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G.R. No.

127325 March 19, 1997 newspapers of general and local Upon the filing of the Delfin Petition, which was forthwith
circulation; given the number UND 96-037 (INITIATIVE), the COMELEC,
through its Chairman, issued an Order 11 (a) directing Delfin
MIRIAM DEFENSOR SANTIAGO, ALEXANDER PADILLA,
"to cause the publication of the petition, together with the
and MARIA ISABEL ONGPIN, petitioners, 3. Instructing Municipal Election
attached Petition for Initiative on the 1987 Constitution
vs. Registrars in all Regions of the
(including the proposal, proposed constitutional amendment,
COMMISSION ON ELECTIONS, JESUS DELFIN, Philippines, to assist Petitioners and
and the signature form), and the notice of hearing in three (3)
ALBERTO PEDROSA & CARMEN PEDROSA, in their volunteers, in establishing signing
daily newspapers of general circulation at his own expense"
capacities as founding members of the People's stations at the time and on the dates
not later than 9 December 1996; and (b) setting the case for
Initiative for Reforms, Modernization and Action designated for the purpose.
hearing on 12 December 1996 at 10:00 a.m.
(PIRMA), respondents.
Delfin alleged in his petition that he is a founding member of
At the hearing of the Delfin Petition on 12 December 1996,
SENATOR RAUL S. ROCO, DEMOKRASYA- the Movement for People's Initiative,6 a group of citizens
the following appeared: Delfin and Atty. Pete Q. Quadra;
IPAGTANGGOL ANG KONSTITUSYON (DIK), desirous to avail of the system intended to institutionalize
representatives of the People's Initiative for Reforms,
MOVEMENT OF ATTORNEYS FOR BROTHERHOOD people power; that he and the members of the Movement
Modernization and Action (PIRMA); intervenor-oppositor
INTEGRITY AND NATIONALISM, INC. (MABINI), and other volunteers intend to exercise the power to directly
Senator Raul S. Roco, together with his two other lawyers,
INTEGRATED BAR OF THE PHILIPPINES (IBP), and propose amendments to the Constitution granted under
and representatives of, or counsel for, the Integrated Bar of
LABAN NG DEMOKRATIKONG PILIPINO Section 2, Article XVII of the Constitution; that the exercise of
the Philippines (IBP), Demokrasya-Ipagtanggol ang
(LABAN), petitioners-intervenors. that power shall be conducted in proceedings under the
Konstitusyon (DIK), Public Interest Law Center, and Laban
control and supervision of the COMELEC; that, as required
ng Demokratikong Pilipino (LABAN). 12 Senator Roco, on
in COMELEC Resolution No. 2300, signature stations shall
that same day, filed a Motion to Dismiss the Delfin Petition
be established all over the country, with the assistance of
DAVIDE, JR., J.: on the ground that it is not the initiatory petition properly
municipal election registrars, who shall verify the signatures
cognizable by the COMELEC.
affixed by individual signatories; that before the Movement
The heart of this controversy brought to us by way of a and other volunteers can gather signatures, it is necessary
petition for prohibition under Rule 65 of the Rules of Court is that the time and dates to be designated for the purpose be After hearing their arguments, the COMELEC directed Delfin
the right of the people to directly propose amendments to the first fixed in an order to be issued by the COMELEC; and and the oppositors to file their "memoranda and/or
Constitution through the system of initiative under Section 2 that to adequately inform the people of the electoral process oppositions/memoranda" within five days. 13
of Article XVII of the 1987 Constitution. Undoubtedly, this involved, it is likewise necessary that the said order, as well
demands special attention, as this system of initiative was as the Petition on which the signatures shall be affixed, be
On 18 December 1996, the petitioners herein — Senator
unknown to the people of this country, except perhaps to a published in newspapers of general and local circulation,
Miriam Defensor Santiago, Alexander Padilla, and Maria
few scholars, before the drafting of the 1987 Constitution. under the control and supervision of the COMELEC.
Isabel Ongpin — filed this special civil action for prohibition
The 1986 Constitutional Commission itself, through the
raising the following arguments:
original proponent1 and the main sponsor2 of the proposed
The Delfin Petition further alleged that the provisions sought
Article on Amendments or Revision of the Constitution,
to be amended are Sections 4 and 7 of Article VI,7Section 4
characterized this system as "innovative".3 Indeed it is, for (1) The constitutional provision on
of Article VII,8 and Section 8 of Article X9 of the Constitution.
both under the 1935 and 1973 Constitutions, only two people's initiative to amend the
Attached to the petition is a copy of a "Petition for Initiative
methods of proposing amendments to, or revision of, the Constitution can only be implemented by
on the 1987 Constitution" 10 embodying the proposed
Constitution were recognized, viz., (1) by Congress upon a law to be passed by Congress. No such
amendments which consist in the deletion from the
vote of three-fourths of all its members and (2) by a law has been passed; in fact, Senate Bill
aforecited sections of the provisions concerning term limits,
constitutional convention.4 For this and the other reasons No. 1290 entitled An Act Prescribing and
and with the following proposition:
hereafter discussed, we resolved to give due course to this Regulating Constitution Amendments by
petition. People's Initiative, which petitioner
DO YOU APPROVE OF LIFTING THE Senator Santiago filed on 24 November
TERM LIMITS OF ALL ELECTIVE 1995, is still pending before the Senate
On 6 December 1996, private respondent Atty. Jesus S.
GOVERNMENT OFFICIALS, Committee on Constitutional
Delfin filed with public respondent Commission on Elections
AMENDING FOR THE PURPOSE Amendments.
(hereafter, COMELEC) a "Petition to Amend the Constitution,
SECTIONS 4 AND 7 OF ARTICLE VI,
to Lift Term Limits of Elective Officials, by People's Initiative"
SECTION 4 OF ARTICLE VII, AND
(hereafter, Delfin Petition)5 wherein Delfin asked the (2) It is true that R.A. No. 6735 provides
SECTION 8 OF ARTICLE X OF THE
COMELEC for an order for three systems of initiative, namely,
1987 PHILIPPINE CONSTITUTION?
initiative on the Constitution, on statutes,
and on local legislation. However, it
1. Fixing the time and dates for
According to Delfin, the said Petition for Initiative will first be failed to provide any subtitle on initiative
signature gathering all over the country;
submitted to the people, and after it is signed by at least on the Constitution, unlike in the other
twelve per cent of the total number of registered voters in the modes of initiative, which are specifically
2. Causing the necessary publications of country it will be formally filed with the COMELEC. provided for in Subtitle II and Subtitle III.
