G.R. No. L-44640 - Concurring Opinions

G.R. No. L-44640, October 12, 1976,
♦ Decision, Martin, [J]
♦ Concurring Opinion, Castro, [CJ], Barredo, Makasiar, Antonio, Concepcion [JJ]
♦ Concurring & Dissenting Opinion, Fernando, Teehankee, Muñoz-Palma [JJ]

PABLO C. SANIDAD and PABLITO V. SANIDAD, petitioner,
vs.
HONORABLE COMMISSION ON ELECTIONS and HONORABLE NATIONAL TREASURER, respondents.

RAUL M. GONZALES, RAUL T. GONZALES, JR., and ALFREDO SALAPANTAN, petitioners,
vs.
HONORABLE COMMISSION ON SELECTIONS and HONORABLE NATIONAL TREASURER, respondents.

These three petitions, the latest in a series of cases starting from Planas v. Commission on Elections continuing with the epochal resolution in Javellana v. Executive Secretary and followed successively in three crucial decisions, Aquino v. Ponce Enrile Aquino v. Commission on Elections, and Aquino v Military Commission,5 manifest to the same degree the delicate and awesome character of the function of judicial review. While previous rulings supply guidance and enlightenment, care is to be taken to avoid doctrinaire rigidity unmindful of altered circumstances and the urgencies of the times. It is inappropriate to resolve the complex problems of a critical period without full awareness of the consequences that flow from whatever decision is reached. Jural norms must be read in the context of social facts, There is need therefore of adjusting inherited principles to new needs. For law, much more so constitutional law, is simultaneously a reflection of and a force in the society that it controls. No quality then can be more desirable in constitutional adjudication than that intellectual and imaginative insight which goes into the heart of the matter. The judiciary must survey things as they are in the light of what they must become It must inquire into the specific problem posed not only in terms of the teaching of the past but also of the emerging political and legal theory, especially so under a leadership notable for its innovative approach to social problems and the vigor of its implementation. This, on the one side. It must equally be borne in mind through that this Court must be conscious of the risk inherent in its being considered as a mere subservient instrument of government policy however admittedly salutary or desirable. There is still the need to demonstrate that the conclusion reached by it in cases appropriate for its determination has support in the law that must be applied. To my mind that was the norm followed, the conclusion reached being that the three petitions be dismissed. I am in agreement. It is with regret however that based on my reading of past decisions, both Philippine and American, and more specifically my concurring opinion in Aquino v. Ponce Enrile, I must dissent from the proposition set forth in the able and scholarly opinion of Justice Martin that there is concentration of power in the President during a crisis government. Consequently, I cannot see my way clear to accepting the view that the authority to propose amendments is not open to question. At the very least, serious doubts could be entertained on the matter.

1. With due respect then, I have to dissociate myself from my brethren who would rule that governmental powers in a crisis government, following Rossiter, "are more or less concentrated in the President." Adherence to my concurring and dissenting opinion in Aquino v. Ponce Enrile leaves me no choice.

It must be stated at the outset that with the sufficiency of doctrines supplied by our past decisions to point the way to what I did consider the appropriate response to the basic issue raised in the Aquino and the other habeas corpus petitions resolved jointly, it was only in the latter portion of my opinion that reference was made to United States Supreme Court pronouncements on martial law, at the most persuasive in character and rather few in number "due no doubt to the, absence in the American Constitution of any provision concerning it."7 It was understandable then that it was only after the landmark Ex parte Milligan case, that commentators like Cooley in 1868 and Watson in 1910 paid attention, minimal by that, to the subject." It was next set forth that in the works on American constitutional law published in this century specially after the leading cases of cases Sterling v. Constant in and Duncan v. Kahanamoku, "there was a fuller treatment of the question of martial law While it is the formulation of Willoughby that for me is most acceptable, my opinion did take note that another commentator, Burdick, came out earlier with a similar appraisal.10 Thus: "So called martial law, except in occupied territory of an enemy is merely the calling in of the aid of military forces by the executive, who is charged with the enforcement of the law, with or without special authorization by the legislature. Such declaration of martial law does not suspend the civil law, though it may interfere with the exercise of one's ordinary rights. The right to call out the military forces to maintain order and enforce the law is simply part of the Police power, It is only justified when it reasonably appears necessary, and only justifies such acts as reasonably appear necessarily to meet the exigency, including the arrest, or in extreme cases the. killing of those who create the disorder or oppose the authorities. When the exigency is over the members of the military forces are criminally and civilly habit for acts done beyond the scope of reasonable necessity. When honestly and reasonably coping with a situation of insurrection or riot a member of the military forces cannot be made liable for his acts, and persons reasonably arrested under such circumstances will not, during the insurrection or riot, be free by writ of habeas corpus."11 When the opinion cited Willoughby's concept of martial law, stress was laid on his being "Partial to the claims of liberty."12 This is evident in the explicit statement from his work quoted by me: "There is, then, strictly speaking, no such thing in American law as a declaration of martial law whereby military law is substituted for civil law. So-called declarations of martial law are, indeed, often made but their legal effect goes no further than to warn citizens that the military powers have been called upon by the executive to assist him in the maintenance of law and order, and that, while the emergency lasts, they must, upon pain of arrest and punishment not commit any acts which will in any way render more difficult the restoration of order and the enforcement of law. Some of the authorities stating substantially this doctrine are quoted in the footnote below Nor did I stop there. The words of Willis were likewise cited: "Martial law proper, that is, military law in case of insurrection, riots, and invasions, is not a substitute for the civil law, but is rather an aid to the execution of civil law. Declarations of martial law go no further than to warn citizens that the executive has called upon the military power to assist him in the maintenance of law and order. While martial law is in force, no new powers are given to the executive and no civil rights of the individual, other than the writ of habeas corpus, are suspended. The relations between the citizen and his stature unchanged."14

