G.R. No.

L-1960

November 26, 1948

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FLORENTINO ABILONG, defendant-appellant. Carlos Perfecto for appellant. Assistant Solicitor General Ruperto Kapunan, Jr., and Solicitor Manuel Tomacruz for appellee. MONTEMAYOR, J.: Florentino Abilong was charged in the Court of First Instance of Manila with evasion of service of sentence under the following information: That on or about the 17th day of September, 1947, in the City of Manila, Philippines, the said accused, being then a convict sentenced and ordered to serve two (2) years, four (4) months and one (1) day of destierro during which he should not enter any place within the radius of 100 kilometers from the City of Manila, by virtue of final judgment rendered by the municipal court on April 5, 1946, in criminal case No. B-4795 for attempted robbery, did then and there wilfully, unlawfully and feloniously evade the service of said sentence by going beyond the limits made against him and commit vagrancy. Contrary to law. Upon arraignment he pleaded guilty and was sentenced to two (2) years, four (4) months and one (1) day ofprision correccional, with the accessory penalties of the law and to pay the costs. He is appealing from that decision with the following assignment of error: 1. The lower court erred in imposing a penalty on the accused under article 157 of the Revised Penal Code, which does not cover evasion of service of "destierro." Counsel for the appellant contends that a person like the accused evading a sentence of destierro is not criminally liable under the provisions of the Revised Penal Code, particularly article 157 of the said Code for the reason that said article 157 refers only to persons who are imprisoned in a penal institution and completely deprived of their liberty. He bases his contention on the word "imprisonment" used in the English text of said article which in part reads as follows: Evasion of service of sentence. The penalty of prision correccional in its medium and maximum periods shall be imposed upon any convict who shall evade service of his sentence by escaping during the term of his imprisonment by reason of final judgment. The Solicitor General in his brief says that had the original text of the Revised Penal Code been in the English language, then the theory of the appellant could be uphold. However, it is the Spanish text that is controlling in case of doubt. The Spanish text of article 157 in part reads thus: ART. 157. Quebrantamiento de sentencia. Sera castigado con prision correccional en sus grados medio y maximo el sentenciado que quebrantare su condena, fugandose mientras estuviere sufriendo privacion de libertad por sentencia firme; . . . . We agree with the Solicitor General that inasmuch as the Revised Penal Code was originally approved and enacted in Spanish, the Spanish text governs (People vs. Manaba, 58 Phil., 665,

668). It is clear that the word "imprisonment" used in the English text is a wrong or erroneous translation of the phrase "sufriendo privacion de libertad" used in the Spanish text. It is equally clear that although the Solicitor General impliedly admits destierro as not constituting imprisonment, it is a deprivation of liberty, though partial, in the sense that as in the present case, the appellant by his sentence of destierro was deprived of the liberty to enter the City of Manila. This view has been adopted in the case of People vs. Samonte, No. 36559 (July 26, 1932; 57 Phil., 968) wherein this Court held, as quoted in the brief of the Solicitor General that "it is clear that a person under sentence of destierro is suffering deprivation of his liberty and escapes from the restrictions of the penalty when he enters the prohibited area." Said ruling in that case was ratified by this Court, though, indirectly in the case of People vs. Jose de Jesus, (45 Off. Gaz. Supp. to No. 9, p. 370)1, where it was held that one evades the service of his sentence of destierrowhen he enters the prohibited area specified in the judgment of conviction, and he cannot invoke the provisions of the Indeterminate Sentence Law which provides that its provisions do not apply to those who shall have escaped from confinement or evaded sentence. In conclusion we find and hold that the appellant is guilty of evasion of service of sentence under article 157 of the Revised Penal Code (Spanish text), in that during the period of his sentence of destierro by virtue of final judgment wherein he was prohibited from entering the City of Manila, he entered said City. Finding no reversible error in the decision appealed from, the same is hereby affirmed with costs against the appellant. So ordered. Moran, C. J., Paras, Feria, Pablo, Bengzon and Tuason, JJ., concur.

Separate Opinions PERFECTO, J., dissenting: The legal question raised in this case is whether or not appellant, for having violated his judgment of destierrorendered by the Municipal Court of Manila, can be sentenced under article 157 of the Revised Penal Code which reads as follows: Evasion of service of sentence. The penalty of prision correccional in its medium and maximum periods shall be imposed upon any convict who shall evade service of his sentence by escaping during the term of his imprisonment by reason of final judgment. However, if such evasion or escape shall have taken place by means of unlawful entry, by breaking doors, windows, gates, walls, roofs, or floors, or by using picklocks, false keys, disguise, deceit, violence or intimidation, or through connivance with other convicts or employees of the penal institution, the penalty shall be prision correccional in its maximum period. Appellant invokes in his favor the negative opinion of author Guillermo Guevara (Revised Penal Code, 1946, p. 322). This negative position is supported by another author, Ambrosio Padilla (Revised Penal Code annotated, p. 474). The prosecution invokes the decision of this Court in People vs. De Jesus, L-1411,2promulgated April 16, 1948, but said decision has no application because in said case the legal question involved

in the case at bar was not raised. The Supreme Court did not consider the question of interpretation of the wording of article 157. Undoubtedly, there was occasion for considering the question, but the Court nevertheless failed to do so. This failure to see the question, at the time, is only an evidence that the tribunal is composed of human beings for whom infallibility is beyond reach. The prosecution maintains that appellant's contention, supported by two authors who have considered the question, although tenable under the English text of article 157, is not so under the Spanish text, which is the one controlling because the Revised Penal Code was originally enacted by the Legislature in Spanish. There is no quarrel, therefore, that under the above quoted English text, the appellant is entitled to acquittal. The question now is whether or not the Spanish text conveys a thing different from that which can be read in the English text. The Spanish text reads as follows: ART. 157. Quebrantamiento de sentencia. Sera castigado con prision correccional en sus grados medio y maximo el sentenciado que quebrantare su condena, fugandose mientras estuviere sufriendo privacion de libertad por sentencia firme; pero si la evasion o fuga se hubiere llevado a efecto con escalamiento, fractura de puertas, ventanas, verjas, paredes, techos o suelos, o empleado ganzuas, llaves falsas, disfraz, engano, violencia o intimidacion, o poniendose de acuerdo con otros sentenciados o dependientes del establecimiento donde a hallare recluido la pena sera prision correccional en su grado maximo. The question boils down to the words "fugandose mientras estuviere sufriendo privacion de libertad por sentencia firme," which are translated into English "by escaping during the term of his imprisonment by reason of final judgment." The prosecution contends that the words "privacion de libertad" in the Spanish text is not the same as the word "imprisonment" in the English text, and that while "imprisonment" cannot include destierro, "privacion de libertad" may include it. The reason is, however, the result of a partial point of view because it obliterates the grammatical, logical, ideological function of the words "fugandose" and "by escaping" in the Spanish and English texts, respectively. There should not be any question that, whatever meaning we may want to give to the words "privacion de libertad," it has to be conditioned by the verb "fugandose," (by escaping). "Privacion de libertad" cannot be considered independently of "fugandose." There seems to be no question that the Spanish "fugandose" is correctly translated into the English "by escaping." Now, is there any sense in escaping from destierro or banishment, where there is no enclosure binding the hypothetical fugitive? "Fugandose" is one of the forms of the Spanish verb "fugar," to escape. The specific idea of "evasion" or "escape" is reiterated by the use of said words after the semi-colon in the Spanish text and after the first period in the English text. Either the verb "to escape" or the substantive noun "escape" essentially pre-supposes some kind of imprisonment or confinement, except figuratively, and Article 157 does not talk in metaphors or parables. "To escape" means "to get away, as by flight or other conscious effort; to break away, get free, or get clear, from or out of detention, danger, discomfort, or the like; as to escape from prison. To issue from confinement or enclosure of any sort; as gas escapes from the mains." (Webster's New International Dictionary.) "Escape" means "act of escaping, or fact or having escaped; evasion of or deliverance from injury or any evil; also the means of escape. The unlawful departure of a prisoner from the limits of his custody. When the prisoner gets out of prison and unlawfully regains his liberty, it is an actual escape." (Webster's New International Dictionary.)

"Evasion" means "escape." (Webster's New International Dictionary.) . The "destierro" imposed on appellant banished him from Manila alone, and he was free to stay in all the remaining parts of the country, and to go and stay in any part of the globe outside the country. With freedom to move all over the world, it is farfetched to allege that he is in any confinement from which he could escape. The words "privacion de libertad" have been correctly translated into the English "imprisonment," which gives the idea exactly conveyed by "privacion de libertad" in the Spanish text. Undoubtedly, the drafters of the latter could have had used a more precise Spanish word, but the literary error cannot be taken as a pretext to give to the less precise words a broader meaning than is usually given to them. "Privacion de libertad," literally meaning "deprivation of liberty or freedom," has always been used by jurist using the Spanish language to mean "imprisonment." They have never given them the unbounded philosophical scope that would lead to irretrievable absurdities. Under that unlimited scope, no single individual in the more than two billion inhabitants of the world can be considered free, as the freest citizen of the freest country is subject to many limitations or deprivations of liberty. Under the prosecution's theory, should an accused, sentenced to pay a fine of one peso, evade the payment of it, because the fine deprives him of liberty to dispose of his one peso, he will be liable to be punished under article 157 of the Revised Penal Code to imprisonment of from more that two years to six years. The iniquity and cruelty of such situation are too glaring and violent to be entertained for a moment under our constitutional framework. There is no gainsaying the proposition that to allow the violation of a sentence of destierro without punishment is undesirable, but even without applying article 157 of the Revised Penal Code, the act of the appellant cannot remain unpunished, because his violation of the sentence of destierro may be punished as contempt of court, for which imprisonment up to six months is provided. It is deplorable that article 157 should not provide for a situation presented in this case, but the gap cannot be filled by this Court without encroaching upon the legislative powers of Congress. Perhaps it is better that evasions of sentence be punished, as provided by the old Penal Code, by an increased in the evaded penalty. This will be more reasonable that the penalties provided by article 157, which appear to be disproportionate and arbitrary, because they place on equal footing the evader of a sentence of one day of imprisonment and a life-termer, one who commits an insignificant offense and one who perpetrates the most heinous crime. At any rate, this is a problem for Congress to solve. The appealed decision should be set aside. BRIONES, J., concurring: I concur in the foregoing dissenting opinion, because evidently the word "fugandose" in the Spanish text refers to imprisonment, not to destierro.

G.R. No. L-13899

September 29, 1961

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PABLO BLAZA and FRANCISCO MANGULABNAN, defendants, FRANCISCO MANGULABNAN, defendant-appellant. Office of the Solicitor General for plaintiff-appellee. Manansala and Saturnino for defendant-appellant.