said Order and the attached "Petition for This deliberate omission indicates that
Initiative on the 1987 Constitution, in the matter of people's initiative to amend
the Constitution was left to some future issues raised demands that this petition for prohibition be UPHELD BY THE HONORABLE
law. Former Senator Arturo Tolentino settled promptly and definitely, brushing aside technicalities COURT IN ITS RECENT SEPTEMBER
stressed this deficiency in the law in his of procedure and calling for the admission of a taxpayer's 26, 1996 DECISION IN THE CASE
privilege speech delivered before the and legislator's suit. 14 Besides, there is no other plain, OF SUBIC BAY METROPOLITAN
Senate in 1994: "There is not a single speedy, and adequate remedy in the ordinary course of law. AUTHORITY VS. COMELEC, ET AL.
word in that law which can be G.R. NO. 125416;
considered as implementing [the
On 19 December 1996, this Court (a) required the
provision on constitutional initiative].
respondents to comment on the petition within a non- 4. REP. ACT NO. 6735 APPROVED ON
Such implementing provisions have
extendible period of ten days from notice; and (b) issued a AUGUST 4, 1989 IS THE ENABLING
been obviously left to a separate law.
temporary restraining order, effective immediately and LAW IMPLEMENTING THE POWER
continuing until further orders, enjoining public respondent OF PEOPLE INITIATIVE TO PROPOSE
(3) Republic Act No. 6735 provides for COMELEC from proceeding with the Delfin Petition, and AMENDMENTS TO THE
the effectivity of the law after publication private respondents Alberto and Carmen Pedrosa from CONSTITUTION. SENATOR
in print media. This indicates that the Act conducting a signature drive for people's initiative to amend DEFENSOR-SANTIAGO'S SENATE
covers only laws and not constitutional the Constitution. BILL NO. 1290 IS A DUPLICATION OF
amendments because the latter take WHAT ARE ALREADY PROVIDED
effect only upon ratification and not after FOR IN REP. ACT NO. 6735;
On 2 January 1997, private respondents, through Atty
publication.
Quadra, filed their Comment 15 on the petition. They argue
therein that: 5. COMELEC RESOLUTION NO. 2300
(4) COMELEC Resolution No. 2300, PROMULGATED ON JANUARY 16,
adopted on 16 January 1991 to govern 1991 PURSUANT TO REP. ACT 6735
1. IT IS NOT TRUE THAT "IT WOULD
"the conduct of initiative on the WAS UPHELD BY THE HONORABLE
ENTAIL EXPENSES TO THE
Constitution and initiative and COURT IN THE RECENT SEPTEMBER
NATIONAL TREASURY FOR
referendum on national and local laws, 26, 1996 DECISION IN THE CASE
GENERAL REGISTRATION OF
is ultra vires insofar as initiative on OF SUBIC BAY METROPOLITAN
VOTERS AMOUNTING TO AT LEAST
amendments to the Constitution is AUTHORITY VS. COMELEC, ET AL.
PESOS: ONE HUNDRED EIGHTY
concerned, since the COMELEC has no G.R. NO. 125416 WHERE THE
MILLION (P180,000,000.00)" IF THE
power to provide rules and regulations HONORABLE COURT SAID: "THE
"COMELEC GRANTS THE PETITION
for the exercise of the right of initiative to COMMISSION ON ELECTIONS CAN
FILED BY RESPONDENT DELFIN
amend the Constitution. Only Congress DO NO LESS BY SEASONABLY AND
BEFORE THE COMELEC.
is authorized by the Constitution to pass JUDICIOUSLY PROMULGATING
the implementing law. GUIDELINES AND RULES FOR BOTH
2. NOT A SINGLE CENTAVO WOULD NATIONAL AND LOCAL USE, IN
BE SPENT BY THE NATIONAL IMPLEMENTING OF THESE LAWS."
(5) The people's initiative is limited
GOVERNMENT IF THE COMELEC
to amendments to the Constitution, not
GRANTS THE PETITION OF
to revision thereof. Extending or lifting of 6. EVEN SENATOR DEFENSOR-
RESPONDENT DELFIN. ALL
term limits constitutes a revision and is, SANTIAGO'S SENATE BILL NO. 1290
EXPENSES IN THE SIGNATURE
therefore, outside the power of the CONTAINS A PROVISION
GATHERING ARE ALL FOR THE
people's initiative. DELEGATING TO THE COMELEC THE
ACCOUNT OF RESPONDENT DELFIN
POWER TO "PROMULGATE SUCH
AND HIS VOLUNTEERS PER THEIR
RULES AND REGULATIONS AS MAY
(6) Finally, Congress has not yet PROGRAM OF ACTIVITIES AND
BE NECESSARY TO CARRY OUT THE
appropriated funds for people's initiative; EXPENDITURES SUBMITTED TO THE
PURPOSES OF THIS ACT." (SEC. 12,
neither the COMELEC nor any other COMELEC. THE ESTIMATED COST
S.B. NO. 1290, ENCLOSED AS ANNEX
government department, agency, or OF THE DAILY PER DIEM OF THE
E, PETITION);
office has realigned funds for the SUPERVISING SCHOOL TEACHERS
purpose. IN THE SIGNATURE GATHERING TO
BE DEPOSITED and TO BE PAID BY 7. THE LIFTING OF THE LIMITATION
DELFIN AND HIS VOLUNTEERS IS ON THE TERM OF OFFICE OF
To justify their recourse to us via the special civil action for
P2,571,200.00; ELECTIVE OFFICIALS PROVIDED
prohibition, the petitioners allege that in the event the
UNDER THE 1987 CONSTITUTION IS
COMELEC grants the Delfin Petition, the people's initiative
NOT A "REVISION" OF THE
spearheaded by PIRMA would entail expenses to the 3. THE PENDING PETITION BEFORE
CONSTITUTION. IT IS ONLY AN
national treasury for general re-registration of voters THE COMELEC IS ONLY ON THE
AMENDMENT. "AMENDMENT
amounting to at least P180 million, not to mention the SIGNATURE GATHERING WHICH BY
ENVISAGES AN ALTERATION OF
millions of additional pesos in expenses which would be LAW COMELEC IS DUTY BOUND "TO
ONE OR A FEW SPECIFIC
incurred in the conduct of the initiative itself. Hence, the SUPERVISE CLOSELY" PURSUANT
PROVISIONS OF THE
transcendental importance to the public and the nation of the TO ITS "INITIATORY JURISDICTION"
CONSTITUTION. REVISION term limits. It does not seek to of the COMELEC to implement the
CONTEMPLATES A RE-EXAMINATION reexamine or overhaul the entire provisions of R.A. No. 6735 was in fact
OF THE ENTIRE DOCUMENT TO document. upheld by this Court in Subic Bay
DETERMINE HOW AND TO WHAT Metropolitan Authority vs. COMELEC.