The conclusion reached by me as to the state of American federal law on the question of martial law was expressed thus: 4'1 It is readily evident that even when Milligan supplied the only authoritative doctrine, Burdick and Willoughby did not ignore the primacy of civil liberties. Willis wrote after Sterling. It would indeed be surprising if his opinion were otherwise. After Duncan, such an approach becomes even more strongly fortified. Schwartz, whose treatise is the latest to be published, has this summary of what he considers the present state of American law: 'The Milligan and Duncan cases show plainly that martial law is the public law of necessity. Necessities alone calls it forth, necessity justifies its exercise; and necessities measures the extended degree to which it may be It is, the high Court has affirmed, an unbending rule of law that the exercise of military power, where the rights of the citizen are concerned, may, never be pushed beyond what the exigency requires. If martial law rule survive the necessities on which alone it rests, for even a single minute it becomes a mere exercise of lawless violence.' Further: Sterling v. Constantin is of basic importance. Before it, a number of decisions, including one the highest Court, went or on the theory that the executive had a free hand in taking martial law measures. Under them, it has been widely supposed that in proclamation was so far conclusive that any action taken under it was immune from judicial scrutiny. Sterling v. Constantin definitely discredits these earlier decisions and the doctrine of conclusiveness derived from them. Under Sterling v. Constantin, where martial law measures impinge upon personal or property rights-normally beyond the scope of military power, whose intervention is lawful only because an abnormal Actuation has made it necessary the executive's ipse dixit is not of itself conclusive of the necessity.'"15

There was likewise an effort on my part to show what for me is the legal effect of martial law being expressly provided for in the Constitution rather than being solely predicated on the common law power based on the urgent need for it because of compelling circumstances incident to the state of actual clash of arms: "It is not to be lost sight of that the basis for the declaration of martial law in the Philippines is not mere necessity but an explicit constitutional provision. On the other hand, Milligan, which furnished the foundation for Sterling and Duncan had its roots in the English common law. There is pertinence therefore in ascertaining its significance under that system. According to the noted English author, Dicey: 'Martial law,' in the proper sense of that term, , in which - it means the suspension of ordinary law and the temporary government of a country or parts of it be military tribunals, is unknown to the law of England. We have nothing equivalent to what is called in France the "Declaration of the State of Siege," under which the authority ordinarily vested in the civil power for the maintenance of order and police passes entirely to the army (autorite militaire). This is an unmistakable proof of the permanent supremacy of the law under our constitution. There was this qualification: 'Martial law is sometimes employed as a name for the common law right of the Crown and its servants to repel force by force in the case of invasion, insurrection, riot, or generally of any violent resistance to the law. This right, or power, is essential to the very existence of orderly government, and is most assuredly recognized in the most ample manner by the law of England. It is a power which has in itself no special connection with the existence of an armed force. The Crown has the right to put down breaches of the peace. Every subject, whether a civilian or a soldier, whether what is called a servant of the government,' such for example as a policeman, or a person in no way connected with the administration, not only has the right, but is, as a matter of legal duty, bound to assist in putting down breaches of the peace. No doubt policemen or soldiers are the persons who, as being specially employed in the maintenance of order, are most generally called upon to suppress a riot, but it is clear that all loyal subjects are bound to take their part in the suppression of riots."16

Commitment to such an approach results in my inability to subscribe to the belief that martial law in terms of what is provided both in the 1935 and the present Constitution, affords sufficient justification for the concentration of powers in the Executive during periods of crisis. The better view, considering the juristic theory on which our fundamental law rests is that expressed by Justice Black in Duncan v. Kahanamoku: "Legislatures and courts are not merely cherished American institutions; they are indispensable to our government.17 If there has been no observance of such a cardinal concept at the present, it is due to the fact that before the former Congress could meet in regular session anew, the present Constitution was adopted, abolishing it and providing for an interim National Assembly, which has not been convened.18 So I did view the matter.

2. Nor did I ignore Rossiter in my Aquino v. Ponce Enrile opinion. Reference was made to the first chapter on his work on Constitutional Dictatorship where he spoke of martial rule as "a device designed for use in the crisis of invasion or rebellion. It may be most precisely defined as an extension of military government to the civilian population, the substitution of the will of a military commander for the will of the people's elected government."19 Since, for me at least, the Rossiter characterization of martial law has in it more of the common law connotation, less than duly mindful of the jural effects of its inclusion in the Constitution itself as a legitimate device for coping with emergency conditions in times of grave danger, but always subject to attendant limitations in accordance with the fundamental postulate of a charter's supremacy, I felt justified in concluding: "Happily for the Philippines, the declaration of martial law lends itself to the interpretation that the Burdick, Willoughby, Willis, Schwartz formulations paying due regard to the primacy of liberty possess relevance. lt cannot be said that the martial rule concept of Rossiter, latitudinarian in scope, has been adopted, even on the assumption that it can be reconciled with our Constitution. What is undeniable is that President Marcos has repeatedly maintained that Proclamation No. 1081 was precisely based on the Constitution and that the validity of acts taken there under could be passed upon by the Supreme court. For me that is quite reassuring, persuaded as I am likewise that the week- of Rossiter is opposed to the fundamental concept of our polity, which puts a premium on freedom."20

3. Candor and accuracy compel the admission that such a conclusion his to be qualified. For in the opinion of the Court in the aforecited Aquino v. Commission on Elections, penned by Justice Makasiar, the proposition was expressly affirmed "that as Commander-in-Chief and enforcer or administrator of martial law, the incumbent President of the Philippines can reclamations, orders and decrees during the period Martial Law essential to the security and preservation of the Republic, to the defense of the political and social liberties of the people and to the institution of reforms to prevent the resurgence of rebellion or insurrection or secession or the threat thereof as well as to meet the impact of a worldwide recession, inflation or economic crisis which presently threatens all nations including highly developed countries."21 To that extent, Rossiter's view mainly relied upon, now possesses Juristic significant in this jurisdiction. What, for me at least, gives caused for concern is that with the opinion of the Court this intrusion of what I would consider an alien element in the limited concept of martial law as set forth in the Constitution would be allowed further incursion into the corpus of the law, with the invocation of the view expressed in the last chapter of his work approving tile "concentration of governmental power in a democracy [as] a corrective to the crisis inefficiencies inherent in the doctrine of the separation of powers."22 It is to the credit of the late Professor Rossiter as an objective scholar that in the very same last chapter, just three pages later, he touched explicitly on the undesirable aspect of a constitutional dictatorship. Thus: "Constitutional Dictatorship is a dangerous thing. A declaration of martial law or the passage of an enabling act is a step which must always be feared and sometimes bitterly resisted, for it is at once an admission of the incapacity of democratic institutions to defend the order within which they function and a too conscious employment of powers and methods long ago outlawed as destructive of constitutional government. Executive legislation, state control of popular liberties, military courts, and arbitrary executive action were governmental features attacked by the men who fought for freedom not because they were inefficient or unsuccessful, but because they were dangerous and oppressive. The reinstitution of any of these features is a perilous matter, a step to be taken only when the dangers to a free state will be greater if the dictatorial institution is not adopted."23

