all its Members, propose amendments to this Constitution.  Such amendments shall take effect when
ratified in accordance with Article Sixteen hereof.”

^[16] L-52265, 95 SCRA 755.

^[17] Ibid, 762.

^[18] L-32476, October 20, 1970, 35 SCRA 367.

^[19] Ibid,
369-370.

^[20] Cf. Ex parte Kerby, 205 P279
(1922).

^[21]
Article XVI, Section 2 of the Constitution.

^[22] L-52265, 95 SCRA 755, 762. 
The writer of this opinion, along with retired Chief Justice Concepcion and Justices Makalintal
and Bengzon, is committed to the view expressed in
the ponencia of the retired Chief Justice that
in the final analysis the question of proper submission reduces itself not as
to power, which is the concern of the judiciary, but as to wisdom, which
is entrusted to the constituent body proposing the amendments.  Gonzales v. Commission on Elections,
L-28196, November 9, 1967,
21 SCRA 774, 801.  The opposing view was
set forth by Justice Sanchez.

Clean
Clean

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