EXTENT IT SHOULD BE ALTERED."
As to the public expenditures for registration of voters, Delfin
(PP. 412-413, 2ND. ED. 1992, 1097
considers petitioners' estimate of P180 million as unreliable, On 14 January 1997, this Court (a) confirmed nunc pro
PHIL. CONSTITUTION, BY JOAQUIN
for only the COMELEC can give the exact figure. Besides, if tunc the temporary restraining order; (b) noted the
G. BERNAS, S.J.).
there will be a plebiscite it will be simultaneous with the 1997 aforementioned Comments and the Motion to Lift Temporary
Barangay Elections. In any event, fund requirements Restraining Order filed by private respondents through Atty.
Also on 2 January 1997, private respondent Delfin filed in his for initiative will be a priority government expense because it Quadra, as well as the latter's Manifestation stating that he is
own behalf a Comment 16 which starts off with an assertion will be for the exercise of the sovereign power of the people. the counsel for private respondents Alberto and Carmen
that the instant petition is a "knee-jerk reaction to a draft Pedrosa only and the Comment he filed was for the
'Petition for Initiative on the 1987 Constitution'. . . which is Pedrosas; and (c) granted the Motion for Intervention filed on
In the Comment 17 for the public respondent COMELEC, filed
not formally filed yet." What he filed on 6 December 1996 6 January 1997 by Senator Raul Roco and allowed him to
also on 2 January 1997, the Office of the Solicitor General
was an "Initiatory Pleading" or "Initiatory Petition," which was file his Petition in Intervention not later than 20 January
contends that:
legally necessary to start the signature campaign to amend 1997; and (d) set the case for hearing on 23 January 1997 at
the Constitution or to put the movement to gather signatures 9:30 a.m.
under COMELEC power and function. On the substantive (1) R.A. No. 6735 deals with, inter alia,
allegations of the petitioners, Delfin maintains as follows: people's initiative to amend the
On 17 January 1997, the Demokrasya-Ipagtanggol ang
Constitution. Its Section 2 on Statement
Konstitusyon (DIK) and the Movement of Attorneys for
of Policy explicitly affirms, recognizes,
(1) Contrary to the claim of the Brotherhood Integrity and Nationalism, Inc. (MABINI), filed a
and guarantees that power; and its
petitioners, there is a law, R.A. No. Motion for Intervention. Attached to the motion was their
Section 3, which enumerates the three
6735, which governs the conduct Petition in Intervention, which was later replaced by an
systems of initiative, includes initiative
of initiative to amend the Constitution. Amended Petition in Intervention wherein they contend that:
on the Constitution and defines the
The absence therein of a subtitle for
same as the power to propose
such initiative is not fatal, since subtitles
amendments to the Constitution. (1) The Delfin proposal does not involve
are not requirements for the validity or
Likewise, its Section 5 repeatedly a mere amendment to, but a revision of,
sufficiency of laws.
mentions initiative on the Constitution. the Constitution because, in the words
of Fr. Joaquin Bernas, S.J., 18 it would
(2) Section 9(b) of R.A. No. 6735 involve a change from a political
(2) A separate subtitle on initiative on
specifically provides that the proposition philosophy that rejects unlimited tenure
the Constitution is not necessary in R.A.
in an initiative to amend the Constitution to one that accepts unlimited tenure;
No. 6735 because, being national in
approved by the majority of the votes and although the change might appear
scope, that system of initiative is
cast in the plebiscite shall become to be an isolated one, it can affect other
deemed included in the subtitle on
effective as of the day of the plebiscite. provisions, such as, on synchronization
National Initiative and Referendum; and
of elections and on the State policy of
Senator Tolentino simply overlooked
guaranteeing equal access to
(3) The claim that COMELEC Resolution pertinent provisions of the law when he
opportunities for public service and
No. 2300 is ultra vires is contradicted by claimed that nothing therein was
prohibiting political
(a) Section 2, Article IX-C of the provided for initiative on the
dynasties. 19 A revision cannot be done
Constitution, which grants the Constitution.
by initiative which, by express provision
COMELEC the power to enforce and
of Section 2 of Article XVII of the
administer all laws and regulations
(3) Senate Bill No. 1290 is neither a Constitution, is limited to amendments.
relative to the conduct of an election,
competent nor a material proof that R.A.
plebiscite, initiative, referendum, and
No. 6735 does not deal with initiative on
recall; and (b) Section 20 of R.A. 6735, (2) The prohibition against reelection of
the Constitution.
which empowers the COMELEC to the President and the limits provided for
promulgate such rules and regulations all other national and local elective
as may be necessary to carry out the (4) Extension of term limits of elected officials are based on the philosophy of
purposes of the Act. officials constitutes a mere amendment governance, "to open up the political
to the Constitution, not a revision arena to as many as there are Filipinos
thereof. qualified to handle the demands of
(4) The proposed initiative does not
leadership, to break the concentration of
involve a revision of, but
political and economic powers in the
mere amendment to, the Constitution (5) COMELEC Resolution No. 2300 was hands of a few, and to promote effective
because it seeks to alter only a few validly issued under Section 20 of R.A.
proper empowerment for participation in
specific provisions of the Constitution, or No. 6735 and under the Omnibus policy and decision-making for the
more specifically, only those which lay Election Code. The rule-making power
common good"; hence, to remove the Senate Bill No. 17 and House Bill No. 21505; he co-authored Petition in Intervention within a nonextendible period of three
term limits is to negate and nullify the the House Bill and even delivered a sponsorship speech days from notice, and the respondents to comment thereon
noble vision of the 1987 Constitution. thereon. He likewise submits that the COMELEC was within a nonextendible period of five days from receipt of the
empowered under Section 20 of that law to promulgate said Petition in Intervention.