4. It is by virtue of such considerations that I find myself unable to share the view of those of my brethren who would accord recognition to the Rossiter concept of concentration of governmental power in the Executive during periods of crisis. This is not to lose sight of the undeniable fact that in this country through the zeal, vigor, and energy lavished on projects conducive to the general welfare, considerable progress has been achieved under martial rule. A fair summary may be found in a recent address of the First Lady before the delegates to the 1976 international Monetary Fund-World Bank Joint Annual Meeting: "The wonder is that so much has been done in so brief a time. Since September 1972, when President Marcos established the crisis government, peace and order have been restored in a country once avoided as one of the most unsafe in the world. We have liberated millions of Filipino farmers from the bondage of tenancy, in the most vigorous and extensive implementation of agrarian reform."24 Further, she said: "A dynamic economy has replaced a stagnant order, and its rewards are distributed among the many, not hoarded by a few. Our foreign policy, once confined by fear and suspicion to a narrow alley of self-imposed isolation, now travels the broad expressways of friendship and constructive interaction with the whole world, these in a new spirit of confidence and self-reliance. And finally, forced to work out our own salvation, the Filipino has re-discovered the well-springs of his strength and resilience As Filipinos, we have found our true Identity. And having broken our crisis of Identity, we are no longer apologetic and afraid."25 The very Idea of a crisis, however, signifies a transitory, certainly not a permanent, state of things. President Marcos accordingly has not been hesitant in giving utterance to his conviction that full implementation of the modified parliamentary system under the present Constitution should not be further delayed. The full restoration of civilian rule can thus be expected. That is more in accord with the imperatives of a constitutional order. It should not go unnoticed either that the President has referred to the present regime as one of "constitutional authoritarianism." That has a less objectionable ring, authority being more Identified with the Idea of law, as based on right, the very antithesis of naked force, which to the popular mind is associated with dictatorship, even if referred to as "constitutional."

For me likewise, that equally eminent scholar Corwin, also invoked in the opinion of the Court, while no doubt a partisan of d strong Presidency, was not averse to constitutional restraints even during periods of crisis. So I would interpret this excerpt from the fourth edition of his classic treatise on the Presidency: "A regime of martial law may be compendiously, if not altogether accurately, defined as one in which the ordinary law, as administered by the ordinary courts, is superseded for the time being by the will of a military commander. It follows that, when martial law is instituted under national authority, it rests ultimately on the will of the President of the United States in his capacity as Commander-in-Chief. It should be added at once, nevertheless, that the subject is one in which the record of actual practice fails often to support the niceties of theory. Thus, the employment of the military arm in the enforcement of the civil law does not invariably, or even usually, involve martial law in the strict sense, for, as was noted in the preceding section, soldiers are often placed simply at the disposal and direction of the civil authorities as a kind of supplementary police, or posse comitatus on the other hand be reason of the discretion that the civil authorities themselves are apt to vest in the military in any emergency requiring its assistance, the line between such an employment of the military and a regime of martial law is frequently any but a hard and fast one. And partly because of these ambiguities the conception itself of martial law today bifurcates into two conceptions, one of which shades off into military government and the other into the situation just described, in which the civil authority remains theoretically in control although dependent on military aid. Finally, there is the situation that obtained throughout the North during the Civil War, when the privilege of the writ of habeas corpus was suspended as to certain classes of suspects, although other characteristics of martial law were generally absent."26

It is by virtue of the above considerations that, with due respect to the opinion of my brethren, I cannot yield assent to the Rossiter view of concentration of governmental powers in the Executive during martial law.

5 There is necessity then, for me at least, that the specific question raised in all three petitions be squarely faced. It is to the credit of the opinion of the Court that it did so. The basic issue posed concerns the boundaries of the power of the President during this period of martial law, more precisely whether it covers proposing amendments to the Constitution. There is the further qualification if the stand of respondents be taken into account that the interim National Assembly has not been convened and is not likely to be called into session in deference to the wishes of the people as expressed in three previous referenda. It is the ruling of the majority that the answer be in the affirmative, such authority being well within the area of presidential competence. Again I find myself unable to join readily in that conviction. It does seem to me that the metes and bounds of the executive domain, while still recognizable, do appear blurred. This is not to assert that there is absolutely no basis for such a conclusion, sustained as it is by a liberal construction of the principle that underlies Aquino v. Commission on Elections as to the validity of the exercise of the legislative prerogative by the President as long as the interim National Assembly is not For me, the stage of certitude has not been reached. I cannot simply ignore the vigorous plea of petitioners that there is a constitutional deficiency consisting in the absence of any constituent power on the part of the President, the express provision of the Constitution conferring it on the by team National Assembly.27 The learned advocacy reflected in the pleadings as well as the oral discourse of Solicitor General Estelito P. Mendoza 21 failed to erase the grave doubts in my mind that the Aquino doctrine as to the possession of legislative competence by the President during this period of transition with the interim lawmaking body not called into session be thus expanded. The majority of my brethren took that step. I am not prepared to go that far. I will explain why.