PADILLA, J.: In an amended information subscribed by the Provincial Fiscal and filed in the Court of First Instance of Laguna, Pablo Blaza alias Fernandez and Francisco Mangulabnan alias Ellen were charged with the crime of kidnapping Dorotea Fernandez, Fe Fernandez and Buenaventura Fernandez on 23 April 1953, for the purpose of extorting ransom from them, defined and penalized under the provisions of Article 267 of the Revised Penal Code, as amended by Republic Act No. 18 (crim. case No. SC-161). Their alleged confederates are those named defendants in crim. case No. SC-120 of the same Court, to wit: Lope Cunanan alias Perla, Ruperto Esquillo aliasesSergio and Alex, Raymundo Abesamis aliases Rading, Reddy, Mike, Manding, Uto, Ben, Pepe and North. 1 Upon arraignment the defendants Blaza and Mangulabnan, assisted by counsel de oficio, pleaded not guilty. On 5 November 1957 the defendant Mangulabnan by counsel de parte, Attorney Emilia C. Saturnino, filed a motion to quash the information against him, claiming that he is one of the defendants in crim. case No. 1940 of the Court of First Instance of Pampanga, People vs. Guillermo Paquinto, et al., for "the complex crime of Rebellion with Multiple Murders, Robberies, Arsons and Kidnapping," on 27 counts of atrocities allegedly committed on different dates in the provinces of Pampanga, Pangasinan, Bulacan, Nueva Ecija, Tarlac and Laguna (Exhibits 1 & 1-A); that in criminal case No. 15909 of the Court of First Instance of Laguna, People vs. Apolinar Oracion, et al.,for rebellion complexed with multiple murder, robbery, arson, rape and kidnapping, the kidnapping of Dorotea Fernandez, Fe Fernandez and Buenaventura Fernandez on 23 April 1957 (for which the defendant Mangulabnan was separately charged in crim. case No. SC-161) was for the purpose of raising funds for the HMB organization and a necessary means of committing the crime of rebellion (Annex B to motion to quash); that on 17 December 1956 the said court, rendering judgment in the latter case, held that "such act was in furtherance and a mere ingredient of the offense of rebellion" and "cannot be punished separately from the latter (rebellion) or complexed with it" (Annex C to motion to quash); and that the Supreme Court in the cases of People vs. Hernandez, 52 Off. Gaz. 5506; People vs. Geronimo, G.R. No. L-8936, 23 October 1956 and People vs. Togonon, G.R. No. L-8926, 29 June 1957, has held that "the crimes of murders, arsons, kidnappings, etc., when committed as a means to or in furtherance of the subversive ends, become absorbed in the crime of rebellion, and cannot be considered as giving rise to a separate crime;" and contending that the defendant Mangulabnan having been charged with the principal offense of rebellion in crim. case No. 1940 of the Court of First Instance of Pampanga is twice put in jeopardy of being punished for the same offense in crim. case No. SC-161 of the Court of First Instance of Laguna, prayed that the information in the latter case be quashed. After hearing, during which counsel de partefor the defendant Mangulabnan and the Provincial Fiscal appeared and orally argued in support of their motion and objection, on 5 November 1957 the Court denied the motion to quash and set the case for trial on 29 November 1957 at 9:00 o'clock in the morning. However, the Court cancelled the trial set for 29 November 1957 and reset it for trial on 12 December 1957 at the same time. On 11 December 1957 the defendant Mangulabnan filed a motion for reconsideration of

the order denying his motion to quash and on 12 December 1957 the Provincial Fiscal, an objection thereto. On the same day, 12 December 1957, the Court denied the motion for reconsideration and set the case for trial on 27 January 1958 at 9:00 o'clock in the morning. On 16 January 1958 the defendant Mangulabnan by counsel de parte filed a petition praying that the case be reset for trial on 25 February 1958 on the ground that a petition for certiorari testing the legality of the denial of the defendant's motion to quash would be filed in the Supreme Court after the needed amount for filing and attorney's fees shall have been raised by the defendant. On 22 January 1958 the defendant Blaza filed a motion praying for separate trial in view of the delay in the trial of the case due to several postponements at the behest of his co-defendant. On 23 January 1958 the Court denied Blaza's motion and reset the case for trial on 25 February 1958. On the day set for trial, 25 February 1958, the assistant provincial fiscal and counsel de parte for the defendant Blaza, Attorney Ariston Oblena, appeared but counsel de parte for the defendant Mangulabnan, Attorney Emilia C. Saturnino, did not appear despite previous notice. In view thereof the Court entered an order imposing upon the absent counsel a fine of P25, with subsidiary imprisonment in case of insolvency, appointing Attorney Tirso Caballero as counsel de oficio for the defendant Mangulabnan, who prayed that he be relieved from his appointment because he is related to the offended parties, setting the case for trial on 3, 4, 5, 6 and 7 March 1958 at 9:00 o'clock in the morning, and appointing Attorney Celso Cabalones, Leandro Rebong, Benjamin Agarao and Enrique Villanueva as counsel de oficio for the defendant Mangulabnan, should counsel de parte fail to appear on the first day of the trial. On 28 February 1958 counsel de parte for the defendant Mangulabnan filed a petition in the trial court explaining that her failure to attend the trial of the case on 25 February 1958 was due to a sudden indisposition that she felt of which there was no material time to notify the Court and prayed that she be excused for failure to attend the trial of the case on that date, and alleging that a petition for certiorari with preliminary injunction to be filed in the Supreme Court was being prepared to test the sufficiency and legality of the information filed against her client in criminal case No. SC-161 and that she had received subpoenas from the City Attorney of Quezon City, Courts of First Instance of San Pablo and Cabanatuan Cities and the City Fiscal of Manila to appear before them as counsel on 3, 4, 5 and 7 March 1958, prayed that the trial of the case be postponed indefinitely until the Supreme Court shall have decided her client's petition for certiorari with preliminary injunction. On 1 March 1958 the same counsel filed a motion for reconsideration of the order entered by the Court on 25 February 1958 imposing upon her a fine of P25, with subsidiary imprisonment in case of insolvency, reiterating the same reasons stated in her petition filed on 28 February 1958. On the date set for trial, 3 March 1958, counsel de parte for the defendant Mangulabnan did not appear. Whereupon the Court denied her motion for indefinite postponement of the trial of the case in behalf of her client and proceeded with the trial of the case, the defendants being assisted by their respective counsel de oficio. On the second day of the trial, 4 March 1958, counsel de parte for the defendant Mangulabnan appeared and prayed for indefinite suspension of the trial of the case against her client and reconsideration of the order imposing upon her a fine of P25. The Court denied the first part but granted the second part of her prayer and proceeded with the trial of the case. After hearing the testimony of the defendant Blaza and his witness Silverio Lintak, the Court entered an order setting the continuation of the trial of the case for 10 March 1958 at 9:00 o'clock in the morning.

After trial, on 14 March 1958 the Court rendered judgment, which was promulgated on 26 March 1958, finding the defendants guilty of the crime charged and sentencing them to suffer the penalty of reclusion perpetua,the accessory penalties provided by law, and to pay the costs. On 26 March 1958 the defendant Mangulabnan filed a notice of appeal. On 2 April the defendant Blaza filed a motion for reconsideration. On 8 April the Court denied his motion for reconsideration. On 10 April the defendant Blaza filed a notice of appeal. On 14 May his counsel de oficio filed a motion for withdrawal of his appeal. On 16 May 1958 the trial court approved the withdrawal of his appeal. This appeal is by the defendant Francisco Mangulabnan only. Dr. Zosimo Fernandez, his wife Dorotea, daughter Fe and cousin Buenaventura Fernandez, who was the chauffeur of the family, lived in the town of Pagsanjan, province of Laguna. At dinner time, about 7:00 o'clock in the evening of 23 April 1953, the Fernandez spouses heard a commotion and the barking of dogs in their yard and somebody knocking at the front door of the house. Dr. Fernandez asked Buenaventura to see what the commotion and barking of dogs were all about while Mrs. Fernandez peeped through an opening and saw people in army uniform. Buenaventura told the spouses that somebody who was trying to gain admission to the house wanted to see Dr. Fernandez at the behest of Captain Sebastian and that the house was surrounded by people in army uniform. Afterwards, they heard somebody knocking at the back door. Dr. Fernandez stood up, looked outside the window and asked what the man wanted. The latter answered that Captain Sebastian was sending for the doctor. The man's answer aroused Dr. Fernandez's suspicion that the visitor did not mean well because Captain Sebastian was residing in Cavinti. Dr. Fernandez slipped out of the house to ask aid and protection from the chief of police, who lived nearby, leaving behind his wife, daughter, cousin and maids. After Dr. Fernandez had left, the inmates of the house heard somebody persistently knocking at the door and trying to force it open. Mrs. Fernandez and her daughter Fe opened the kitchen door to escape but Lope Cunanan alias Captain Mendoza grabbed Fe by the hand. Cunanan went up the house and ordered Mrs. Fernandez, Fe and Buenaventura to go down with him. Downstairs, Mrs. Fernandez saw the companions of Lope Cunanan who were about 17 in number, armed with guns and revolvers, at the stairs of the house, in the backyard and surrounding area. The band forcibly took them along and made them wade through a knee-deep river and walk through coconut groves until they reached the outpost of the band in the mountains at about 3:00 o'clock the following morning. There the three victims were confined for two days guarded by the appellant, Pablo Blaza and their companions. After two days in the outpost of the band they were transferred to the inner part of the mountains where they stayed until they were released on 8 May 1953 after paying to their kidnappers a ransom of P40,000. Turning back to the night of the incident, 23 April 1953, when Dr. Fernandez returned to his house with some soldiers and policemen and found his wife, daughter and cousin gone, he went to the army headquarters but as he found nobody there, repaired to the old municipal building, to telephone and report on the incident to the army authorities in Camp Nazareth, Pila, Laguna, under the command of Coronel Friedlander. After searching the house, Dr. Fernandez's uncle found on a table inside the doctor's room a letter signed by Captain Mendoza stating that his wife, daughter and cousin were taken for the purpose of asking ransom from him. Days after Dr. Fernandez received about five or six letters signed by the same person asking for P100,000 ransom, for the release of the three victims, which amount was reduced to P80,000, P60,000 and finally to P40,000 through negotiations with the kidnappers.
1awphl.nt

On 8 May 1953, after the ransom was finally reduced to P40,000, Dr. Fernandez asked Dionisio Almario, his son Dionisio, Jr., Juan Abao, Conrado Velasco and one Ruperto to proceed to

barrio Anibong. There, as agreed upon, Ceferino Llamas and Eliseo Zafra delivered the money to Dionisio Almario and his companions which they divided and strapped on their respective bodies. At that juncture Ruperto, whom Dionisio Almario had earlier dispatched together with Juan Abao to the place where the kidnap victims had been confined, arrived and reported to him that he had been assured by the kidnappers that the victims were in safe hands. Ruperto led them to where the victims were. About half an hour after arrival in the mountains, the three victims were produced to Dionisio Almario and his companions by Lope Cunanan and his band numbering about twenty. Among those in the band was the appellant. Dionisio gave the money to Mrs. Fernandez which was counted by some of the members of the band of Lope Cunanan in his presence. After counting, Cunanan took P10,000, gave P6,000 each to Pablo Blaza and one Pepe and distributed P1,000 each to the remaining members of the band. The balance of P4,000 was set aside for expenses of the band. After waiting for 5:00 o'clock in the afternoon, Cunanan allowed them to leave. The victims and the rescue party arrived in town at about 6:30 o'clock in the evening. The appellant denies complicity in the commission of the crime imputed to him. He claims that he joined the Huk organization sometime in 1948 and was with Basilio Balbos alias Commander Maning now dead; that later on he joined the unit of Tomas Calma as his security guard; that from 1950 to 1951 Calma's unit operated in the Sierra Madre Mountains; that thereafter his unit was transferred to the mountains of Bulacan and Arayat; that during the entire year 1953 his unit operated in the vicinity of San Luis, Candaba and Arayat and never left the jurisdiction of Pampanga; that his unit never operated in the province of Laguna, particularly in Pagsanjan; that he was a member of the unit of Tomas Calma until 1954; that he knew Lope Cunanan alias Commander Perla even before he joined the Huk organization because they lived in the same barrio but that he was never associated with him; and that he came to know Apolinar Oracion only in 1956 when he was brought by the army authorities to Canlubang and confined in the stockade in connection with the Fernandez kidnapping case. The appellant's denial of complicity in the commission of the crime of kidnapping imputed to him and the members of the band of Lope Cunanan alias Captain Mendoza is ineffective in the face of the clear, direct and positive testimony of Mrs. Dorotea Fernandez, one of the victims, that he and his co-defendant Pablo Blaza were among those who stood guard over her, her daughter and cousin in-law; that she saw him with the band of kidnappers on the 23rd and 24th days of April 1953; and that he was present while the ransom money was being counted by the members of the band; and of Dionisio Almario that he saw the appellant with the band of kidnappers when the three victims were being led out from the mountains by the band on 8 May 1953 and that he was present when the ransom money was being counted by the band. The appellant assails the act of the trial court in proceeding with the trial of the case in the absence of his counsel de parte after appointing a counsel de oficio to assist him. Reviewing the various motions filed by his counsel de parte and the orders entered by the trial court thereon, we find that the appellant has no valid reason to complain. The motions for indefinite postponement of the trial of the case filed by his counsel de parte, on the ground that a petition for certiorari to test the legality of the denial of his motion to quash would be filed in the Supreme Court, but which was never filed, were plainly to delay the trial and disposition of the case. Despite receipt of notice his counsel de parte failed to appear on the first day of the trial (3 March 1958). On the second day (4 March 1958) she appeared but all that she did for her client was to reiterate his plea for indefinite suspension of the trial of the case and state that she "will just corroborate for the defense." On the third and last day (10 March 1958) she actively took part in the defense of the appellant, she herself conducting the direct examination of the appellant. The defendant was under detention and it is his constitutional right and the duty of the Court to have a speedy trial and disposition of the case. Moreover, it cannot be said that counsel de oficio who assisted the appellant in the absence of counsel de parte on the first day of the trial was remiss in the performance of his duties. As shown in