COMELEC Resolution No. 2300. Nevertheless, he contends
(3) The Delfin proposal runs counter to
that the respondent Commission is without jurisdiction to
the purpose of initiative, particularly in a At the hearing of the case on 23 January 1997, the parties
take cognizance of the Delfin Petition and to order its
conflict-of-interest situation. Initiative is argued on the following pivotal issues, which the Court
publication because the said petition is not the initiatory
intended as a fallback position that may formulated in light of the allegations and arguments raised in
pleading contemplated under the Constitution, Republic Act
be availed of by the people only if they the pleadings so far filed:
No. 6735, and COMELEC Resolution No. 2300. What vests
are dissatisfied with the performance of
jurisdiction upon the COMELEC in an initiative on the
their elective officials, but not as a
Constitution is the filing of a petition for initiative which 1. Whether R.A. No. 6735, entitled An
premium for good performance. 20
is signed by the required number of registered voters. He Act Providing for a System of Initiative
also submits that the proponents of a constitutional and Referendum and Appropriating
(4) R.A. No. 6735 is deficient and amendment cannot avail of the authority and resources of Funds Therefor, was intended to include
inadequate in itself to be called the the COMELEC to assist them is securing the required or cover initiative on amendments to the
enabling law that implements the number of signatures, as the COMELEC's role in an initiative Constitution; and if so, whether the Act,
people's initiative on amendments to the on the Constitution is limited to the determination of the as worded, adequately covers
Constitution. It fails to state (a) the sufficiency of the initiative petition and the call and such initiative.
proper parties who may file the petition, supervision of a plebiscite, if warranted.
(b) the appropriate agency before whom
2. Whether that portion of COMELEC
the petition is to be filed, (c) the contents
On 20 January 1997, LABAN filed a Motion for Leave to Resolution No. 2300 (In re: Rules and
of the petition, (d) the publication of the
Intervene. Regulations Governing the Conduct of
same, (e) the ways and means of
Initiative on the Constitution, and
gathering the signatures of the voters
Initiative and Referendum on National
nationwide and 3% per legislative The following day, the IBP filed a Motion for Intervention to
and Local Laws) regarding the conduct
district, (f) the proper parties who may which it attached a Petition in Intervention raising the
of initiative on amendments to the
oppose or question the veracity of the following arguments:
Constitution is valid, considering the
signatures, (g) the role of the COMELEC
absence in the law of specific provisions
in the verification of the signatures and
(1) Congress has failed to enact an on the conduct of such initiative.
the sufficiency of the petition, (h) the
enabling law mandated under Section 2,
appeal from any decision of the
Article XVII of the 1987 Constitution.
COMELEC, (I) the holding of a 3. Whether the lifting of term limits of
plebiscite, and (g) the appropriation of elective national and local officials, as
funds for such people's initiative. (2) COMELEC Resolution No. 2300 proposed in the draft "Petition for
Accordingly, there being no enabling cannot substitute for the required Initiative on the 1987 Constitution,"
law, the COMELEC has no jurisdiction implementing law on the initiative to would constitute a revision of, or an
to hear Delfin's petition. amend the Constitution. amendment to, the Constitution.

(5) The deficiency of R.A. No. 6735 (3) The Petition for Initiative suffers from 4. Whether the COMELEC can take
cannot be rectified or remedied by a fatal defect in that it does not have the cognizance of, or has jurisdiction over, a
COMELEC Resolution No. 2300, since required number of signatures. petition solely intended to obtain an
the COMELEC is without authority to order (a) fixing the time and dates for
legislate the procedure for a signature gathering; (b) instructing
people's initiative under Section 2 of (4) The petition seeks, in effect a
municipal election officers to assist
Article XVII of the Constitution. That revision of the Constitution, which can
Delfin's movement and volunteers in
be proposed only by Congress or a
function exclusively pertains to establishing signature stations; and (c)
Congress. Section 20 of R.A. No. 6735 constitutional convention. 22
directing or causing the publication
does not constitute a legal basis for the of, inter alia, the unsigned proposed
Resolution, as the former does not set a On 21 January 1997, we promulgated a Resolution (a) Petition for Initiative on the 1987
sufficient standard for a valid delegation granting the Motions for Intervention filed by the DIK and Constitution.
of power. MABINI and by the IBP, as well as the Motion for Leave to
Intervene filed by LABAN; (b) admitting the Amended
5. Whether it is proper for the Supreme
On 20 January 1997, Senator Raul Roco filed his Petition in Petition in Intervention of DIK and MABINI, and the Petitions
Court to take cognizance of the petition
Intervention. 21 He avers that R.A. No. 6735 is the enabling in Intervention of Senator Roco and of the IBP; (c) requiring
when there is a pending case before the
the respondents to file within a nonextendible period of five
law that implements the people's right to initiate COMELEC.
constitutional amendments. This law is a consolidation of days their Consolidated Comments on the aforesaid
Petitions in Intervention; and (d) requiring LABAN to file its
After hearing them on the issues, we required the parties to 29. The writ of prohibition is an from further proceedings in the action or
submit simultaneously their respective memoranda within extraordinary judicial writ issuing out of a matter specified therein.
twenty days and requested intervenor Senator Roco to court of superior jurisdiction and directed
submit copies of the deliberations on House Bill No. 21505. to an inferior court, for the purpose of
It must also be noted that intervenor Roco claims that the
preventing the inferior tribunal from
COMELEC has no jurisdiction over the Delfin Petition
usurping a jurisdiction with which it is not
On 27 January 1997, LABAN filed its Petition in Intervention because the said petition is not supported by the required
legally vested. (People v. Vera, supra.,
wherein it adopts the allegations and arguments in the main minimum number of signatures of registered voters. LABAN
p. 84). In this case the writ is an urgent
Petition. It further submits that the COMELEC should have also asserts that the COMELEC gravely abused its
necessity, in view of the highly divisive
dismissed the Delfin Petition for failure to state a sufficient discretion in refusing to dismiss the Delfin Petition, which
and adverse environmental
cause of action and that the Commission's failure or refusal does not contain the required number of signatures. In light
consequences on the body politic of the
to do so constituted grave abuse of discretion amounting to of these claims, the instant case may likewise be treated as
questioned Comelec order. The
lack of jurisdiction. a special civil action for certiorari under Section I of Rule 65
consequent climate of legal confusion
of the Rules of Court.
and political instability begs for judicial
On 28 January 1997, Senator Roco submitted copies of statesmanship.
portions of both the Journal and the Record of the House of In any event, as correctly pointed out by intervenor Roco in
Representatives relating to the deliberations of House Bill his Memorandum, this Court may brush aside technicalities
30. In the final analysis, when the
No. 21505, as well as the transcripts of stenographic notes of procedure in
system of constitutional law is
on the proceedings of the Bicameral Conference Committee, cases of transcendental importance. As we stated
threatened by the political ambitions of 28
Committee on Suffrage and Electoral Reforms, of 6 June in Kilosbayan, Inc. v. Guingona, Jr.
man, only the Supreme Court
1989 on House Bill No. 21505 and Senate Bill No. 17.
can save a nation in peril and uphold the
paramount majesty of the A party's standing before this Court is a
Private respondents Alberto and Carmen Pedrosa filed their Constitution. 25 procedural technicality which it may, in
Consolidated Comments on the Petitions in Intervention of the exercise of its discretion, set aside in
Senator Roco, DIK and MABINI, and IBP. 23 The parties view of the importance of issues raised.