The way for me, is beset with obstacles. In the first place, such an approach would lose sight of the distinction between matters legislative and constituent. That is implicit in the treatise on the 1935 Constitution by Justices Malcolm and Laurel In their casebook published the same year, one of the four decisions on the subject of constitutional amendments is Ellingham v. Dye 31 which categorically distinguished between constituent and legislative powers. Dean Sinco, a well-known authority on the subject, was quite explicit. Thus: "If there had been no express provision in the Constitution granting Congress the power to propose amendments, it would be outside its authority to assume that power. Congress may not claim it under the general grant of legislative power for such grant does not carry with it the right 'to erect the state, institute the form of its government,' which is considered a function inherent in the people. Congressional law- making authority is limited to the power of approving the laws 'of civil conduct relating to the details and particulars of the government instituted,' the government established by the people."12 If that distinction be preserved, then for me the aforecited Aquino decision does not reach the heart of the matter. Nor is this all. In the main opinion of Justice Makasiar as well as that of the then Justice, now Chief Justice, Castro, support for the ruling that the President cannot be deemed as devoid of legislative power during this transition stage is supplied by implications from explicit constitutional provisions.13 That is not the case with the power to propose amendments. It is solely the interim National Assembly that is mentioned. That is the barrier that for me is well-nigh insurmountable. If I limit myself to entertaining doubts rather than registering a dissent on this point, it is solely because of the consideration, possessed of weight and significance, that there may be indeed in this far-from-quiescent and static period a need for al. amendments. I do not feel confident therefore that a negative vote on my part would be warranted. What would justify the step taken by the President, even if no complete acceptance be accorded to the view that he was a mere conduit of the barangays on this matter, is that as noted in both qualified concurrences by Justices Teehankee and Munoz Palma in Aquino, as far as the legislative and appropriately powers are concerned, is the necessity that unless such authority be recognized, there may be paralyzation of governmental activities, While not squarely applicable, such an approach has, to my mind, a persuasive quality as far as the power to propose amendments is concerned.

Thus I would confine myself to the expression of serious doubts on the question rather than a dissent.

6. The constitutional issue posed as thus viewed leaves me free to concur in the result that the petitions be dismissed. That is to accord respect to the principle that judicial review goes no further than to checking clear infractions of the fundamental law, except in the field of human rights where a much greater vigilance is required, That is to make of the Constitution a pathway to rather than a barrier against a desirable objective. -As shown by my concurring and dissenting opinion in Tolentino Commission on Elections '34 a pre-martial law decision, the fundamental postulate that sovereignty resides in the people exerts a compelling force requiring the judiciary to refrain as much as possible from denying the people the opportunity to make known their wishes on matters of the utmost import for the life of the nation, Constitutional amendments fall in that category. I am fortified in that conviction by the teaching of persuasive American decisions There is reinforcement to such a conclusion from retired Chief Justice Concepcion's concurring and dissenting opinion in Aytona v. Castillo,17 Which I consider applicable to the present situation. These are his words: "It is well settled that the granting of writs of prohibition and mandamus is ordinarily within the sound discretion of the courts, to be exercised on equitable principles, and that said writs should be issued when the right to the relief is clear * * by As he noted in his ponencia in the later case of Gonzales v. Hechanova,19 an action for prohibition, while petitioner was sustained in his stand, no injunction was issued. This was evident in the dispositive portion where judgment was rendered "declaring that respondent Executive Secretary had and has no power to authorize the importation in question; that he exceeded his jurisdiction in granting said authority; that said importation is not sanctioned by law and is contrary to its provisions; and that, for lack of the requisite majority, the injunction prayed for must be and is, accordingly, denied."40 With the illumination thus supplied, it does not necessarily follow that even a dissent on my part would necessarily compel that I vote for the relief prayed for. Certainly this is not to belittle in any way the action taken by petitioners in filing these suits. That, for me, is commendable. It attests to their belief in the rule of law. Even if their contention as to lack of presidential power be accepted in their entirety, however, there is still discretion that may be exercised on the matter, prohibition being an equitable remedy. There are, for me, potent considerations that argue against acceding to the plea. With the prospect of the interim National Assembly being convened being dim, if not non- existent, if only because of the results in three previous referenda, there would be no constitutional agency other than the Executive who could propose amendments, which, as noted. may urgently press for adoption. Of even greater weight, to my mind, is the pronouncement by the President that the plebiscite is intended not only to solve a constitutional anomaly with the country devoid of a legislative body but also to provide. the machinery be which the termination of martial law could be hastened. That is a consummation devoutly to be wished. That does militate strongly against the stand of petitioners. The obstruction they would pose may be fraught with pernicious consequences. It may not be amiss to refer anew to what I deem the cardinal character of the jural postulate explicitly affirmed in both the 1935 and the present Constitutions that sovereignty resides in the people. So I made clear in Tolentino v. Commission on Elections and thereafter in my dissent in Javellana v. The Executive Secretary" and my concurrence in Aquino v. Commission on Elections. 42 The destiny of the country lies in their keeping. The role of leadership is not to be minimized. It is crucial it is of the essence. Nonetheless, it is their will, if given expression in a manner sanctioned by law and with due care that there be no mistake in its appraisal, that should be controlling. There is all the more reason then to encourage their participation in the power process. That is to make the regime truly democratic. Constitutional orthodoxy requires, however, that the fundamental law be followed. So I would interpret Laski,43 Corwin,44 Lerner,45, Bryn-Jones,46 and McIver.47