the transcript of stenographic notes, he had endeavored to safeguard the appellant's rights as a defendant on trial. As regards the appellant's complaint that he had no been afforded sufficient time to present other witnesses in his defense, it appears in the transcript of stenographic notes that after the appellant had finished testifying in his behalf, counsel de parte stated that she could not close the evidence for the defense because she wanted to secure the appearance of Apolinar Oracion as a witness. Asked by the Court what his testimony would be about, she answered "that (the) kidnapping for ransom was to secure funds for the functions of the organization." The Court denied the continuation of the trial of the case and ordered the trial closed because the testimony of Oracion would not be of any help to the appellant in view of his denial of complicity in the kidnapping of the victims. Hence, the appellant cannot validly complain and the Court did not err in its last mentioned order. Furthermore, the appellant claims to have known Apolinar Oracion only in 1956 or 1957 when he was brought to the stockade of the Second Military Area in Canlubang. The crime imputed to the appellant was committed on 23 April 1953. Therefore, whatever testimony Apolinar Oracion would give in evidence would not be of much value to the appellant's defense. The appellant raises the question of double jeopardy. He points out the fact that he had been charged with the complex crime of rebellion with multiple murder, robbery, arson and kidnapping in criminal case No. 1940 of the Court of First Instance of Pampanga (Annexes A and A-1, motion to quash); that on 8 January 1959, after pleading guilty to the crime of simple rebellion, the said Court sentenced him to suffer the penalty of one year and five months of prision correccional and to pay his proportionate share of the costs (Annex B to petition to withdraw as counsel); in criminal case No. 15909 of the Court of First Instance of Laguna, People vs. Apolinar Oracion, et al., for rebellion complexed with multiple murder, robbery, arson, rape and kidnapping, the kidnapping of Dorotea Fernandez, Fe Fernandez and Buenaventura Fernandez on 23 April 1957 was alleged to be for the purpose of raising funds for the HMB organization and a necessary means of committing the crime of rebellion (Annex B, motion to quash); and that on 17 December 1956, the said Court held that "such act was in furtherance and a mere ingredient of the offense of rebellion" and "cannot be punished separately from the latter (rebellion) or complexed with it" (Annex C, motion to quash). He now contends that the crime of kidnapping imputed to him being a necessary means of committing and in furtherance of the crime of rebellion, the said crime is absorbed by rebellion and that, having been convicted of simple rebellion, he is now put twice in jeopardy of punishment for the same offense. The appellant's contention is untenable. A reading of the information filed in criminal case No. 1940 of the Court of First Instance of Pampanga (Annexes A and A-1; motion to quash) shows that the kidnapping of Dorotea Fernandez, Fe Fernandez and Buenaventura Fernandez had never been mentioned as an overt act of rebellion and a scrutiny of the information filed in criminal case No. 15909 of the Court of First Instance of Laguna and the judgment rendered therein discloses no mention of the appellant as a defendant therein. The appellant, therefore, had never been put in jeopardy of punishment for the crime of rebellion and cannot maintain that he is being twice put in jeopardy of punishment for the same offense. In the instant case, the amended information filed in court against the appellant and his codefendant was for "kidnapping with ransom" under the provisions of article 267 of the Revised Penal Code, as amended by Republic Act No. 18. The information filed in the Court of First Instance of Laguna against Lope Cunanan, et al. (SC No. 120) was also for the same offense. On appeal by Raymundo Abesamis, this Court found "that the kidnapping was made by Huks under the command of Capt. Mendoza, or Lope Cunanan, and Abesamis admittedly belonged to the Huk detachment under such command." Nevertheless, this court affirmed the judgment of the Court of First Instance finding Raymundo Abesamis guilty of the crime of kidnapping for the purpose of extorting ransom and sentencing him to suffer the penalty of reclusion perpetua. The herein appellant cannot be entitled to a penalty lighter than that imposed upon his confederates.

The pronouncement of this Court in the case of People vs. Raymundo Abesamis, et al., G.R. No. L-13007, 23 December 1960, that the head of the band, Lope Cunanan, having been sentenced only to the penalty ofreclusion perpetua, the same penalty should be meted out to the appellant therein, despite the presence of the aggravating circumstances of nighttime, with the assistance of armed men, and band, is equally applicable to the herein appellant. The judgment appealed from is affirmed, with costs against the appellant. Bengzon, C.J., Labrador, Concepcion, Reyes, J.B.L., Paredes and De Leon, JJ., concur. Barrera and Dizon, JJ., took no part.

Javellana vs. The Executive Secretary The Facts: Sequence of events that lead to the filing of the Plebiscite then Ratification Cases. The Plebiscite Case On March 16, 1967, Congress of the Philippines passed Resolution No. 2, which was amended by Resolution No. 4 of said body, adopted on June 17, 1969, calling a Convention to propose amendments to the Constitution of the Philippines. Said Resolution No. 2, as amended, was implemented by Republic Act No. 6132, approved on August 24, 1970, pursuant to the provisions of which the election of delegates to the said Convention was held on November 10, 1970, and the 1971 Constitutional Convention began to perform its functions on June 1, 1971. While the Convention was in session on September 21, 1972, the President issued Proclamation No. 1081 placing the entire Philippines under Martial Law. On November 29, 1972, the Convention approved its Proposed Constitution of the Republic of the Philippines. The next day, November 30, 1972, the President of the Philippines issued Presidential Decree No. 73, "submitting to the Filipino people for ratification or rejection the Constitution of the Republic of the Philippines proposed by the 1971 Constitutional Convention, and appropriating funds therefor," as well as setting the plebiscite for said ratification or rejection of the Proposed Constitution on January 15, 1973. On December 7, 1972, Charito Planas filed a case against the Commission on Elections, the Treasurer of the Philippines and the Auditor General, to enjoin said "respondents or their agents from implementing Presidential Decree No. 73, in any manner, until further orders of the Court," upon the grounds, inter alia, that said Presidential Decree "has no force and effect as law because the calling ... of such plebiscite, the setting of guidelines for the conduct of the same, the prescription of the ballots to be used and the question to be answered by the voters, and the

appropriation of public funds for the purpose, are, by the Constitution, lodged exclusively in Congress ...," and "there is no proper submission to the people of said Proposed Constitution set for January 15, 1973, there being no freedom of speech, press and assembly, and there being no sufficient time to inform the people of the contents thereof." On December 17, 1972, the President had issued an order temporarily suspending the effects of Proclamation No. 1081, for the purpose of free and open debate on the Proposed Constitution. On December 23, the President announced the postponement of the plebiscite for the ratification or rejection of the Proposed Constitution. No formal action to this effect was taken until January 7, 1973, when General Order No. 20 was issued, directing "that the plebiscite scheduled to be held on January 15, 1978, be postponed until further notice." Said General Order No. 20, moreover, "suspended in the meantime" the "order of December 17, 1972, temporarily suspending the effects of Proclamation No. 1081 for purposes of free and open debate on the proposed Constitution." Because of these events relative to the postponement of the aforementioned plebiscite, the Court deemed it fit to refrain, for the time being, from deciding the aforementioned cases, for neither the date nor the conditions under which said plebiscite would be held were known or announced officially. Then, again, Congress was, pursuant to the 1935 Constitution, scheduled to meet in regular session on January 22, 1973, and since the main objection to Presidential Decree No. 73 was that the President does not have the legislative authority to call a plebiscite and appropriate funds therefor, which Congress unquestionably could do, particularly in view of the formal postponement of the plebiscite by the President reportedly after consultation with, among others, the leaders of Congress and the Commission on Elections the Court deemed it more imperative to defer its final action on these cases. "In the afternoon of January 12, 1973, the petitioners in Case G.R. No. L-35948 filed an "urgent motion," praying that said case be decided "as soon as possible, preferably not later than January 15, 1973." The next day, January 13, 1973, which was a Saturday, the Court issued a resolution requiring the respondents in said three (3) cases to comment on said "urgent motion" and "manifestation," "not later than Tuesday noon, January 16, 1973." Prior thereto, or on January 15, 1973, shortly before noon, the petitioners in said Case G.R. No. L-35948 riled a "supplemental motion for issuance of restraining order and inclusion of additional respondents," praying: "... that a restraining order be issued enjoining and restraining respondent Commission on Elections, as well as the Department of Local Governments and its head, Secretary Jose Roo; the Department of Agrarian Reforms and its head, Secretary Conrado Estrella; the National Ratification Coordinating Committee and its Chairman, Guillermo de Vega; their deputies, subordinates and substitutes, and all other officials and persons who may be assigned such task, from collecting, certifying, and announcing and reporting to the President or other officials concerned, the so-called Citizens' Assemblies referendum results allegedly obtained when they

were supposed to have met during the period comprised between January 10 and January 15, 1973, on the two questions quoted in paragraph 1 of this Supplemental Urgent Motion." On the same date January 15, 1973 the Court passed a resolution requiring the respondents in said case G.R. No. L-35948 to file "file an answer to the said motion not later than 4 P.M., Tuesday, January 16, 1973," and setting the motion for hearing "on January 17, 1973, at 9:30 a.m." While the case was being heard, on the date last mentioned, at noontime, the Secretary of Justice called on the writer of this opinion and said that, upon instructions of the President, he (the Secretary of Justice) was delivering to him (the writer) a copy of Proclamation No. 1102, which had just been signed by the President. Thereupon, the writer returned to the Session Hall and announced to the Court, the parties in G.R. No. L-35948 inasmuch as the hearing in connection therewith was still going on and the public there present that the President had, according to information conveyed by the Secretary of Justice, signed said Proclamation No. 1102, earlier that morning. Thereupon, the writer read Proclamation No. 1102 which is of the following tenor: ____________________________ "BY THE PRESIDENT OF THE PHILIPPINES "PROCLAMATION NO. 1102 "ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF THE CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL CONVENTION. "WHEREAS, the Constitution proposed by the nineteen hundred seventy-one Constitutional Convention is subject to ratification by the Filipino people; "WHEREAS, Citizens Assemblies were created in barrios, in municipalities and in districts/wards in chartered cities pursuant to Presidential Decree No. 86, dated December 31, 1972, composed of all persons who are residents of the barrio, district or ward for at least six months, fifteen years of age or over, citizens of the Philippines and who are registered in the list of Citizen Assembly members kept by the barrio, district or ward secretary; "WHEREAS, the said Citizens Assemblies were established precisely to broaden the base of citizen participation in the democratic process and to afford ample opportunity for the citizenry to express their views on important national issues; "WHEREAS, responding to the clamor of the people and pursuant to Presidential Decree No. 86-A, dated January 5, 1973, the following questions were posed before the Citizens Assemblies or Barangays: Do you approve of the New Constitution? Do you still want a plebiscite to be called to ratify the new Constitution? "WHEREAS, fourteen million nine hundred seventy-six thousand five hundred sixty-one (14,976,561) members of all the Barangays (Citizens Assemblies) voted for the adoption of the proposed Constitution, as against seven hundred forty-three thousand eight hundred sixty-nine (743,869) who voted for its rejection; while on the question as to whether or not the people would still like a plebiscite to be called to ratify the new Constitution, fourteen million two hundred ninety-eight thousand eight hundred fourteen (14,298,814) answered that there was no need for a plebiscite and that the vote of the Barangays (Citizens Assemblies) should be considered as a vote in a plebiscite; "WHEREAS, since the referendum results show that more than ninety-five (95) per cent of the

members of the Barangays (Citizens Assemblies) are in favor of the new Constitution, the Katipunan ng Mga Barangay has strongly recommended that the new Constitution should already be deemed ratified by the Filipino people; "NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers in me vested by the Constitution, do hereby certify and proclaim that the Constitution proposed by the nineteen hundred and seventy-one (1971) Constitutional Convention has been ratified by an overwhelming majority of all of the votes cast by the members of all the Barangays (Citizens Assemblies) throughout the Philippines, and has thereby come into effect. "IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the Republic of the Philippines to be affixed. "Done in the City of Manila, this 17th day of January, in the year of Our Lord, nineteen hundred and seventy-three. (Sgd.) FERDINAND E. MARCOS"President of the Philippines "By the President: "ALEJANDRO MELCHOR"Executive Secretary" _________________________________ The Ratification Case On January 20, 1973, Josue Javellana filed Case G.R. No. L-36142 against the Executive Secretary and the Secretaries of National Defense, Justice and Finance, to restrain said respondents "and their subordinates or agents from implementing any of the provisions of the propose Constitution not found in the present Constitution" referring to that of 1935. The petition therein, filed by Josue Javellana, as a "Filipino citizen, and a qualified and registered voter" and as "a class suit, for himself, and in behalf of all citizens and voters similarly situated," was amended on or about January 24, 1973. After reciting in substance the facts set forth in the decision in the plebiscite cases, Javellana alleged that the President had announced "the immediate implementation of the New Constitution, thru his Cabinet, respondents including," and that the latter "are acting without, or in excess of jurisdiction in implementing the said proposed Constitution" upon the ground: "that the President, as Commander-in-Chief of the Armed Forces of the Philippines, is without authority to create the Citizens Assemblies"; that the same "are without power to approve the proposed Constitution ..."; "that the President is without power to proclaim the ratification by the Filipino people of the proposed Constitution"; and "that the election held to ratify the proposed Constitution was not a free election, hence null and void." The Issue: 1. Is the issue of the validity of Proclamation No. 1102 a justiciable, or political and therefore non-justiciable, question? 2. Has the Constitution proposed by the 1971 Constitutional Convention been ratified validly (with substantial, if not strict, compliance) conformably to the applicable constitutional and statutory provisions?