It must be recalled that intervenor Roco filed with the
thereafter filed, in due time, their separate memoranda. 24 In the landmark Emergency Powers
COMELEC a motion to dismiss the Delfin Petition on the
Cases, this Court brushed aside this
ground that the COMELEC has no jurisdiction or authority to
technicality because the transcendental
As we stated in the beginning, we resolved to give due entertain the petition. 26 The COMELEC made no ruling
importance to the public of these cases
course to this special civil action. thereon evidently because after having heard the arguments
demands that they be settled promptly
of Delfin and the oppositors at the hearing on 12 December
and definitely, brushing aside, if we
1996, it required them to submit within five days their
For a more logical discussion of the formulated issues, we must, technicalities of procedure.
memoranda or oppositions/memoranda. 27 Earlier, or
shall first take up the fifth issue which appears to pose a specifically on 6 December 1996, it practically gave due
prejudicial procedural question.
course to the Delfin Petition by ordering Delfin to cause the II
publication of the petition, together with the attached Petition
I for Initiative, the signature form, and the notice of hearing;
R.A. NO. 6735 INTENDED TO INCLUDE THE
and by setting the case for hearing. The COMELEC's failure
to act on Roco's motion to dismiss and its insistence to hold SYSTEM OF INITIATIVE ON AMENDMENTS TO
THE INSTANT PETITION IS VIABLE DESPITE on to the petition rendered ripe and viable the instant petition THE CONSTITUTION, BUT IS,
THE PENDENCY IN THE COMELEC OF THE UNFORTUNATELY, INADEQUATE TO COVER
under Section 2 of Rule 65 of the Rules of Court, which
DELFIN PETITION. provides: THAT SYSTEM.

Except for the petitioners and intervenor Roco, the parties Section 2 of Article XVII of the Constitution provides:
Sec. 2. Petition for prohibition. — Where
paid no serious attention to the fifth issue, i.e., whether it is the proceedings of any tribunal,
proper for this Court to take cognizance of this special civil corporation, board, or person, whether Sec. 2. Amendments to this Constitution
action when there is a pending case before the COMELEC. exercising functions judicial or may likewise be directly proposed by the
The petitioners provide an affirmative answer. Thus: ministerial, are without or in excess of its people through initiative upon a petition
or his jurisdiction, or with grave abuse of of at least twelve per centum of the total
28. The Comelec has no jurisdiction to discretion, and there is no appeal or any number of registered voters, of which
take cognizance of the petition filed by other plain, speedy and adequate every legislative district must be
private respondent Delfin. This being so, remedy in the ordinary course of law, a represented by at least three per
it becomes imperative to stop the person aggrieved thereby may file a centum of the registered voters therein.
Comelec from proceeding any further, verified petition in the proper court No amendment under this section shall
and under the Rules of Court, Rule 65, alleging the facts with certainty and be authorized within five years following
Section 2, a petition for prohibition is the praying that judgment be rendered the ratification of this Constitution nor
proper remedy. commanding the defendant to desist oftener than once every five years
thereafter.
The Congress shall provide for the implementation of the President. May we matter to the
exercise of this right. respectfully call legislature?
attention of the
Members of the
This provision is not self-executory. In his book, 29 Joaquin MR. SUAREZ. That
Commission that
Bernas, a member of the 1986 Constitutional Commission, is right, Madam
pursuant to the
stated: President.
mandate given to us
last night, we
Without implementing legislation Section submitted this FR. BERNAS. And
2 cannot operate. Thus, although this afternoon a do we also
mode of amending the Constitution is a complete understand,
mode of amendment which bypasses Committee Report therefore, that for as
congressional action, in the last analysis No. 7 which long as the
it still is dependent on congressional embodies the legislature does not
action. proposed provision pass the necessary
governing the implementing law
matter of initiative. on this, this will not
Bluntly stated, the right of the people to directly This is now covered operate?
propose amendments to the Constitution through by Section 2 of the
the system of initiative would remain entombed in
complete committee
the cold niche of the Constitution until Congress report. With the MR. SUAREZ. That
provides for its implementation. Stated otherwise, permission of the matter was also
while the Constitution has recognized or granted taken up during the
Members, may I
that right, the people cannot exercise it if quote Section 2: committee hearing,
Congress, for whatever reason, does not provide especially with
for its implementation. respect to the
The people may, after five years from budget
the date of the last plebiscite held, appropriations
This system of initiative was originally included in Section 1 directly propose amendments to this which would have to
of the draft Article on Amendment or Revision proposed by Constitution thru initiative upon petition be legislated so that
the Committee on Amendments and Transitory Provisions of of at least ten percent of the registered the plebiscite could
the 1986 Constitutional Commission in its Committee Report voters. be called. We
No. 7 (Proposed Resolution No. 332). 30 That section reads
deemed it best that
as follows:
this matter be left to
This completes the blanks appearing in
the legislature. The
the original Committee Report No. 7. 32
Sec. 1. Any amendment to, or revision of, this Constitution Gentleman is right.
may be proposed: In any event, as
The interpellations on Section 2 showed that the details for envisioned, no
carrying out Section 2 are left to the legislature. Thus: amendment through
(a) by the National Assembly upon a the power of
vote of three-fourths of all its members; initiative can be
or FR. BERNAS.
called until after five
Madam President,
years from the date
just two simple,
(b) by a constitutional convention; or of the ratification of
clarificatory
this Constitution.
questions.
Therefore, the first
(c) directly by the people themselves amendment that
thru initiative as provided for in First, on Section 1 could be proposed
Article___ Section ___of the through the
on the matter of
Constitution. 31 initiative upon exercise of this
petition of at least initiative power
After several interpellations, but before the period 10 percent, there would be after five
of amendments, the Committee submitted a new are no details in the years. It is
formulation of the concept of initiative which it provision on how to reasonably
denominated as Section 2; thus: carry this out. Do expected that within
we understand, that five-year
therefore, that we period, the National
MR. SUAREZ. are leaving this Assembly can come
Thank you, Madam up with the
appropriate rules MR. SUAREZ. That underscore the
governing the is absolutely primacy of
exercise of this correct, Madam constituent power
power. President. we have a separate
article in the
constitution that
FR. BERNAS. MS. AQUINO. I fully
would specifically
Since the matter concur with the
cover the process
is left to the underlying precept
and the modes of
legislature — the of the proposal in
amending the
details on how this terms of
Constitution?