7. There is reassurance in the thought that this Court has affirmed its commitment to the principle that the amending process gives rise to a justiciable rather than a political question. So, it has been since the leading case of Gonzales v. Commission on Election S.48 It has since then been followed in Tolentino v. Commission on Elections49 Planas v. Commission on Elections," and lastly, in Javellana v. The Executive Secretary This Court did not heed the vigorous plea of the Solicitor General to resurrect the political question doctrine announced in Mabanag v. Lopez Vito.52 This is not to deny that the federal rule in the United States as set forth in the leading case of Coleman v. Miller ,53 a 1939 decision, and relatively recent State court decisions, supply ammunition to such a contention.,51 That may be the case in the United States, but certainly not in this jurisdiction. Philippine constitutional tradition is to the contrary. It can trace its origin to these words in the valedictory address before the 1934-35 Constitutional Convention by the illustrious Claro M. Recto: "It is one of the paradoxes a democracy that the people of times place more confidence in instrumentalities of the State other than those directly chosen by them for the exercise of their sovereignty It can be said with truth, therefore, that there has invariably been a judicial predisposition to activism rather than self-restraint. The thinking all these years has been that it goes to the heart of constitutionalism. It may be said that this Court has shunned the role of a mere interpreter; it did exercise at times creative power. It has to that extent participated in the molding of policy, It has always recognized that in the large and undefined field of constitutional law, adjudication partakes of the quality of statecraft. The assumption has been that just because it cannot by itself guarantee the formation, much less the perpetuation of democratic values or, realistically, it cannot prevail against the pressure of political forces if they are bent in other directions. it does not follow that it should not contribute its thinking to the extent that it can. It has been asked, it will continue to be asked, to decide momentous questions at each critical stage of this nation's life.

There must be, however, this caveat. Judicial activism gives rise to difficulties in an era of transformation and change. A society in flux calls for dynamism in "he law, which must be responsive to the social forces at work. It cannot remain static. It must be sensitive to life. This Court then must avoid the rigidity of legal Ideas. It must resist the temptation of allowing in the wasteland of meaningless abstractions. It must face stubborn reality. It has to have a feel for the complexities of the times. This is not to discount the risk that it may be swept too far and too fast in the surge of novel concepts. The past too is entitled to a hearing; it cannot just be summarily ignored. History still has its uses. It is not for this Court to renounce the virtue of systematic jural consistency. It cannot simply yield to the sovereign sway of the accomplished fact. It must be deaf to the dissonant dialectic of what appears to be a splintered society. It should strive to be a factor for unity under a rule of law. There must be, on its part, awareness of the truth that a new juridical age born before its appointed time may be the cause of unprecedented travail that may not end at birth. It is by virtue of such considerations that I did strive for a confluence of principle and practicality. I must confess that I did approach the matter with some misgivings and certainly without any illusion of omniscience. I am comforted by the thought that immortality does not inhere in judicial opinions. 8. 1 am thus led by my studies on the subject of constitutional law and, much more so, by previous judicial opinions to concur in the dismissal of the petitions. If I gave expression to byes not currently fashionable, it is solely due to deeply-ingrained beliefs. Certainly, I am the first to recognize the worth of' the social and economic reforms so needed by the troubled present that have been introduced and implemented. There is no thought then of minimizing, much less of refusing to concede, the considerable progress that has been made and the benefits that have been achieved under this Administration. Again, to reiterate one of my cherished convictions, I certainly approve of the adherence to the fundamental principle of popular sovereignty which, to be meaningful however, requires both freedom in its manifestation and accuracy in ascertaining what it wills. Then, too, it is fitting and proper that a distinction was made between two aspects of the coming poll, the referendum and the plebiscite. It is only the latter that is impressed with authoritative force. So the Constitution requires. Lastly, there should be, as I did mention in my concurrence in Aquino v. Commission on Elections,56 full respect for free speech and press, free assembly and free association. There should be no thought of branding the opposition as the enemy and the expression of its views as anathema, Dissent, it is fortunate to note, has been encouraged. It has not been Identified with disloyalty. That ought to be the case, and not solely due to presidential decrees. Constructive criticism is to be welcomed not so much because of the right to be heard but because there may be something worth hearing. That is to ensure a true ferment of Ideas, an interplay of knowledgeable minds. There are though well- defined limits, One may not advocate disorder in the name of protest, much less preach rebellion under the cloak of dissent.. What I mean to stress is that except on a showing of clear and present danger, there must be respect for the traditional liberties that make a society truly free.

1. On the merits: I dissent from the majority's dismissal of the petitions for lack of merit and vote to grant the petitions for the following reasons and considerations:1. It is undisputed that neither the 1935 Constitution nor the 1973 Constitution grants to the incumbent President the constituent power to propose and approve amendments to the Constitution to be submitted to the people for ratification in a plebiscite. The 1935 Constitution expressly vests the constituent power in Congress, be a three-fourths vote of all its members, to propose amendments or call a constitutional convention for the purpose The 1973 Constitution expressly vests the constituent power in the regular National Assembly to propose amendments (by a three-fourths vote of all its members) or "call a constitutional convention" (by a two-thirds vote of all its members) or "submit the question of calling such convention to the electorate in an election" (by a majority vote of all its members ).2

The transitory provisions of the 1973 Constitution expressing vest the constituent power during the period of transition in the interim National Assembly "upon special call be the Prime Minister (the incumbent President 3)... by a majority ore of all its members (to) propose amendments."

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

2. The doctrine in the leading case of Tolentino vs. Comelec is controlling in the case at bar In therein declaring null and void the acts of the 1971 Constitutional Convention and of the Comelec in calling a plebiscite with the general elections scheduled for November 8, 1971 for the purpose of submitting for the people's ratification an advance amendment reducing the voting age from 21 years to 18 years, and issuing writs of prohibition and injunction against the holding of the plebiscite, this Court speaking through Mr. Justice Barredo ruled that --The Constitutional provisions on amendments "dealing with the procedure or manner of amending the fundamental law are binding upon the Convention and the other departments of the government, (land) are no less binding upon the people

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

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

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

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

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

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

This same apprehension was echoed by now retired Justice Calixto O. Zaldivar in his dissenting opinion in the Ratification cases14 that "we will be opening the gates for a similar disregard to the Constitution in the future. What I mean is that if this Court now declares that a new Constitution is now in force because the members of the citizens assemblies had approved said new Constitution, although that approval was not in accordance with the procedure and the requirements prescribed in the 1935 Constitution, it can happen again in some future time that some amendments to the Constitution may be adopted, even in a manner contrary to the existing Constitution and the law, and then said proposed amendments is submitted to the people in any manner and what will matter is that a basis is claimed that there was approval by the people. There will not be stability in our constitutional system, and necessarily no stability in our government."