3. Has the aforementioned proposed Constitution acquiesced in (with or without valid ratification) by the people? (acquiesced - "permission" given by silence or passiveness. Acceptance or agreement by keeping quiet or by not making objections.) 4. Are petitioners entitled to relief? 5. Is the aforementioned proposed Constitution in force? The Resolution: Summary: The court was severely divided on the following issues raised in the petition: but when the crucial question of whether the petitioners are entitled to relief, six members of the court (Justices Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra) voted to dismiss the petition. Concepcion, together Justices Zaldivar, Fernando and Teehankee, voted to grant the relief being sought, thus upholding the 1973 Constitution. Details: 1. Is the issue of the validity of Proclamation No. 1102 a justiciable, or political and therefore non-justiciable, question? On the first issue involving the political-question doctrine Justices Makalintal, Zaldivar, Castro, Fernando, Teehankee and myself, or six (6) members of the Court, hold that the issue of the validity of Proclamation No. 1102 presents a justiciable and non-political question. Justices Makalintal and Castro did not vote squarely on this question, but, only inferentially, in their discussion of the second question. Justice Barredo qualified his vote, stating that "inasmuch as it is claimed there has been approval by the people, the Court may inquire into the question of whether or not there has actually been such an approval, and, in the affirmative, the Court should keep hands-off out of respect to the people's will, but, in negative, the Court may determine from both factual and legal angles whether or not Article XV of the 1935 Constitution been complied with." Justices Makasiar, Antonio, Esguerra, or three (3) members of the Court hold that the issue is political and "beyond the ambit of judicial inquiry." 2. Has the Constitution proposed by the 1971 Constitutional Convention been ratified validly (with substantial, if not strict, compliance) conformably to the applicable constitutional and statutory provisions? On the second question of validity of the ratification, Justices Makalintal, Zaldivar, Castro, Fernando, Teehankee and myself, or six (6) members of the Court also hold that the Constitution proposed by the 1971 Constitutional Convention was not validly ratified in accordance with Article XV, section 1 of the 1935 Constitution, which provides only one way for ratification, i.e., "in an election or plebiscite held in accordance with law and participated in only by qualified and duly registered voters.

Justice Barredo qualified his vote, stating that "(A)s to whether or not the 1973 Constitution has been validly ratified pursuant to Article XV, I still maintain that in the light of traditional concepts regarding the meaning and intent of said Article, the referendum in the Citizens' Assemblies, specially in the manner the votes therein were cast, reported and canvassed, falls short of the requirements thereof. In view, however, of the fact that I have no means of refusing to recognize as a judge that factually there was voting and that the majority of the votes were for considering as approved the 1973 Constitution without the necessity of the usual form of plebiscite followed in past ratifications, I am constrained to hold that, in the political sense, if not in the orthodox legal sense, the people may be deemed to have cast their favorable votes in the belief that in doing so they did the part required of them by Article XV, hence, it may be said that in its political aspect, which is what counts most, after all, said Article has been substantially complied with, and, in effect, the 1973 Constitution has been constitutionally ratified." Justices Makasiar, Antonio and Esguerra, or three (3) members of the Court hold that under their view there has been in effect substantial compliance with the constitutional requirements for valid ratification. 3. Has the aforementioned proposed Constitution acquiesced in (with or without valid ratification) by the people? On the third question of acquiescence by the Filipino people in the aforementioned proposed Constitution, no majority vote has been reached by the Court. Four (4) of its members, namely, Justices Barredo, Makasiar, Antonio and Esguerra hold that "the people have already accepted the 1973 Constitution." Two (2) members of the Court, namely, Justice Zaldivar and myself hold that there can be no free expression, and there has even been no expression, by the people qualified to vote all over the Philippines, of their acceptance or repudiation of the proposed Constitution under Martial Law. Justice Fernando states that "(I)f it is conceded that the doctrine stated in some American decisions to the effect that independently of the validity of the ratification, a new Constitution once accepted acquiesced in by the people must be accorded recognition by the Court, I am not at this stage prepared to state that such doctrine calls for application in view of the shortness of time that has elapsed and the difficulty of ascertaining what is the mind of the people in the absence of the freedom of debate that is a concomitant feature of martial law." 88 Three (3) members of the Court express their lack of knowledge and/or competence to rule on the question. Justices Makalintal and Castro are joined by Justice Teehankee in their statement that "Under a regime of martial law, with the free expression of opinions through the usual media vehicle restricted, (they) have no means of knowing, to the point of judicial certainty, whether the people have accepted the Constitution." 4. Are petitioners entitled to relief? On the fourth question of relief, six (6) members of the Court, namely, Justices Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra voted to DISMISS the petition. Justice Makalintal and Castro so voted on the strength of their view that "(T)he effectivity of the said

Constitution, in the final analysis, is the basic and ultimate question posed by these cases to resolve which considerations other than judicial, an therefore beyond the competence of this Court, 90 are relevant and unavoidable." 91 Four (4) members of the Court, namely, Justices Zaldivar, Fernando, Teehankee and myself voted to deny respondents' motion to dismiss and to give due course to the petitions. 5. Is the aforementioned proposed Constitution in force? On the fifth question of whether the new Constitution of 1973 is in force: Four (4) members of the Court, namely, Justices Barredo, Makasiar, Antonio and Esguerra hold that it is in force by virtue of the people's acceptance thereof; Four (4) members of the Court, namely, Justices Makalintal, Castro, Fernando and Teehankee cast no vote thereon on the premise stated in their votes on the third question that they could not state with judicial certainty whether the people have accepted or not accepted the Constitution; and Two (2) members of the Court, namely, Justice Zaldivar and myself voted that the Constitution proposed by the 1971 Constitutional Convention is not in force; with the result that there are not enough votes to declare that the new Constitution is not in force. ACCORDINGLY, by virtue of the majority of six (6) votes of Justices Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra with the four (4) dissenting votes of the Chief Justice and Justices Zaldivar, Fernando and Teehankee, all the aforementioned cases are hereby dismissed. This being the vote of the majority, there is no further judicial obstacle to the new Constitution being considered in force and effect. It is so ordered.

ALFREDO M. DE LEON, ANGEL S. SALAMAT, MARIO C. STA. ANA, JOSE C. TOLENTINO, ROGELIO J. DE LA ROSA and JOSE M. RESURRECCION, petitioners, vs. HON. BENJAMIN B. ESGUERRA, in his capacity as OIC Governor of the Province of Rizal, HON. ROMEO C. DE LEON, in his capacity as OIC Mayor of the Municipality of Taytay, Rizal, FLORENTINO G. MAGNO, REMIGIO M. TIGAS, RICARDO Z. LACANIENTA, TEODORO V. MEDINA, ROSENDO S. PAZ, and TERESITA L. TOLENTINO, respondents.

MELENCIO-HERRERA, J.: An original action for Prohibition instituted by petitioners seeking to enjoin respondents from replacing them from their respective positions as Barangay Captain and Barangay Councilmen of Barangay Dolores, Municipality of Taytay, Province of Rizal. As required by the Court, respondents submitted their Comment on the Petition, and petitioner's their Reply to respondents' Comment.

In the Barangay elections held on May 17, 1982, petitioner Alfredo M. De Leon was elected Barangay Captain and the other petitioners Angel S. Salamat, Mario C. Sta. Ana, Jose C. Tolentino, Rogelio J. de la Rosa and Jose M. Resurreccion, as Barangay Councilmen of Barangay Dolores, Taytay, Rizal under Batas Pambansa Blg. 222, otherwise known as the Barangay Election Act of 1982. On February 9, 1987, petitioner Alfredo M, de Leon received a Memorandum antedated December 1, 1986 but signed by respondent OIC Governor Benjamin Esguerra on February 8, 1987 designating respondent Florentino G. Magno as Barangay Captain of Barangay Dolores, Taytay, Rizal. The designation made by the OIC Governor was "by authority of the Minister of Local Government." Also on February 8, 1987, respondent OIC Governor signed a Memorandum, antedated December 1, 1986 designating respondents Remigio M. Tigas, Ricardo Z. Lacanienta Teodoro V. Medina, Roberto S. Paz and Teresita L. Tolentino as members of the Barangay Council of the same Barangay and Municipality. That the Memoranda had been antedated is evidenced by the Affidavit of respondent OIC Governor, the pertinent portions of which read: xxx xxx xxx That I am the OIC Governor of Rizal having been appointed as such on March 20, 1986; That as being OIC Governor of the Province of Rizal and in the performance of my duties thereof, I among others, have signed as I did sign the unnumbered memorandum ordering the replacement of all the barangay officials of all the barangay(s) in the Municipality of Taytay, Rizal; That the above cited memorandum dated December 1, 1986 was signed by me personally on February 8,1987; That said memorandum was further deciminated (sic) to all concerned the following day, February 9. 1987. FURTHER AFFIANT SAYETH NONE. Pasig, Metro Manila, March 23, 1987. Before us now, petitioners pray that the subject Memoranda of February 8, 1987 be declared null and void and that respondents be prohibited from taking over their positions of Barangay Captain and Barangay Councilmen, respectively. Petitioners maintain that pursuant to Section 3 of the Barangay Election Act of 1982 (BP Blg. 222), their terms of office "shall be six (6) years which shall commence on June 7, 1982 and shall continue until their successors shall have elected and shall have qualified," or up to June 7, 1988. It is also their position that with the ratification of the 1987 Constitution, respondent OIC Governor no longer has the authority to replace them and to designate their successors. On the other hand, respondents rely on Section 2, Article III of the Provisional Constitution, promulgated on March 25, 1986, which provided:

SECTION 2. All elective and appointive officials and employees under the 1973 Constitution shall continue in office until otherwise provided by proclamation or executive order or upon the designation or appointment and qualification of their successors, if such appointment is made within a period of one year from February 25,1986. By reason of the foregoing provision, respondents contend that the terms of office of elective and appointive officials were abolished and that petitioners continued in office by virtue of the aforequoted provision and not because their term of six years had not yet expired; and that the provision in the Barangay Election Act fixing the term of office of Barangay officials to six (6) years must be deemed to have been repealed for being inconsistent with the aforequoted provision of the Provisional Constitution. Examining the said provision, there should be no question that petitioners, as elective officials under the 1973 Constitution, may continue in office but should vacate their positions upon the occurrence of any of the events mentioned. 1 Since the promulgation of the Provisional Constitution, there has been no proclamation or executive order terminating the term of elective Barangay officials. Thus, the issue for resolution is whether or not the designation of respondents to replace petitioners was validly made during the one-year period which ended on February 25, 1987. Considering the candid Affidavit of respondent OIC Governor, we hold that February 8, 1977, should be considered as the effective date of replacement and not December 1,1986 to which it was ante dated, in keeping with the dictates of justice. But while February 8, 1987 is ostensibly still within the one-year deadline, the aforequoted provision in the Provisional Constitution must be deemed to have been overtaken by Section 27, Article XVIII of the 1987 Constitution reading. SECTION 27. This Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite held for the purpose and shall supersede all previous Constitutions. The 1987 Constitution was ratified in a plebiscite on February 2, 1987. By that date, therefore, the Provisional Constitution must be deemed to have been superseded. Having become inoperative, respondent OIC Governor could no longer rely on Section 2, Article III, thereof to designate respondents to the elective positions occupied by petitioners. Petitioners must now be held to have acquired security of tenure specially considering that the Barangay Election Act of 1982 declares it "a policy of the State to guarantee and promote the autonomy of the barangays to ensure their fullest development as self-reliant communities. 2 Similarly, the 1987 Constitution ensures the autonomy of local governments and of political subdivisions of which the barangays form a part, 3 and limits the President's power to "general supervision" over local governments. 4 Relevantly, Section 8, Article X of the same 1987 Constitution further provides in part: Sec. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years ... Until the term of office of barangay officials has been determined by law, therefore, the term of office of six (6) years provided for in the Barangay Election Act of 1982 5 should still govern.