is to be carried institutionalizing
out — is it possible popular participation
that, in effect, what in the drafting of the MR. SUAREZ. That
will be presented to Constitution or in is right, Madam
the people for the amendment President.
ratification is the thereof, but I would
work of the have a lot of
MS. AQUINO.
legislature rather difficulties in terms
Therefore, is the
than of the people? of accepting the
sponsor inclined, as
Does this provision draft of Section 2,
the provisions are
exclude that as written. Would
drafted now, to
possibility? the sponsor agree
again concede to
with me that in the
the legislature the
hierarchy of legal
MR. SUAREZ. No, process or the
mandate,
it does not exclude requirement of
constituent power
that possibility determining the
has primacy over all
because even the mechanics of
other legal
legislature itself as amending the
mandates?
a body could Constitution by
propose that people's initiative?
amendment, maybe MR. SUAREZ. The
individually or Commissioner is
MR. SUAREZ. The
collectively, if it fails right, Madam
matter of
to muster the three- President.
implementing this
fourths vote in order
could very well be
to constitute itself
MS. AQUINO. And placed in the hands
as a constituent
would the sponsor of the National
assembly and
agree with me that Assembly, not
submit that proposal
in the hierarchy of unless we can
to the people for
legal values, the incorporate into this
ratification through
Constitution is provision the
the process of an
source of all legal mechanics that
initiative.
mandates and that would adequately
therefore we require cover all the
xxx xxx xxx a great deal of conceivable
circumspection in situations. 33
the drafting and in
MS. AQUINO. Do I
the amendments of
understand from the It was made clear during the interpellations that the
the Constitution?
sponsor that the aforementioned Section 2 is limited to proposals to AMEND
intention in the — not to REVISE — the Constitution; thus:
proposal is to vest MR. SUAREZ. That
constituent power in proposition is
MR. SUAREZ. . . .
the people to nondebatable.
This proposal was
amend the
suggested on the
Constitution?
MS. AQUINO. Such theory that this
that in order to matter of initiative,
which came about amendment and Rama, Ople, de los
because of the should not expand Reyes and Romulo.
extraordinary into a revision which The modified
developments this contemplates a total amendment in
year, has to be overhaul of the substitution of the
separated from the Constitution. That proposed Section 2
traditional modes of was the sense that will now read as
amending the was conveyed by follows: "SECTION
Constitution as the Committee. 2. —
embodied in AMENDMENTS TO
Section 1. The THIS
MS. AQUINO. In
committee CONSTITUTION
other words, the
members felt MAY LIKEWISE BE
Committee was
that this system of DIRECTLY
attempting to
initiative should not PROPOSED BY
distinguish the
extend to the THE PEOPLE
coverage of modes
revision of the entire THROUGH
(a) and (b) in
Constitution, so we INITIATIVE UPON
Section 1 to include
removed it from the A PETITION OF AT
the process of
operation of Section LEAST TWELVE
revision; whereas
1 of the proposed PERCENT OF THE
the process of
Article on TOTAL NUMBER
initiation to amend,
Amendment or Of REGISTERED
34 which is given to the
Revision. VOTERS, OF
public, would only
WHICH EVERY
apply to
LEGISLATIVE
xxx xxx xxx amendments?
DISTRICT MUST
BE
MS. AQUINO. In MR. SUAREZ. That REPRESENTED
which case, I am is right. Those were BY AT LEAST
seriously bothered the terms THREE PERCENT
by providing this envisioned in the OF THE
process of initiative Committee. 35 REGISTERED
as a separate VOTERS
section in the Article THEREOF. NO
Amendments to the proposed Section 2 were thereafter AMENDMENT
on Amendment.
introduced by then Commissioner Hilario G. Davide, Jr.,
Would the sponsor UNDER THIS
which the Committee accepted. Thus: SECTION SHALL
be amenable to
accepting an BE AUTHORIZED
amendment in MR. DAVIDE. WITHIN FIVE
terms of realigning Thank you Madam YEARS
Section 2 as President. I propose FOLLOWING THE
another to substitute the RATIFICATION OF
subparagraph (c) of entire Section 2 with THIS
Section 1, instead the following: CONSTITUTION
of setting it up as NOR OFTENER
another separate THAN ONCE
section as if it were MR. DAVIDE. EVERY FIVE
a self-executing Madam President, I YEARS
have modified the THEREAFTER.
provision?
proposed
amendment after
MR. SUAREZ. We taking into account THE NATIONAL
would be amenable the modifications ASSEMBLY SHALL
except that, as we submitted by the BY LAW PROVIDE
clarified a while sponsor himself and FOR THE
ago, this process of the honorable IMPLEMENTATION
initiative is limited to Commissioners OF THE EXERCISE
the matter of Guingona, Monsod, OF THIS RIGHT.
MR. SUAREZ. anymore the Padilla when he
Madam President, percentage of the made the distinction
considering that the requirement. between the words
proposed "amendments" and
amendment is "revision"?
MR. ROMULO. But
reflective of the
the procedures,
sense contained in
including the MR. DAVIDE. No, it
Section 2 of our
determination of the does not, because
completed
proper form for "amendments" and
Committee Report
submission to the "revision" should be
No. 7, we accept
people, may be covered by Section
the proposed
subject to 1. So insofar as
amendment. 36
legislation. initiative is
concerned, it can
The interpellations which ensued on the proposed modified only relate to
MR. DAVIDE. As
amendment to Section 2 clearly showed that it was a "amendments" not
long as it will not
legislative act which must implement the exercise of the "revision." 38
destroy the
right. Thus:
substantive right to
initiate. In other Commissioner Davide further emphasized that the process
MR. ROMULO. words, none of the of proposing amendments through initiative must be more
Under procedures to be rigorous and difficult than the initiative on legislation. Thus:
Commissioner proposed by the
Davide's legislative body
MR. DAVIDE. A
amendment, is it must diminish or
distinction has to be
possible for the impair the right
made that under
legislature to set conceded here.
this proposal, what
forth certain
is involved is an
procedures to carry
MR. ROMULO. In amendment to the
out the initiative. . .?
that provision of the Constitution. To
Constitution can the amend a
MR. DAVIDE. It procedures which I Constitution would
can. have discussed be ordinarily require a
legislated? proposal by the
National Assembly
xxx xxx xxx
by a vote of three-
MR. DAVIDE.
fourths; and to call a
Yes. 37
MR. ROMULO. But constitutional
the Commissioner's convention would
amendment does Commissioner Davide also reaffirmed that his modified require a higher
not prevent the amendment strictly confines initiative to AMENDMENTS to number. Moreover,
legislature from — NOT REVISION of — the Constitution. Thus: just to submit the
asking another body issue of calling a
to set the constitutional
MR. DAVIDE. With convention, a
proposition in
pleasure, Madam majority of the
proper form.