6. It is not legally tenable for the majority, without overruling the controlling precedent of Tolentino (and without mustering the required majority vote to so overrule) to accept the proposed; amendments as valid notwithstanding their being "not in conformity with the letter, spirit and intent of the provision of the Charter for effecting amendments" on the reasoning that "If the President has been legitimately discharging the legislative functions of the interim National Assembly, there is no reason why he cannot validly discharge the functions."15

In the earlier leading case of Gonzales vs. Comelec16, this Court speaking through now retired Chief Justice Roberto Concepcion, pointer out that "Indeed, the power to Congress"17 or to the National Assembly.18 Where it not for the express grant in the Transitory Provisions of the constituent power to the interim National Assembly, the interim National Assembly could not claim the power under the general grant of legislative power during the transition period.

The majority's ruling in the Referendum cases19 that the Transitory Provision in section 3(2) recognized the existence of the authority to legislate in favor of the incumbent President during the period of martial law manifestly cannot be stretched to encompass the constituent power as expressly vested in the interim National Assembly in derogation of the allotment of powers defined in the Constitution.

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

As was aptly stated by Justice Jose P. Laurel in the 1936 landmak case of Angara vs. Electoral Commissioner21, "(T)he Constitution sets forth in no uncertain language and restrictions and limitations upon governmental powers and agencies. If these restrictions and limitations are transcended it would be inconceivable if the Constitution had not provided for a mechanism by which to direct the course of government along constitutional channels, for then the distribution of powers sentiment, and the principles of good government mere political apothegms. Certainly, the limitations and restrictions embodied in our Constitution are real as they should be in any living Constitution".

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

As stressed in the writer's separate opinion in the Referendum cases22, "(W)hile it has been advanced that the decision to defer the initial convocation of the interim National Assembly was supported by the results of the referendum in January, 1973 when the people voted against the convening of the interim National Assembly for at least seven years, such sentiment cannot be given any legal force and effect in the light of the State's admission at the hearing that such referendums are merely consultative and cannot amend the Constitution or Provisions which call for the 'immediate existence' and 'initial convening of the interim National Assembly to 'give priority to measures for the orderly transition from the presidential to the parliamentary system' and the other urgent measures enumerated in section 5 thereof".

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

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

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

8. If proposals for constitutional amendments are now deemed necessary to be discussed and adopted for submittal to the people, strict adherence with the mandatory requirements of the amending process as provided in the Constitution must be complied with. This means, under the teaching of Tolentino that the proposed amendments must validly come from the constitutional agency vested with the constituent power to do so, namely, the interim National Assembly, and not from the executive power as vested in the Prime Minister (the incumbent President) with the assistance of the Cabinet25 from whom such power has been withheld.

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

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

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

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

As Mr. Justice Fernando emphasized for this Court in Mutuc vs. Comelec29 in the setting as in of a Comelec resolution banning the use of political taped jingles by candidates for Constitutional Convention delegates int he special 1970 elections, "the concept of the Constitution as the fundamental law, setting forth the criterion for the validity of any public act whether proceeding from the highest official or the lowest functionary, is a postulate of our system of government. That is to amnifst fealty to the rule of law, with priority accorded to that which occupies the topmost rung in the legal heirarchy. The three departments of government in the discharge of the functions with which it is entrusted have no choice but to yield obedience to its commands. Whatever limits it imposes must be observed. Congress in the enactment of statutes must ever be on guart lest the restrictions on its authority, whether substantive or formal, be transcended. The Presidency in the execution of the laws cannot ignore of disregard what it ordains. In its task of applying the law to the facts as found in deciding cases, the judiciary is called upon the maintain inviolate what is decreed by the fundamental law."

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

As to the alleged costs involved in convening the interim National Assembly to propose amendments, among them its own abolition, (P24 million annually in salaries alone for its 400 members at P600,000.00 per annum per member, assuming that its deliberations could last for one year), suffice it to recall this Court's pronouncement in Tolentino (in reflecting a similar argument on the costs of holding a plebiscite separately from the general elections for elective officials) that "it is a matter of public knowledge that bigger amounts have been spent or thrown to waste for many lesser objectives. ... Surely, the amount of seventeen million pesos or even more is not too much a price to pay for fealty and loyalty to the Constitution ... "30 and that "while the financial costs of a separate plebiscite may be high, it can never be as much as the dangers involved in disregarding clear mandate of the Constitution, no matter how laudable the objective" and "no consideration of financial costs shall deter Us from adherence to the requirements of the Constitution".11

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

In the post-war Emergency Powers33*, former Chief Justice Ricardo Paras reaffirmed for the Court the principle that emergency in itself cannot and should not create power. In our democracy the hope and survival of the nation lie in the wisdom and unselfish patriotism of all officials and in their faithful 'Adherence to the Constitution".

The martial law clause of the 1973 Constitution found in Article IX, section12 , as stressed by the writer in his separate opinion in the Referendum Cases,14 "is a verbatim reproduction of Article VII, section 10 (2) of the 1935 Constitution and provides for the imposition of martial law only 'in case of invasion, resurrection or rebellion, or imminent danger thereof, when the public safety requires it and hence the use of the legislative power or more accurately 'military power' under martial rule is limited to such necessary measures as will safeguard the Republic and suppress the rebellion (or invasion)".35

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

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

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

Former Chief Justice Roberto Concepcion had observed before the elevation of the l971 Constitutional Convention that the records of past plebiscites show that the constitutional agency vested with the exercise of the constituent power (Congress or the Constitutional Convention) really determined the amendments to the Constitution since the proposals were invariably ratified by the people37 thus: "although the people have the reserved power to ratify or reject the action taken by the Convention, such power is not, in view of the circumstances attending its exercise, as effective as one might otherwise think: that, despite the requisite ratification by the people, the actual contents of our fundamental law will really be determined by the Convention; that, accordingly the people should exercise the greatest possible degree of circumspection in the election of delegates thereto ... "38