Contrary to the stand of respondents, we find nothing inconsistent between the term of six (6) years for elective Barangay officials and the 1987 Constitution, and the same should, therefore, be considered as still operative, pursuant to Section 3, Article XVIII of the 1987 Constitution, reading: Sec. 3. All existing laws, decrees, executive orders, proclamations letters of instructions, and other executive issuances not inconsistent, with this Constitution shall remain operative until amended, repealed or revoked. WHEREFORE, (1) The Memoranda issued by respondent OIC Governor on February 8, 1987 designating respondents as the Barangay Captain and Barangay Councilmen, respectively, of Barangay Dolores, Taytay, Rizal, are both declared to be of no legal force and effect; and (2) the Writ of Prohibition is granted enjoining respondents perpetually from proceeding with the ouster/take-over of petitioners' positions subject of this Petition. Without costs. SO ORDERED. Yap, Fernan, Narvasa, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin and Cortes, JJ., concur.

Separate Opinions

TEEHANKEE, CJ., concurring: The main issue resolved in the judgment at bar is whether the 1987 Constitution took effect on February 2, 1987, the date that the plebiscite for its ratification was held or whether it took effect on February 11, 1987, the date its ratification was proclaimed per Proclamation No. 58 of the President of the Philippines, Corazon C. Aquino. The Court's decision, with the lone dissent of Mr. Justice Sarmiento, holds that by virtue of the provision of Article XVIII, Section 27 of the 1987 Constitution that it "shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite held for the purpose," the 1987 Constitution took effect on February 2, 1987, the date of its ratification in the plebiscite held on that same date. The thrust of the dissent is that the Constitution should be deemed to "take effect on the date its ratification shall have been ascertained and not at the time the people cast their votes to approve or reject it." This view was actually proposed at the Constitutional Commission deliberations, but was withdrawn by its proponent in the face of the "overwhelming" contrary view that the Constitution "will be effective on the very day of the plebiscite." The record of the proceedings and debates of the Constitutional Commission fully supports the Court's judgment. It shows that the clear, unequivocal and express intent of the Constitutional Conunission in unanimously approving (by thirty-five votes in favor and none against) the aforequoted Section 27 of Transitory Article XVIII of the 1987 Constitution was that "the act of ratification is the act of voting by the people. So that is the date of the ratification" and that "the

canvass thereafter [of the votes] is merely the mathematical confirmation of what was done during the date of the plebiscite and the proclamation of the President is merely the official confirmatory declaration of an act which was actually done by the Filipino people in adopting the Constitution when they cast their votes on the date of the plebiscite." The record of the deliberations and the voting is reproduced hereinbelow: 1 MR. MAAMBONG. Madam President, may we now put to a vote the original formulation of the committee as indicated in Section 12, unless there are other commissioners who would like to present amendments. MR. DAVIDE. Madam President. THE PRESIDENT. Commissioner Davide is recognized. MR. DAVIDE. May I propose the following amendments. On line 2, delete the words "its ratification" and in lieu thereof insert the following-. "THE PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN RATIFIED." And on the last line, after "constitutions," add the following: "AND THEIR AMENDMENTS." MR. MAAMBONG. Just a moment, Madam President. If Commissioner Davide is going to propose an additional sentence, the committee would suggest that we take up first his amendment to the first sentence as originally formulated. We are now ready to comment on that proposed amendment. The proposed amendment would be to delete the words "its ratification and in lieu thereof insert the words "THE PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN RATIFIED." And the second amendment would be: After the word "constitutions," add the words" AND THEIR AMENDMENTS," The committee accepts the first proposed amendment. However, we regret that we cannot accept the second proposed amendment after the word "constitutions" because the committee feels that when we talk of all previous Constitutions, necessarily it includes "AND THEIR AMENDMENTS." MR. DAVIDE. With that explanation, l will not insist on the second. But, Madam President, may I request that I be allowed to read the second amendment so the Commission would be able to appreciate the change in the first. MR. MAAMBONG. Yes, Madam President, we can now do that. MR. DAVIDE. The second sentence will read: "THE PROCLAMATION SHALL BE MADE WITHIN FIVE DAYS FOLLOWING THE COMPLETION OF THE CANVASS BY THE COMMISSION ON ELECTIONS OF THE RESULTS OF SUCH PLEBISCITE." MR. MAAMBONG. Madam President, after conferring with our chairman, the committee feels that the second proposed amendment in the form of a new sentence would not be exactly necessary and the committee feels that it would be too much for

us to impose a time frame on the President to make the proclamation. As we would recall, Madam President, in the approved Article on the Executive, there is a provision which says that the President shall make certain that all laws shall be faithfully complied. When we approve this first sentence, and it says that there will be a proclamation by the President that the Constitution has been ratified, the President will naturally comply with the law in accordance with the provisions in the Article on the Executive which we have cited. It would be too much to impose on the President a time frame within which she will make that declaration. It would be assumed that the President would immediately do that after the results shall have been canvassed by the COMELEC. Therefore, the committee regrets that it cannot accept the second sentence which the Gentleman is proposing, Madam President. MR. DAVIDE. I am prepared to withdraw the same on the assumption that there will be an immediate proclamation of the results by the President. MR. MAAMBONG. With that understanding, Madam President. MR. DAVIDE. I will not insist on the second sentence. FR. BERNAS. Madam President. THE PRESIDENT. Commissioner Bernas is recognized. FR. BERNAS. I would ask the committee to reconsider its acceptance of the amendment which makes the effectivity of the new Constitution dependent upon the proclamation of the President. The effectivity of the Constitution should commence on the date of the ratification, not on the date of the proclamation of the President. What is confusing, I think, is what happened in 1976 when the amendments of 1976 were ratified. In that particular case, the reason the amendments of 1976 were effective upon the proclamation of the President was that the draft presented to the people said that the amendment will be effective upon the proclamation made by the President. I have a suspicion that was put in there precisely to give the President some kind of leeway on whether to announce the ratification or not. Therefore, we should not make this dependent on the action of the President since this will be a manifestation of the act of the people to be done under the supervision of the COMELECand it should be the COMELEC who should make the announcement that, in fact, the votes show that the Constitution was ratified and there should be no need to wait for any proclamation on the part of the President. MR. MAAMBONG. Would the Gentleman answer a few clarificatory questions? FR. BERNAS. Willingly, Madam President. MR. MAAMBONG. The Gentleman will agree that a date has to be fixed as to exactly when the Constitution is supposed to be ratified. FR. BERNAS. I would say that the ratification of the Constitution is on the date the votes were supposed to have been cast.

MR. MAAMBONG. Let us go to the mechanics of the whole thing, Madam President. We present the Constitution to a plebiscite, the people exercise their right to vote, then the votes are canvassed by the Commission on Elections. If we delete the suggested amendment which says: "THE PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN RATIFIED," what would be, in clear terms, the date when the Constitution is supposed to be ratified or not ratified, as the case may be? FR. BERNAS. The date would be the casting of the ballots. if the President were to say that the plebiscite would be held, for instance, on January 19, 1987, then the date for the effectivity of the new Constitution would be January 19, 1987. MR. MAAMBONG. In other words, it would not depend on the actual issuance of the results by the Commission on Elections which will be doing the canvass? That is immaterial Madam President FR. BERNAS. It would not, Madam President, because "ratification" is the act of saying "yes" is done when one casts his ballot. MR. MAAMBONG. So it is the date of the plebiscite itself, Madam President? FR. BERNAS. Yes, Madam President. MR. MAAMBONG. With that statement of Commissioner Bernas, we would like to know from the proponent, Commissioner Davide, if he is insisting on his amendment. MR. DAVIDE. Madam President, I am insisting on the amendment because I cannot subscribe to the view of Commissioner Bernas, that the date of the ratification is reckoned from the date of the casting of the ballots. That cannot be the date of reckoning because it is a plebiscite all over the country. We do not split the moment of casting by each of the voters. Actually and technically speaking, it would be all right if it would be upon the announcement of the results of the canvass conducted by the COMELEC or the results of the plebiscite held all over the country. But it is necessary that there be a body which will make the formal announcement of the results of the plebiscite. So it is either the President or the COMELEC itself upon the completion of the canvass of the results of the plebiscite, and I opted for the President. xxx xxx xxx MR. NOLLEDO. Madam President. THE PRESIDENT. Commissioner Nolledo is recognized. MR. NOLLEDO. Thank you, Madam President. I beg to disagree with Commissioner Davide. I support the stand of Commissioner Bernas because it is really the date of the casting of the "yes" votes that is the date of the ratification of the Constitution The announcement merely confirms the ratification even if the results are released two or three days after. I think it is a fundamental principle in political law, even in civil law, because an announcement is a mere confirmation The act of ratification is the act of voting by the people. So that is the date of the ratification. If there should be any

need for presidential proclamation, that proclamation will merely confirm the act of ratification. Thank you, Madam President. THE PRESIDENT. Does Commissioner Regalado want to contribute? MR. REGALADO. Madam President, I was precisely going to state the same support for Commissioner Bernas, because the canvass thereafter is merely the mathematical confirmation of what was done during the date of the plebiscite and the proclamation of the President is merely the official confirmatory declaration of an act which was actually done by the Filipino people in adopting the Constitution when they cast their votes on the date of the plebiscite. MR. LERUM. Madam President, may I be recognized. THE PRESIDENT. Commissioner Lerum is recognized. MR. LERUM. I am in favor of the Davide amendment because we have to fix a date for the effectivity of the Constitution. Suppose the announcement is delayed by, say, 10 days or a month, what happens to the obligations and rights that accrue upon the approval of the Constitution? So I think we must have a definite date. I am, therefore, in favor of the Davide amendment. MR. MAAMBONG. Madam President. THE PRESIDENT. Commissioner Maambong is recognized. MR. MAAMBONG. With the theory of the Commissioner, would there be a necessity for the Commission on Elections to declare the results of the canvass? FR. BERNAS. There would be because it is the Commission on Elections which makes the official announcement of the results. MR. MAAMBONG. My next question which is the final one is: After the Commision on Elections has declared the results of the canvass, will there be a necessity for the President to make a proclamation of the results of the canvass as submitted by the Commission on Elections? FR. BERNAS. I would say there would be no necessity, Madam President. MR. MAAMBONG. In other words, the President may or may not make the proclamation whether the Constitution has been ratified or not. FR. BERNAS. I would say that the proclamation made by the President would be immaterial because under the law, the administration of all election laws is under an independent Commission on Elections. It is the Commission on Elections which announces the results. MR. MAAMBONG. But nevertheless, the President may make the proclamation.