President.
National Assembly
is required, the
MR. DAVIDE. The import being that
MR. MAAMBONG.
Commissioner is
My first question: the process of
correct. In other amendment must
Commissioner
words, the be made more
Davide's proposed
implementation of
amendment on line rigorous and difficult
this particular right than probably
1 refers to
would be subject to initiating an ordinary
"amendment." Does
legislation, provided
it not cover the word legislation or putting
the legislature an end to a law
"revision" as defined
cannot determine proposed by the
by Commissioner
National Assembly BY AT LEAST There is, of course, no other better way for Congress to
by way of a THREE PERCENT implement the exercise of the right than through the passage
referendum. I OF THE of a statute or legislative act. This is the essence or rationale
cannot agree to REGISTERED of the last minute amendment by the Constitutional
reducing the VOTERS Commission to substitute the last paragraph of Section 2 of
requirement THEREOF. NO Article XVII then reading:
approved by the AMENDMENT
Committee on the UNDER THIS
The Congress 45 shall by law provide for
Legislative because SECTION SHALL
the implementation of the exercise of
it would require BE AUTHORIZED
this right.
another voting by WITHIN FIVE
the Committee, and YEARS
the voting as FOLLOWING THE with
precisely based on RATIFICATION OF
a requirement of 10 THIS
percent. Perhaps, I CONSTITUTION The Congress shall provide for the
implementation of the exercise of this
might present such NOR OFTENER
a proposal, by way THAN ONCE right.
of an amendment, EVERY FIVE
when the YEARS This substitute amendment was an investiture on
Commission shall THEREAFTER. Congress of a power to provide for the rules
take up the Article implementing the exercise of the right. The "rules"
on the Legislative or means "the details on how [the right] is to be
THE NATIONAL
on the National carried out." 46
ASSEMBLY SHALL
Assembly on
BY LAW PROVIDE
plenary sessions. 39
FOR THE We agree that R.A. No. 6735 was, as its history reveals,
IMPLEMENTATION intended to cover initiative to propose amendments to the
The Davide modified amendments to Section 2 were OF THE EXERCISE Constitution. The Act is a consolidation of House Bill No.
subjected to amendments, and the final version, which the OF THIS RIGHT. 40 21505 and Senate Bill No. 17. The former was prepared by
Commission approved by a vote of 31 in favor and 3 against, the Committee on Suffrage and Electoral Reforms of the
reads as follows: House of Representatives on the basis of two House Bills
The entire proposed Article on Amendments or
Revisions was approved on second reading on 9 referred to it, viz., (a) House Bill No. 497, 47 which dealt with
MR. DAVIDE. July 1986. 41Thereafter, upon his motion for the initiative and referendum mentioned
in Sections 1 and 32 of Article VI of the Constitution; and (b)
Thank you Madam reconsideration, Commissioner Gascon was
President. Section allowed to introduce an amendment to Section 2 House Bill No. 988, 48 which dealt with the subject matter of
2, as amended, which, nevertheless, was withdrawn. In view House Bill No. 497, as well as with initiative and referendum
under Section 3 of Article X (Local Government) and
reads as follows: thereof, the Article was again approved on Second
"AMENDMENT TO and Third Readings on 1 August 1986. 42 initiative provided for in Section 2 of Article XVII of the
THIS Constitution. Senate Bill No. 17 49 solely dealt with initiative
and referendum concerning ordinances or resolutions of
CONSTITUTION
However, the Committee on Style recommended that the local government units. The Bicameral Conference
MAY LIKEWISE BE
approved Section 2 be amended by changing "percent" Committee consolidated Senate Bill No. 17 and House Bill
DIRECTLY
to "per centum" and "thereof" to "therein" and deleting the No. 21505 into a draft bill, which was subsequently approved
PROPOSED BY
THE PEOPLE
phrase "by law" in the second paragraph so that said on 8 June 1989 by the Senate 50 and by the House of
paragraph reads: The Congress 43 shall provide for the Representatives. 51 This approved bill is now R.A. No. 6735.
THROUGH
implementation of the exercise of this right. 44 This
INITIATIVE UPON
amendment was approved and is the text of the present
A PETITION OF AT But is R.A. No. 6735 a full compliance with the power and
second paragraph of Section 2.
LEAST TWELVE duty of Congress to "provide for the implementation of the
PERCENT OF THE exercise of the right?"
TOTAL NUMBER The conclusion then is inevitable that, indeed, the system of
OF REGISTERED initiative on the Constitution under Section 2 of Article XVII of
VOTERS, OF the Constitution is not self-executory. A careful scrutiny of the Act yields a negative answer.
WHICH EVERY
LEGISLATIVE First. Contrary to the assertion of public respondent
Has Congress "provided" for the implementation of the
DISTRICT MUST COMELEC, Section 2 of the Act does not suggest an
BE exercise of this right? Those who answer the question in the
initiative on amendments to the Constitution. The said
REPRESENTED affirmative, like the private respondents and intervenor
Senator Roco, point to us R.A. No. 6735. section reads:
Sec. 2. Statement and Policy. — The c.2 the proposition; Sec. 3. Definition of terms —
power of the people under a system of
initiative and referendum to directly
c.3 the reason or reasons therefor; xxx xxx xxx
propose, enact, approve or reject, in
whole or in part, the Constitution, laws,
ordinances, or resolutions passed by c.4 that it is not one of the exceptions There are three (3) systems of initiative, namely:
any legislative body upon compliance provided therein;
with the requirements of this Act is
hereby affirmed, recognized and a.1 Initiative on the Constitution which
guaranteed. (Emphasis supplied). c.5 signatures of the petitioners or refers to a petition proposing
registered voters; and amendments to the Constitution;

The inclusion of the word "Constitution" therein


was a delayed afterthought. That word is neither c.6 an abstract or summary proposition a.2 Initiative on Statutes which refers to
is not more than one hundred (100) a petition proposing to enact a national
germane nor relevant to said section, which
exclusively relates to initiative and referendum on words which shall be legibly written or legislation; and
national laws and local laws, ordinances, and printed at the top of every page of the
petition. (Emphasis supplied).
resolutions. That section is silent as a.3 Initiative on local legislation which
to amendments on the Constitution. As pointed out refers to a petition proposing to enact a
earlier, initiative on the Constitution is confined The use of the clause "proposed laws sought to be regional, provincial, city, municipal, or
only to proposals to AMEND. The people are not enacted, approved or rejected, amended or barangay law, resolution or ordinance.