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

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

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

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

At the same time, the Court likewise adhered to the constitutional tenet that political questions, i.e. questions which are intended by the Constitutional and relevant laws to be conclusively determined by the "political", i.e. branches of government (namely, the Executive and the Legislative) are outside the Court's jurisdiction.41

Thus, in Gonzales,42 (by a unanimous Court) and in Tolentino43 (by the required constitutional majority), the Court has since consistently ruled that when proposing and approving amendments to the Constitution, the members of Congress. acting as a constituent assembly or the members of the Constitutional Convention elected directly for the purpose by not have the final say on whether or not their acts are within or beyond constitutional limits. Otherwise, they could brush aside and set the same at naught, contrary to the basic tenet that outs is it government of lawsom not of men, and to the rigid nature of our Constitution. Such rigidity is stressed by the fact that, the Constitution expressly confers upon the Supreme Court, the power to declare a treaty unconstitutional, despite the eminently political character of treaty-making power".44

As amplified by former Chief Justice Concepcion in Javellana vs Executive Secretary45 (by a majority vote), "when the grant of power is qualified, conditional or subject to limitations. the issue on whether or not the prescribed qualifications or conditions have been met, or the limitations by expected, is justiciable or non-political, the crux of the problem being one of legality or validity of the contested act, not its wisdom Otherwise, said qualifications, conditions and limitations-particularly those prescribed or imposed by the Constitution would be set at naught".

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

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

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

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

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

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

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

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

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

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

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

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

3. From the complex and complicated proposed amendments set forth in the challenged decree and the plethora of confused and confusing clarifications reported in the daily newspapers, it is manifest that there is no proper submission of the proposed amendments. Nine (9) proposed constitutional amendments were officially proposed and made known as per Presidential Decree No. 1033 dated, September 22, 1976 for submittal at the "referendum-plebiscite" called for this coming Saturday, October 16, 1976 wherein the 15-year and under 18-year- olds are enjoined to vote notwithstanding their lack of qualification under Article VI of the Constitution. Former Senator Arturo Tolentino, an acknowledged parliamentarian of the highest order, was reported by the newspapers last October 3 to have observed that "there is no urgency in approving the proposed amendments to the Constitution and suggested that the question regarding charter changes be modified instead of asking the people to vote on hurriedly prepared amendments". He further pointed out that "apart from lacking the parliamentary style in the body of the Constitution, they do not indicate what particular provisions are being repealed or amended".52

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

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

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

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

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

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

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

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

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

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

Under Amendment No. 8, there is a general statement in general that the unspecified provisions of the Constitution "not inconsistent with any of these amendments" shall continue in full force and effect; and Under Amendment No. 9. the incumbent President is authorized to proclaim the ratification of the amendments by the majority of votes cast. It has likewise been stressed by the officials concerned that the proposed amendments come in a package and may not be voted upon separately but on an "all or nothing" basis.

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

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

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

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

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

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

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

I concur fully with the remarkably frank (so characteristic of him) dissenting opinion of my distinguished colleague, Justice Claudio Teehankee. If I am writing this brief statement it is only to unburden myself of some thoughts which trouble my mind and leave my conscience with no rest nor peace.

Generally, one who dissents from a majority view of the Court takes a lonely and at times precarious road, the burden byeing lightened only by the thought that in this grave task of administering justice, when matters of conscience are at issue, one must be prepared to espouse and embrace a rightful cause however unpopular it may be.

1. That sovereignty resides in the people and all government authority emanates from them is a fundamental, basic principle of government which cannot be disputed, but when the people have opted to govern themselves under the mantle of a written Constitution, each and every citizen, from the highest to the lowliest, has the sacred duty to respect and obey the Character they have so ordained.

The afore-quoted passage from the eminent jurist and author Judge Cooley although based on declarations of law of more than a century ago, lays down a principle which to my mind is one of the enduring cornerstones of the Rule of Law. it is a principle with which I have been familiar as a student of law under the tutelage of revered Professors, Dr. Vicente G. Sinco and Justice Jose P. Laurel, and which I pray will prevail at all times to ensure the existence of a free, stable, and civilized society.

The Filipino people,. wanting to ensure to themselves a democratic republican form of government, have promulgated a Constitution whereby the power to govern themselves has been entrusted to and distributed among three branches of government; they have also mandated in clear and unmistakable terms the method by which provisions in their fundamental Charter may be amended or revised. Having done so, the people are bound by these constitutional limitations. For while there is no surrender or abdication of the people's ultimate authority to amend, revise, or adopt a new Constitution, sound reason demands that they keep themselves within the procedural bounds of the existing fundamental law. The right of the people to amend or change their Constitution if and when the need arises is not to be denied, but we assert that absent a revolutionary state or condition in the country the change must be accomplished through the ordinary, regular and legitimate processes provided for in the Constitution.'

I cannot subscribe therefore to the view taken by the Solicitor General that the people, being sovereign, have the authority to amend the Constitution even in a manner different from and contrary to that expressly provided for in that instrument, and that the amendatory process is intended more as a limitation of a power rather than a grant of power to a particular agency and it should not be construed as limiting the ultimate sovereign will of the people to decide on amendments to the Constitution .2 Such a view will seriously undermine the very existence of a constitutional government and will permit anarchy and/or mob rule to set afoot and prevail. Was it the Greek philosopher Plato who warned that the rule of the mob is a prelude to the rule of the tyrant?