FR. BERNAS. Yes, the President may. And if what he says contradicts what the Commission on Elections says, it would have no effect. I would only add that when we say that the date of effectivity is on the day of the casting of the votes, what we mean is that the Constitution takes effect on every single minute and every single second of that day, because the Civil Code says a day has 24 hours.So that even if the votes are cast in the morning, the Constitution is really effective from the previous midnight. So that when we adopted the new rule on citizenship, the children of Filipino mothers or anybody born on the date of effectivity of the 1973 Constitution, which is January 17, 1973, are natural-born citizens, no matter what time of day or night. MR. MAAMBONG. Could we, therefore, safely say that whatever date is the publication of the results of the canvass by the COMELEC retroacts to the date of the plebiscite? FR. BERNAS. Yes, Madam President. MR. MAAMBONG. I thank the Commissioner. MR. GUINGONA. Madam President. THE PRESIDENT. Commissioner Guingona is recognized. MR. GUINGONA. Mention was made about the need for having a definite date. I think it is precisely the proposal of Commissioner Bernas which speaks of the date (of ratification that would have a definite date, because there would be no definite date if we depend upon the canvassing by the COMELEC. Thank you, THE PRESIDENT. Commissioner Concepcion is recognized. MR. CONCEPCION. Thank you, Madam President. Whoever makes the announcement as to the result of the plebiscite, be it the COMELEC or the President, would announce that a majority of the votes cast on a given date was in favor of the Constitution. And that is the date when the Constitution takes effect, apart from the fact that the provision on the drafting or amendment of the Constitution provides that a constitution becomes effective upon ratification by a majority of the votes cast, although I would not say from the very beginning of the date of election because as of that time it is impossible to determine whether there is a majority. At the end of the day of election or plebiscite, the determination is made as of that time-the majority of the votes cast in a plebiscite held on such and such a date. So that is the time when the new Constitution will be considered ratified and, therefore, effective. THE PRESIDENT. May we now hear Vice-President Padilla. MR. PADILLA. Madam President, I am against the proposed amendment of Commissioner Davide and I support the view of Commissioner Bernas and the

others because the ratification of the Constitution is on the date the people, by a majority vote, have cast their votes in favor of the Constitution. Even in civil law, if there is a contract, say, between an agent and a third person and that contract is confirmed or ratified by the principal, the validity does not begin on the date of ratification but it retroacts from the date the contract was executed. Therefore, the date of the Constitution as ratified should retroact to the date that the people have cast their affirmative votes in favor of the Constitution. MR. MAAMBONG. Madam President. THE PRESIDENT. Commissioner Maambong is recognized MR. MAAMBONG. We will now ask once more Commissioner Davide if he is insisting on his amendment MR. DAVIDE. In view of the explanation and overwhelming tyranny of the opinion that it will be effective on the very day of the plebiscite, I am withdrawing my amendment on the assumption that any of the following bodies the Office of the President or the COMELEC will make the formal announcement of the results. MR. RAMA. Madam President, we are now ready to vote on the original provision as stated by the committee. MR. MAAMBONG. The committee will read again the formulation indicated in the original committee report as Section 12. This Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite called for the purpose and shall supersede all previous Constitutions. We ask for a vote, Madam President. VOTING THE PRESIDENT. As many as are in favor, please raise their hand. (Several Members raised their hands.) As many as are against, please raise their hand. (No Member raised his hand.)
The results show 35 votes in favor and none against; Section 12 is approved.
2

The Court next holds as a consequence of its declaration at bar that the Constitution took effect on the date of its ratification in the plebiscite held on February 2, 1987, that: (1) the Provisional Constitution promulgated on March 25, 1986 must be deemed to have been superseded by the 1987 Constitution on the same date February 2, 1987 and (2) by and after said date, February 2, 1987, absent any saying clause to the contrary in the Transitory Article of the Constitution, respondent OIC Governor could no longer exercise the power to replace petitioners in their positions as Barangay Captain and Councilmen. Hence, the attempted replacement of petitioners by respondent OIC Governor's designation on February 8, 1987 of their successors could no longer produce any legal force and effect. While the Provisional Constitution provided for a one-year period expiring on March

25, 1987 within which the power of replacement could be exercised, this period was shortened by the ratification and effectivity on February 2, 1987 of the Constitution. Had the intention of the framers of the Constitution been otherwise, they would have so provided for in the Transitory Article, as indeed they provided for multifarious transitory provisions in twenty six sections of Article XVIII, e.g. extension of the six-year term of the incumbent President and Vice-President to noon of June 30, 1992 for purposes of synchronization of elections, the continued exercise of legislative powers by the incumbent President until the convening of the first Congress, etc. A final note of clarification, as to the statement in the dissent that "the appointments of some seven Court of Appeals Justices, 71 provincial fiscals and 55 city fiscals reported extended (by) the President on February 2, 1987 . . . could be open to serious questions," in view of the provisions of Sections 8 (1) and 9, Article VIII of the Constitution which require prior endorsement thereof by the Judicial and Bar Council created under the Constitution. It should be stated for the record that the reported date of the appointments, February 2, 1987, is incorrect. The official records of the Court show that the appointments of the seven Court of Appeals Justices were transmitted to this Court on February 1, 1987 and they were all appointed on or before January 31, 1987. 3(Similarly, the records of the Department of Justice likewise show that the appointment papers of the last batch of provincial and city fiscals signed by the President in completion of the reorganization of the prosecution service were made on January 31, 1987 and transmitted to the Department on February 1, 1987.) It is also a matter of record that since February 2, 1987, no appointments to the Judiciary have been extended by the President, pending the constitution of the Judicial and Bar Council, indicating that the Chief Executive has likewise considered February 2, 1987 as the effective date of the Constitution, as now expressly declared by the Court. CRUZ, J., concurring. In her quiet and restrained manner, Justice Herrera is able to prove her point with more telling effect than the tones of thunder. She has written another persuasive opinion, and I am delighted to concur. I note that it in effect affirms my dissents in the De la Serna, Zamora, Duquing and Bayas cases, where I submitted that the local OICs may no longer be summarily replaced, having acquired security of tenure under the new Constitution. Our difference is that whereas I would make that right commence on February 25, 1987, after the deadline set by the Freedom Constitution, Justice Herrera would opt for February 2, 1987, when the new Constitution was ratified. I yield to that better view and agree with her ponencia completely. SARMIENTO, J., Dissenting. With due respect to the majority I register this dissent. While I agree that the one-year deadline prescribed by Section 2, Article III of the Provisional Constitution with respect to the tenure of government functionaries, as follows: SECTION 2. All elective and appointive officials and employees under the 1973 Constitution shall continue in office until otherwise provided by proclamation or executive order or upon the designation or appointment and qualification of their successors, if such appointment is made within a period of one year from February 25, 1986. was cut short by the ratification of the 1987 Constitution, I entertain serious doubts whether or not that cut-off period began on February 2, 1987, the date of the plebiscite held to approve the new Charter. To my mind the 1987 constitution took effect on February 11, 1987, the date the same was

proclaimed ratified pursuant to Proclamation No. 58 of the President of the Philippines, and not February 2, 1987, plebiscite day. I rely, first and foremost, on the language of the 1987 Charter itself, thus: Sec. 27. This Constitution shag take effect immediately upon its ratification by a majority of the votes cast in a plebiscite held for the purpose and shall supersede all previous Constitutions. It is my reading of this provision that the Constitution takes effect on the date its ratification shall have been ascertained, and not at the time the people cast their votes to approve or reject it. For it cannot be logically said that Constitution was ratified during such a plebiscite, when the will of the people as of that time, had not, and could not have been, vet determined. Other than that, pragmatic considerations compel me to take the view. I have no doubt that between February 2, and February 11, 1987 the government performed acts that would have been valid under the Provisional Constitution but would otherwise have been void under the 1987 Charter. I recall, in particular, the appointments of some seven Court of Appeals Justices, 71 provincial fiscals, and 55 city fiscals the President reportedly extended on February 2, 1987. 1 Under Sections 8 (1) and 9, Article VIII, of the l987 Constitution, as follows: xxx xxx xxx Sec. 8. (I)A Judicial and Bar Council is hereby created under the supervision of the Supreme Court composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a representative of the Congress as ex oficio Members, a representative of the Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a representative of the private sector. xxx xxx xxx Sec. 9. The Members of the Supreme Court and judges of lower courts shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy, Such appointments need no confirmation. xxx xxx xxx such appointments could be open to serious questions. Since 1973, moreover, we have invariably reckoned the effectivity of the Constitution as well as the amendments thereto from the date it is proclaimed ratified. In Magtoto v. Manguera, 2 we held that the 1973 Constitution became in force and effect on January 17, 1973, the date Proclamation No. 1102, "Announcing the Ratification by the Filipino People of the Constitution Proposed by the 1971 Constitutional Convention," was issued, although Mr. Justice, now Chief Justice, Teehankee would push its effectivity date further to April 17, 1973, the date our decision in Javellana v. Executive Secretary, 3 became final. And this was so notwithstanding Section 16, Article XVII, of the 1973 Constitution, thus:

SEC. 16. This Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite called for the purpose and, except as herein provided, shall supersede the Constitution of nineteen-hundred and thirty- five and all amendments thereto. On October 27, 1976, then President Marcos promulgated Proclamation no. 1595, proclaiming the ratification of the 1976 amendments submitted in the plebiscite of October 16- 17, 1976. The Proclamation states, inter alia, that. By virtue-of the powers vested in me by law, I hereby proclaim all the amendments embodied in this certificate as duly ratified by the Filipino people in the referendum- plebiscite held Oct. 16-17, 1976 and are therefore effective and in full force and effect as of this date. It shall be noted that under Amendment No. 9 of the said 1976 amendments. These amendments shall take effect after the incumbent President shall have proclaimed that they have been ratified by a majority of the votes cast in the referendum-plebiscite. On April 1, 1980, the then Chief Executive issued Proclamation no. 1959, "Proclaiming the Ratification by the Filipino People of the Amendments of Section 7, Article X of the Constitution" (lengthening the terms of office of judges and justices). The Proclamation provides: [t]he above-quoted amendment has been duly ratified by a majority of the votes cast in the plebiscite held, together with the election for local officials, on January 30, 1980, and that said amendment is hereby declared to take effect immediately. It shall be noted that under Resolution No. 21, dated December 18, 1979, the proposed amendment shall take effect on the date the incumbent President/Prime Minister shall proclaim its ratification. On April 7, 1981, Proclamation No. 2077 was issued "Proclaiming the Ratification in the Plebiscite of April 7, 1981 of the Amendments to the Constitution Embodied in Batas Pambansa Blg. 122 and Declaring Them Therefore Effective and in Full Force and Effect." The Proclamation, in declaring the said amendments duly approved, further declared them "[e]ffective and in full force and in effect as of the date of this Proclamation," It shall be noted, in this connection, that under Resolutions Nos. I and 2 of the Batasang Pambansa, Third Regular Session, Sitting as a Constituent Assembly, which parented these amendments, the same: . . .shall become valid as part of the Constitution when approved by a majority of the votes cast in a plebiscite to be held pursuant to Section 2, Article XVI of the Constitution. On the other hand, Batas Pambansa Blg. 122, "An Act to Submit to the Filipino People, for Ratification or Rejection, the Amendment to the Constitution of the Philippines, Proposed by the Batasang Pambansa, Sitting as a Constituent Assembly, in its Resolutions Numbered Three, Two, and One, and to Appropriate Funds Therefore," provides, as follows: SEC. 7. The Commission on Elections, sitting en banc, shad canvass and proclaim the result of the plebiscite using the certificates submitted to it, duly authenticated and certified by the Board of Canvassers of each province or city.

We have, finally, Proclamation No. 2332, "Proclaiming the Ratification in the Plebiscite of January 27, 1984, of the Amendments to the Constitution Embodied in Batasang Pambansa Resolutions Nos. 104, 105, 110, 111, 112 and 113." It states that the amendments: ....are therefore effective and in full force and effect as of the date of this Proclamation. It carries out Resolution no. 104 itself (as well as Resolutions Nos. 110 and 112 and Section 9, Batas Blg. 643), which states, that: The proposed amendments shall take effect on the date the President of the Philippines shall proclaim that they have been ratified by a majority of the votes cast in the plebiscite held for the purpose, but not later than three months from the approval of the amendments. albeit Resolutions Nos. 105, 111, and 113 provide, that: These amendments shall be valid as a part of the Constitution when approved by a majority of the votes cast in an election/plebiscite at which it is submitted to the people for their ratification pursuant to Section 2 of Article XVI of the Constitution, as amended. That a Constitution or amendments thereto take effect upon proclamation of their ratification and not at the time of the plebiscite is a view that is not peculiar to the Marcos era. The Resolution of Both Houses (of Congress) in Joint Session on the March 11, 1947 plebiscite called pursuant to Republic Act No. 73 and the Resolution of Both Houses (of Congress) adopted on September 18, 1946, was adopted on April 9,1947. The April 9, 1947 Resolution makes no mention of a retroactive application. Accordingly, when the incumbent President (Mrs. Corazon C. Aquino) proclaimed on February 11, 1987, at Malacanang Palace:
... that the Constitution of the Republic of the Philippines adopted by the Constitutional Commission of 1986, including the Ordinance appended thereto, has been duly ratified by the Filipino people and is therefore effective and in full force and effect. 4

the 1987 Constitution, in point of fact, came into force and effect, I hold that it took effect at no other time. I submit that our ruling in Ponsica v. Ignalaga 5 in which we declared, in passing, that the new Charter was ratified on February 2, 1987, does not in any way weaken this dissent. As I stated, the remark was said in passing-we did not resolve the case on account of a categorical holding that the 1987 Constitution came to life on February 2, 1987. In any event, if we did, I now call for its reexamination. I am therefore of the opinion, consistent with the views expressed above, that the challenged dismissals done on February 8, 1987 were valid, the 1987 Constitution not being then as yet in force.

Separate Opinions TEEHANKEE, CJ., concurring: The main issue resolved in the judgment at bar is whether the 1987 Constitution took effect on February 2, 1987, the date that the plebiscite for its ratification was held or whether it took effect on February 11, 1987, the date its ratification was proclaimed per Proclamation No. 58 of the President of the Philippines, Corazon C. Aquino. The Court's decision, with the lone dissent of Mr. Justice Sarmiento, holds that by virtue of the provision of Article XVIII, Section 27 of the 1987 Constitution that it "shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite held for the purpose," the 1987 Constitution took effect on February 2, 1987, the date of its ratification in the plebiscite held on that same date. The thrust of the dissent is that the Constitution should be deemed to "take effect on the date its ratification shall have been ascertained and not at the time the people cast their votes to approve or reject it." This view was actually proposed at the Constitutional Commission deliberations, but was withdrawn by its proponent in the face of the "overwhelming" contrary view that the Constitution "will be effective on the very day of the plebiscite." The record of the proceedings and debates of the Constitutional Commission fully supports the Court's judgment. It shows that the clear, unequivocal and express intent of the Constitutional Conunission in unanimously approving (by thirty-five votes in favor and none against) the aforequoted Section 27 of Transitory Article XVIII of the 1987 Constitution was that "the act of ratification is the act of voting by the people. So that is the date of the ratification" and that "the canvass thereafter [of the votes] is merely the mathematical confirmation of what was done during the date of the plebiscite and the proclamation of the President is merely the official confirmatory declaration of an act which was actually done by the Filipino people in adopting the Constitution when they cast their votes on the date of the plebiscite." The record of the deliberations and the voting is reproduced hereinbelow: 1 MR. MAAMBONG. Madam President, may we now put to a vote the original formulation of the committee as indicated in Section 12, unless there are other commissioners who would like to present amendments. MR. DAVIDE. Madam President. THE PRESIDENT. Commissioner Davide is recognized. MR. DAVIDE. May I propose the following amendments. On line 2, delete the words "its ratification" and in lieu thereof insert the following-. "THE PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN RATIFIED." And on the last line, after "constitutions," add the following: "AND THEIR AMENDMENTS."

MR. MAAMBONG. Just a moment, Madam President. If Commissioner Davide is going to propose an additional sentence, the committee would suggest that we take up first his amendment to the first sentence as originally formulated. We are now ready to comment on that proposed amendment. The proposed amendment would be to delete the words "its ratification and in lieu thereof insert the words "THE PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN RATIFIED." And the second amendment would be: After the word "constitutions," add the words" AND THEIR AMENDMENTS," The committee accepts the first proposed amendment. However, we regret that we cannot accept the second proposed amendment after the word "constitutions" because the committee feels that when we talk of all previous Constitutions, necessarily it includes "AND THEIR AMENDMENTS." MR. DAVIDE. With that explanation, l will not insist on the second. But, Madam President, may I request that I be allowed to read the second amendment so the Commission would be able to appreciate the change in the first. MR. MAAMBONG. Yes, Madam President, we can now do that. MR. DAVIDE. The second sentence will read: "THE PROCLAMATION SHALL BE MADE WITHIN FIVE DAYS FOLLOWING THE COMPLETION OF THE CANVASS BY THE COMMISSION ON ELECTIONS OF THE RESULTS OF SUCH PLEBISCITE." MR. MAAMBONG. Madam President, after conferring with our chairman, the committee feels that the second proposed amendment in the form of a new sentence would not be exactly necessary and the committee feels that it would be too much for us to impose a time frame on the President to make the proclamation. As we would recall, Madam President, in the approved Article on the Executive, there is a provision which says that the President shall make certain that all laws shall be faithfully complied. When we approve this first sentence, and it says that there will be a proclamation by the President that the Constitution has been ratified, the President will naturally comply with the law in accordance with the provisions in the Article on the Executive which we have cited. It would be too much to impose on the President a time frame within which she will make that declaration. It would be assumed that the President would immediately do that after the results shall have been canvassed by the COMELEC. Therefore, the committee regrets that it cannot accept the second sentence which the Gentleman is proposing, Madam President. MR. DAVIDE. I am prepared to withdraw the same on the assumption that there will be an immediate proclamation of the results by the President. MR. MAAMBONG. With that understanding, Madam President. MR. DAVIDE. I will not insist on the second sentence. FR. BERNAS. Madam President.

THE PRESIDENT. Commissioner Bernas is recognized. FR. BERNAS. I would ask the committee to reconsider its acceptance of the amendment which makes the effectivity of the new Constitution dependent upon the proclamation of the President. The effectivity of the Constitution should commence on the date of the ratification, not on the date of the proclamation of the President. What is confusing, I think, is what happened in 1976 when the amendments of 1976 were ratified. In that particular case, the reason the amendments of 1976 were effective upon the proclamation of the President was that the draft presented to the people said that the amendment will be effective upon the proclamation made by the President. I have a suspicion that was put in there precisely to give the President some kind of leeway on whether to announce the ratification or not. Therefore, we should not make this dependent on the action of the President since this will be a manifestation of the act of the people to be done under the supervision of the COMELECand it should be the COMELEC who should make the announcement that, in fact, the votes show that the Constitution was ratified and there should be no need to wait for any proclamation on the part of the President. MR. MAAMBONG. Would the Gentleman answer a few clarificatory questions? FR. BERNAS. Willingly, Madam President. MR. MAAMBONG. The Gentleman will agree that a date has to be fixed as to exactly when the Constitution is supposed to be ratified. FR. BERNAS. I would say that the ratification of the Constitution is on the date the votes were supposed to have been cast. MR. MAAMBONG. Let us go to the mechanics of the whole thing, Madam President. We present the Constitution to a plebiscite, the people exercise their right to vote, then the votes are canvassed by the Commission on Elections. If we delete the suggested amendment which says: "THE PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN RATIFIED," what would be, in clear terms, the date when the Constitution is supposed to be ratified or not ratified, as the case may be? FR. BERNAS. The date would be the casting of the ballots. if the President were to say that the plebiscite would be held, for instance, on January 19, 1987, then the date for the effectivity of the new Constitution would be January 19, 1987. MR. MAAMBONG. In other words, it would not depend on the actual issuance of the results by the Commission on Elections which will be doing the canvass? That is immaterial Madam President FR. BERNAS. It would not, Madam President, because "ratification" is the act of saying "yes" is done when one casts his ballot. MR. MAAMBONG. So it is the date of the plebiscite itself, Madam President? FR. BERNAS. Yes, Madam President.

MR. MAAMBONG. With that statement of Commissioner Bernas, we would like to know from the proponent, Commissioner Davide, if he is insisting on his amendment. MR. DAVIDE. Madam President, I am insisting on the amendment because I cannot subscribe to the view of Commissioner Bernas, that the date of the ratification is reckoned from the date of the casting of the ballots. That cannot be the date of reckoning because it is a plebiscite all over the country. We do not split the moment of casting by each of the voters. Actually and technically speaking, it would be all right if it would be upon the announcement of the results of the canvass conducted by the COMELEC or the results of the plebiscite held all over the country. But it is necessary that there be a body which will make the formal announcement of the results of the plebiscite. So it is either the President or the COMELEC itself upon the completion of the canvass of the results of the plebiscite, and I opted for the President. xxx xxx xxx MR. NOLLEDO. Madam President. THE PRESIDENT. Commissioner Nolledo is recognized. MR. NOLLEDO. Thank you, Madam President. I beg to disagree with Commissioner Davide. I support the stand of Commissioner Bernas because it is really the date of the casting of the "yes" votes that is the date of the ratification of the Constitution The announcement merely confirms the ratification even if the results are released two or three days after. I think it is a fundamental principle in political law, even in civil law, because an announcement is a mere confirmation The act of ratification is the act of voting by the people. So that is the date of the ratification. If there should be any need for presidential proclamation, that proclamation will merely confirm the act of ratification. Thank you, Madam President. THE PRESIDENT. Does Commissioner Regalado want to contribute? MR. REGALADO. Madam President, I was precisely going to state the same support for Commissioner Bernas, because the canvass thereafter is merely the mathematical confirmation of what was done during the date of the plebiscite and the proclamation of the President is merely the official confirmatory declaration of an act which was actually done by the Filipino people in adopting the Constitution when they cast their votes on the date of the plebiscite. MR. LERUM. Madam President, may I be recognized. THE PRESIDENT. Commissioner Lerum is recognized. MR. LERUM. I am in favor of the Davide amendment because we have to fix a date for the effectivity of the Constitution. Suppose the announcement is delayed by, say, 10 days or a month, what happens to the obligations and rights that accrue upon the approval of the Constitution? So I think we must have a definite date. I am, therefore, in favor of the Davide amendment.

MR. MAAMBONG. Madam President. THE PRESIDENT. Commissioner Maambong is recognized. MR. MAAMBONG. With the theory of the Commissioner, would there be a necessity for the Commission on Elections to declare the results of the canvass? FR. BERNAS. There would be because it is the Commission on Elections which makes the official announcement of the results. MR. MAAMBONG. My next question which is the final one is: After the Commision on Elections has declared the results of the canvass, will there be a necessity for the President to make a proclamation of the results of the canvass as submitted by the Commission on Elections? FR. BERNAS. I would say there would be no necessity, Madam President. MR. MAAMBONG. In other words, the President may or may not make the proclamation whether the Constitution has been ratified or not. FR. BERNAS. I would say that the proclamation made by the President would be immaterial because under the law, the administration of all election laws is under an independent Commission on Elections. It is the Commission on Elections which announces the results. MR. MAAMBONG. But nevertheless, the President may make the proclamation. FR. BERNAS. Yes, the President may. And if what he says contradicts what the Commission on Elections says, it would have no effect. I would only add that when we say that the date of effectivity is on the day of the casting of the votes, what we mean is that the Constitution takes effect on every single minute and every single second of that day, because the Civil Code says a day has 24 hours. So that even if the votes are cast in the morning, the Constitution is really effective from the previous midnight. So that when we adopted the new rule on citizenship, the children of Filipino mothers or anybody born on the date of effectivity of the 1973 Constitution, which is January 17, 1973, are natural-born citizens, no matter what time of day or night. MR. MAAMBONG. Could we, therefore, safely say that whatever date is the publication of the results of the canvass by the COMELEC retroacts to the date of the plebiscite? FR. BERNAS. Yes, Madam President. MR. MAAMBONG. I thank the Commissioner. MR. GUINGONA. Madam President. THE PRESIDENT. Commissioner Guingona is recognized.