I would use the following excerpt from Bernas, S.J. 'The 1973 Philippine Constitution, Notes and Cases" as relevant to my point:

Truly, what need is there for providing in the Constitution a process by which the fundamental law may be amended if, after all, the people by themselves can set the same at naught even in times of peace when civil authority reigns supreme? To go along with the respondents' theory in this regard is to render written Constitutions useless or mere "ropes of sand allowing for a government of men instead of one of laws. For it cannot be discounted that a situation may arise where the people are heralded to action at a point of a gun or by the fiery eloquence of a demagogue, and where passion overpowers reason, and mass action overthrows legal processes. History has recorded such instances, and I can think of no better example than that of Jesus Christ of Judea who was followed and loved by the people while curing the sick, making the lame walk and the blind see, but shortly was condemned by the same people turned into fanatic rabble crying out "Crucify Him, Crucify Him" upon being incited into action by chief priests and elders of Jerusalem. Yes, to quote once more from Judge Cooley:

2. Presidential Decrees Nos. 991 and 1033 which call for a national referendum-plebiscite on October 16, 1976 for the purpose, among other things, of amending certain provisions of the 1973 Constitution are null and void as they contravene the express provisions on the amending process of the 1973 Constitution laid down in Article XVI, Section 1 (1) and Article XVII, Section 15, more particularly the latter which applies during the present transition period. The Opinion of Justice Teehankee discusses in detail this particular matter.

I would just wish to stress the point that although at present there is no by tterint National Assembly which may propose amendments to the Constitution, the existence of a so-called "vacuum" or "hiatus" does not justify a transgression of the constitutional provisions on the manner of amending the fundamental law. We cannot cure one infirmity - the existence of a "vacuum" caused by the non-convening of the interim National Assembly - with another infirmity, that is, doing violence to the Charter.

Respondents contend that the calling of the referendum-plebiscite for the purpose indicated is a step necessary to restore the state of normalcy in the country. To my mind, the only possible measure that will lead our country and people to a condition of normalcy is the lifting or ending of the state of martial law. If I am constrained to make this statement it is because so much stress was given during the hearings of these cases on this particular point, leaving one with the impression that for petitioners to contest the holding of the October 16 referendum-plebiscite is for them to assume a position of blocking or installing the lifting of martial law, which I believe is unfair to the petitioners. Frankly, I cannot see the connection between the two. My esteemed colleagues should pardon me therefore if I had ventured to state that the simple solution to the simple solution to the present dilemma is the lifting of martial law and the implementation of the constitutional provisions which will usher in the parliamentary form of government ordained in the Constitution, which, as proclaimed in Proclamation 1102, the people themselves have ratified.

If the people have indeed ratified the 1973 Constitution, then they are bound by their act and cannot escape from the pretended unfavorable consequences thereof, the only y being to set in motion the constitutional machinery by which the supposed desired amendments may properly be adopted and submitted to the electorate for ratification. Constitutional processes are to be observed strictly, if we have to maintain and preserve the system of government decreed under the fundamental Charter. As said by Justice Enrique Fernando in Mutuc vs. Commission on Elections

A contrary view would lead to disastrous consequences for, in the words of Chief Justice Cox of the Supreme Court of Indiana in Ellingham v. Dye, (supra, p. 7) liberty and popular sovereignty are not meant to give rein to passion or thoughtless impulse but to allow the exercise of power by the people for the general good by tistlercoitaitt restraints of law.3 . The true question before Us is is one of power. Does the incumbent President of the Philippines possess constituent powers? Again, the negative answer is explained in detail in the dissenting opinion of Justice Teehankee.

Respondents would justify the incumbent President's exercise of constituent powers on theory that he is vested with legislative powers as held by this Court in Benigno S. Aquino, Jr., et al. vs. Commission on Elections, et al., L-40004, January 31, 1975. 1 wish to stress that although in my separate opinion in said case I agreed that Section 3 (2) of the Transitory provisions grants to the incumbent President legislative powers, I qualified my statement as follows:

I believe it is not disputed that legislative power is essentially different from constituent power; one does not encompass the other unless so specified in the Charter, and the 1973 Constitution contains provisions in this regard. This is well-explained in Justice Teehankee's Opinion. The state of necessity brought about by the current political situation, invoked by the respondents, provides no source of power to propose amendments to the existing Constitution. Must we "bend the Constitution to suit the law of the hour or cure its defects "by inflicting upon it a wound which nothing can heal commit one assault after the other "until all respect for the fundamental law is lost and the powers of government are just what those in authority please to call them?'"5 Or can we now ignore what this Court, speaking through Justice Barredo, said in Tolentino vs. Comelec:

Respondents emphatically assert that the final word is the people's word and that ultimately it is in the hands of the people where the final decision rests. (Comment, pp. 18, 19, 22) Granting in gratia argument that it is so, let it be an expression of the will of the people a normal political situation and not under the aegis of martial rule for as I have stated in Aquino vs. Comelec, et al., supra, a referendum (and now a plebiscite) held under a regime of martial law can be of no far reaching significance because it is being accomplished under an atmosphere or climate of fear as it entails a wide area of curtailment and infringement of individual rights, such as, human liberty, property rights, rights of free expression and assembly, protection against unreasonable searches and seizures, liberty of abode and of travel, and so on.

4. The other issues such as the sufficiency and proper submission of the proposed amendments for ratification by the people are expounded in Justice Teehankee's Opinion.ℒαwρhi৷ I wish to stress indeed that it is incorrect to state that the thrust of the proposed amendments is the abolition of the interim National Assembly and its substitution with an "interim Batasang Pambansa their in by in Proposed amendment No. 6 will permit or allow the concentration of power in one man - the Executive - Prime Minister or President or whatever you may call him - for it gives him expressly (which the 1973 Constitution or the 1935 Constitution does not) legislative powers even during the existence of the appropriate legislative body, dependent solely on the executive's judgment on the existence of a grave emergency or a threat or imminence thereof **

I must be forgiven if, not concerned with the present, I am haunted however by what can happen in the future, when we shall all be gone. Verily, this is a matter of grave concern which necessitates full, mature, sober deliberation of the people but which they can do only in a climate of freedom without the restraints of martial law. I close, remembering what Claro M. Recto, President of the Constitutional Convention which drafted the 1935 Philippine Constitution, once said: .

Jose P. Laurel who served his people as Justice of the Supreme Court of this country gave this reminder; the grave and perilous task of halting transgressions and vindicating cherished rights is reposed mainly oil the Judiciary and therefore let the Courts be the vestal keepers of the purity and sanctity of our Constitution.' On the basis of the foregoing, I vote to declare Presidential Decrees Nos. 991 and 1033 unconstitutional and enjoin the implementation thereof.