MR. GUINGONA. Mention was made about the need for having a definite date. I think it is precisely the proposal of Commissioner Bernas which speaks of the date (of ratification that would have a definite date, because there would be no definite date if we depend upon the canvassing by the COMELEC. Thank you, THE PRESIDENT. Commissioner Concepcion is recognized. MR. CONCEPCION. Thank you, Madam President. Whoever makes the announcement as to the result of the plebiscite, be it the COMELEC or the President, would announce that a majority of the votes cast on a given date was in favor of the Constitution. And that is the date when the Constitution takes effect, apart from the fact that the provision on the drafting or amendment of the Constitution provides that a constitution becomes effective upon ratification by a majority of the votes cast, although I would not say from the very beginning of the date of election because as of that time it is impossible to determine whether there is a majority. At the end of the day of election or plebiscite, the determination is made as of that time-the majority of the votes cast in a plebiscite held on such and such a date. So that is the time when the new Constitution will be considered ratified and, therefore, effective. THE PRESIDENT. May we now hear Vice-President Padilla. MR. PADILLA. Madam President, I am against the proposed amendment of Commissioner Davide and I support the view of Commissioner Bernas and the others because the ratification of the Constitution is on the date the people, by a majority vote, have cast their votes in favor of the Constitution. Even in civil law, if there is a contract, say, between an agent and a third person and that contract is confirmed or ratified by the principal, the validity does not begin on the date of ratification but it retroacts from the date the contract was executed. Therefore, the date of the Constitution as ratified should retroact to the date that the people have cast their affirmative votes in favor of the Constitution. MR. MAAMBONG. Madam President. THE PRESIDENT. Commissioner Maambong is recognized MR. MAAMBONG. We will now ask once more Commissioner Davide if he is insisting on his amendment MR. DAVIDE. In view of the explanation and overwhelming tyranny of the opinion that it will be effective on the very day of the plebiscite, I am withdrawing my amendment on the assumption that any of the following bodies the Office of the President or the COMELEC will make the formal announcement of the results. MR. RAMA. Madam President, we are now ready to vote on the original provision as stated by the committee.

MR. MAAMBONG. The committee will read again the formulation indicated in the original committee report as Section 12. This Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite called for the purpose and shall supersede all previous Constitutions. We ask for a vote, Madam President. VOTING THE PRESIDENT. As many as are in favor, please raise their hand. (Several Members raised their hands.) As many as are against, please raise their hand. (No Member raised his hand.)
The results show 35 votes in favor and none against; Section 12 is approved.
2

The Court next holds as a consequence of its declaration at bar that the Constitution took effect on the date of its ratification in the plebiscite held on February 2, 1987, that: (1) the Provisional Constitution promulgated on March 25, 1986 must be deemed to have been superseded by the 1987 Constitution on the same date February 2, 1987 and (2) by and after said date, February 2, 1987, absent any saying clause to the contrary in the Transitory Article of the Constitution, respondent OIC Governor could no longer exercise the power to replace petitioners in their positions as Barangay Captain and Councilmen. Hence, the attempted replacement of petitioners by respondent OIC Governor's designation on February 8, 1987 of their successors could no longer produce any legal force and effect. While the Provisional Constitution provided for a one-year period expiring on March 25, 1987 within which the power of replacement could be exercised, this period was shortened by the ratification and effectivity on February 2, 1987 of the Constitution. Had the intention of the framers of the Constitution been otherwise, they would have so provided for in the Transitory Article, as indeed they provided for multifarious transitory provisions in twenty six sections of Article XVIII, e.g. extension of the six-year term of the incumbent President and Vice-President to noon of June 30, 1992 for purposes of synchronization of elections, the continued exercise of legislative powers by the incumbent President until the convening of the first Congress, etc. A final note of clarification, as to the statement in the dissent that "the appointments of some seven Court of Appeals Justices, 71 provincial fiscals and 55 city fiscals reported extended (by) the President on February 2, 1987 . . . could be open to serious questions," in view of the provisions of Sections 8 (1) and 9, Article VIII of the Constitution which require prior endorsement thereof by the Judicial and Bar Council created under the Constitution. It should be stated for the record that the reported date of the appointments, February 2, 1987, is incorrect. The official records of the Court show that the appointments of the seven Court of Appeals Justices were transmitted to this Court on February 1, 1987 and they were all appointed on or before January 31, 1987. 3(Similarly, the records of the Department of Justice likewise show that the appointment papers of the last batch of provincial and city fiscals signed by the President in completion of the reorganization of the prosecution service were made on January 31, 1987 and transmitted to the Department on February 1, 1987.) It is also a matter of record that since February 2, 1987, no appointments to the Judiciary have been extended by the President, pending the constitution of the Judicial and Bar Council, indicating that the Chief Executive has likewise considered February 2, 1987 as the effective date of the Constitution, as now expressly declared by the Court. CRUZ, J., concurring.

In her quiet and restrained manner, Justice Herrera is able to prove her point with more telling effect than the tones of thunder. She has written another persuasive opinion, and I am delighted to concur. I note that it in effect affirms my dissents in the De la Serna, Zamora, Duquing and Bayas cases, where I submitted that the local OICs may no longer be summarily replaced, having acquired security of tenure under the new Constitution. Our difference is that whereas I would make that right commence on February 25, 1987, after the deadline set by the Freedom Constitution, Justice Herrera would opt for February 2, 1987, when the new Constitution was ratified. I yield to that better view and agree with her ponencia completely. SARMIENTO, J., Dissenting. With due respect to the majority I register this dissent. While I agree that the one-year deadline prescribed by Section 2, Article III of the Provisional Constitution with respect to the tenure of government functionaries, as follows: SECTION 2. All elective and appointive officials and employees under the 1973 Constitution shall continue in office until otherwise provided by proclamation or executive order or upon the designation or appointment and qualification of their successors, if such appointment is made within a period of one year from February 25, 1986. was cut short by the ratification of the 1987 Constitution, I entertain serious doubts whether or not that cut-off period began on February 2, 1987, the date of the plebiscite held to approve the new Charter. To my mind the 1987 constitution took effect on February 11, 1987, the date the same was proclaimed ratified pursuant to Proclamation No. 58 of the President of the Philippines, and not February 2, 1987, plebiscite day. I rely, first and foremost, on the language of the 1987 Charter itself, thus: Sec. 27. This Constitution shag take effect immediately upon its ratification by a majority of the votes cast in a plebiscite held for the purpose and shall supersede all previous Constitutions. It is my reading of this provision that the Constitution takes effect on the date its ratification shall have been ascertained, and not at the time the people cast their votes to approve or reject it. For it cannot be logically said that Constitution was ratified during such a plebiscite, when the will of the people as of that time, had not, and could not have been, vet determined. Other than that, pragmatic considerations compel me to take the view. I have no doubt that between February 2, and February 11, 1987 the government performed acts that would have been valid under the Provisional Constitution but would otherwise have been void under the 1987 Charter. I recall, in particular, the appointments of some seven Court of Appeals Justices, 71 provincial fiscals, and 55 city fiscals the President reportedly extended on February 2, 1987. 1 Under Sections 8 (1) and 9, Article VIII, of the l987 Constitution, as follows: xxx xxx xxx Sec. 8. (I)A Judicial and Bar Council is hereby created under the supervision of the Supreme Court composed of the Chief Justice as ex officio Chairman, the Secretary

of Justice, and a representative of the Congress as ex oficio Members, a representative of the Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a representative of the private sector. xxx xxx xxx 2Sec. 9. The Members of the Supreme Court and judges of lower courts shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy, Such appointments need no confirmation. xxx xxx xxx such appointments could be open to serious questions. Since 1973, moreover, we have invariably reckoned the effectivity of the Constitution as well as the amendments thereto from the date it is proclaimed ratified. In Magtoto v. Manguera, 2 we held that the 1973 Constitution became in force and effect on January 17, 1973, the date Proclamation No. 1102, "Announcing the Ratification by the Filipino People of the Constitution Proposed by the 1971 Constitutional Convention," was issued, although Mr. Justice, now Chief Justice, Teehankee would push its effectivity date further to April 17, 1973, the date our decision in Javellana v. Executive Secretary, 3 became final. And this was so notwithstanding Section 16, Article XVII, of the 1973 Constitution, thus: SEC. 16. This Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite called for the purpose and, except as herein provided, shall supersede the Constitution of nineteen-hundred and thirty- five and all amendments thereto. On October 27, 1976, then President Marcos promulgated Proclamation no. 1595, proclaiming the ratification of the 1976 amendments submitted in the plebiscite of October 16- 17, 1976. The Proclamation states, inter alia, that. By virtue-of the powers vested in me by law, I hereby proclaim all the amendments embodied in this certificate as duly ratified by the Filipino people in the referendum plebiscite held Oct. 16-17, 1976 and are therefore effective and in full force and effect as of this date. It shall be noted that under Amendment No. 9 of the said 1976 amendments. These amendments shall take effect after the incumbent President shall have proclaimed that they have been ratified by a majority of the votes cast in the referendum-plebiscite. On April 1, 1980, the then Chief Executive issued Proclamation no. 1959, "Proclaiming the Ratification by the Filipino People of the Amendments of Section 7, Article X of the Constitution" (lengthening the terms of office of judges and justices). The Proclamation provides: [t]he above-quoted amendment has been duly ratified by a majority of the votes cast in the plebiscite held, together with the election for local officials, on January 30, 1980, and that said amendment is hereby declared to take effect immediately.

It shall be noted that under Resolution No. 21, dated December 18, 1979, the proposed amendment shall take effect on the date the incumbent President/Prime Minister shall proclaim its ratification. On April 7, 1981, Proclamation No. 2077 was issued "Proclaiming the Ratification in the Plebiscite of April 7, 1981 of the Amendments to the Constitution Embodied in Batas Pambansa Blg. 122 and Declaring Them Therefore Effective and in Full Force and Effect." The Proclamation, in declaring the said amendments duly approved, further declared them "[e]ffective and in full force and in effect as of the date of this Proclamation," It shall be noted, in this connection, that under Resolutions Nos. I and 2 of the Batasang Pambansa, Third Regular Session, Sitting as a Constituent Assembly, which parented these amendments, the same: ... shall become valid as part of the Constitution when approved by a majority of the votes cast in a plebiscite to be held pursuant to Section 2, Article XVI of the Constitution. On the other hand, Batas Pambansa Blg. 122, "An Act to Submit to the Filipino People, for Ratification or Rejection, the Amendment to the Constitution of the Philippines, Proposed by the Batasang Pambansa, Sitting as a Constituent Assembly, in its Resolutions Numbered Three, Two, and One, and to Appropriate Funds Therefore," provides, as follows: SEC. 7. The Commission on Elections, sitting en banc, shad canvass and proclaim the result of the plebiscite using the certificates submitted to it, duly authenticated and certified by the Board of Canvassers of each province or city. We have, finally, Proclamation No. 2332, "Proclaiming the Ratification in the Plebiscite of January 27, 1984, of the Amendments to the Constitution Embodied in Batasang Pambansa Resolutions Nos. 104, 105, 110, 111, 112 and 113." It states that the amendments: ....are therefore effective and in full force and effect as of the date of this Proclamation. It carries out Resolution no. 104 itself (as well as Resolutions Nos. 110 and 112 and Section 9, Batas Blg. 643), which states, that: The proposed amendments shall take effect on the date the President of the Philippines shall proclaim that they have been ratified by a majority of the votes cast in the plebiscite held for the purpose, but not later than three months from the approval of the amendments. albeit Resolutions Nos. 105, 111, and 113 provide, that: These amendments shall be valid as a part of the Constitution when approved by a majority of the votes cast in an election/plebiscite at which it is submitted to the people for their ratification pursuant to Section 2 of Article XVI of the Constitution, as amended. That a Constitution or amendments thereto take effect upon proclamation of their ratification and not at the time of the plebiscite is a view that is not peculiar to the Marcos era. The Resolution of Both Houses (of Congress) in Joint Session on the March 11, 1947 plebiscite called pursuant to Republic Act No. 73 and the Resolution of Both Houses (of Congress) adopted on September 18, 1946, was adopted on April 9,1947. The April 9, 1947 Resolution makes no mention

of a retroactive application. Accordingly, when the incumbent President (Mrs. Corazon C. Aquino) proclaimed on February 11, 1987, at Malacanang Palace:
... that the Constitution of the Republic of the Philippines adopted by the Constitutional Commission of 1986, including the Ordinance appended thereto, has been duly ratified by the Filipino people and is therefore effective and in full force and effect. 4

the 1987 Constitution, in point of fact, came into force and effect, I hold that it took effect at no other time. I submit that our ruling in Ponsica v. Ignalaga 5 in which we declared, in passing, that the new Charter was ratified on February 2, 1987, does not in any way weaken this dissent. As I stated, the remark was said in passing-we did not resolve the case on account of a categorical holding that the 1987 Constitution came to life on February 2, 1987. In any event, if we did, I now call for its reexamination. I am therefore of the opinion, consistent with the views expressed above, that the challenged dismissals done on February 8, 1987 were valid, the 1987 Constitution not being then as yet in force.