accorded the power to "directly propose, enact, repealed" only strengthens the conclusion that (Emphasis supplied).
approve, or reject, in whole or in part, the Section 2, quoted earlier, excludes initiative on
Constitution" through the system of initiative. They amendments to the Constitution.
can only do so with respect to "laws, ordinances, Hence, to complete the classification under subtitles there
or resolutions." should have been a subtitle on initiative on amendments to
Third. While the Act provides subtitles for National Initiative the Constitution. 53
and Referendum (Subtitle II) and for Local Initiative and
The foregoing conclusion is further buttressed by the fact Referendum (Subtitle III), no subtitle is provided
that this section was lifted from Section 1 of Senate Bill No. A further examination of the Act even reveals that the
for initiative on the Constitution. This conspicuous silence as
17, which solely referred to a statement of policy on local subtitling is not accurate. Provisions not germane to the
to the latter simply means that the main thrust of the Act is
initiative and referendum and appropriately used the phrases subtitle on National Initiative and Referendum are placed
initiative and referendum on national and local laws. If
"propose and enact," "approve or reject" and "in whole or in therein, like (1) paragraphs (b) and (c) of Section 9, which
Congress intended R.A. No. 6735 to fully provide for the
part." 52 reads:
implementation of the initiative on amendments to the
Constitution, it could have provided for a subtitle therefor,
Second. It is true that Section 3 (Definition of Terms) of the considering that in the order of things, the primacy of (b) The proposition in an initiative on the
Act defines initiative on amendments to the Constitution and interest, or hierarchy of values, the right of the people to Constitution approved by the majority of
mentions it as one of the three systems of initiative, and that directly propose amendments to the Constitution is far more the votes cast in the plebiscite shall
important than the initiative on national and local laws. become effective as to the day of the
Section 5 (Requirements) restates the constitutional
requirements as to the percentage of the registered voters plebiscite.
who must submit the proposal. But unlike in the case of the We cannot accept the argument that the initiative on
other systems of initiative, the Act does not provide for the amendments to the Constitution is subsumed under the (c) A national or local
contents of a petition for initiative on the Constitution. subtitle on National Initiative and Referendum because it is initiative proposition approved by
Section 5, paragraph (c) requires, among other things, national in scope. Our reading of Subtitle II (National majority of the votes cast in an election
statement of the proposed law sought to be enacted, Initiative and Referendum) and Subtitle III (Local Initiative called for the purpose shall become
approved or rejected, amended or repealed, as the case and Referendum) leaves no room for doubt that the effective fifteen (15) days after
may be. It does not include, as among the contents of the classification is not based on the scope of the initiative certification and proclamation of the
petition, the provisions of the Constitution sought to be involved, but on its nature and character. It is "national Commission. (Emphasis supplied).
amended, in the case of initiative on the Constitution. Said initiative," if what is proposed to be adopted or enacted is
paragraph (c) reads in full as follows: a national law, or a law which only Congress can pass. It is
"local initiative" if what is proposed to be adopted or enacted (2) that portion of Section 11 (Indirect Initiative) referring to
is a law, ordinance, or resolution which only the legislative indirect initiative with the legislative bodies of local
(c) The petition shall state the following: governments; thus:
bodies of the governments of the autonomous regions,
provinces, cities, municipalities, and barangays can pass.
c.1 contents or text of the proposed This classification of initiative into national and local is Sec. 11. Indirect Initiative. — Any duly
law sought to be enacted, approved or actually based on Section 3 of the Act, which we quote for accredited people's organization, as
rejected, amended or repealed, as the emphasis and clearer understanding: defined by law, may file a petition for
case may be; indirect initiative with the House of
Representatives, and other legislative (a) The preliminary requirement as to the number of The foregoing brings us to the conclusion that R.A. No. 6735
bodies. . . . signatures of registered voters for the petition; is incomplete, inadequate, or wanting in essential terms and
conditions insofar as initiative on amendments to the
Constitution is concerned. Its lacunae on this substantive
and (3) Section 12 on Appeal, since it applies to (b) The submission of the petition to the local legislative body
matter are fatal and cannot be cured by "empowering" the
decisions of the COMELEC on the findings of concerned;
COMELEC "to promulgate such rules and regulations as
sufficiency or insufficiency of the petition for
may be necessary to carry out the purposes of [the] Act. 58
initiative or referendum, which could be petitions
(c) The effect of the legislative body's failure to favorably act
for both national and local initiative and
thereon, and the invocation of the power of initiative as a
referendum. The rule is that what has been delegated, cannot be
consequence thereof;
delegated or as expressed in a Latin maxim: potestas
delegata non delegari potest. 59 The recognized exceptions
Upon the other hand, Section 18 on "Authority of Courts"
(d) The formulation of the proposition; to the rule are as follows:
under subtitle III on Local Initiative and Referendum is
misplaced, 54 since the provision therein applies to both
national and local initiative and referendum. It reads: (e) The period within which to gather the signatures; (1) Delegation of tariff powers to the President under Section
28(2) of Article VI of the Constitution;
Sec. 18. Authority of Courts. — Nothing (f) The persons before whom the petition shall be signed;
in this Act shall prevent or preclude the (2) Delegation of emergency powers to the President under
proper courts from declaring null and Section 23(2) of Article VI of the Constitution;
void any proposition approved pursuant (g) The issuance of a certification by the COMELEC through
its official in the local government unit concerned as to
to this Act for violation of the
whether the required number of signatures have been (3) Delegation to the people at large;
Constitution or want of capacity of the
local legislative body to enact the said obtained;
measure. (4) Delegation to local governments; and
(h) The setting of a date by the COMELEC for the
submission of the proposition to the registered voters for
Curiously, too, while R.A. No. 6735 exerted utmost diligence (5) Delegation to administrative bodies. 60
their approval, which must be within the period specified
and care in providing for the details in the implementation of
initiative and referendum on national and local legislation therein;
thereby giving them special attention, it failed, rather Empowering the COMELEC, an administrative body
exercising quasi-judicial functions, to promulgate rules and
intentionally, to do so on the system of initiative on (i) The issuance of a certification of the result;
amendments to the Constitution. Anent the initiative on regulations is a form of delegation of legislative authority
national legislation, the Act provides for the following: under no. 5 above. However, in every case of permissible
(j) The date of effectivity of the approved proposition; delegation, there must be a showing that the delegation itself
is valid. It is valid only if the law (a) is complete in itself,
(a) The required percentage of registered voters to sign the setting forth therein the policy to be executed, carried out, or
petition and the contents of the petition; (k) The limitations on local initiative; and implemented by the delegate; and (b) fixes a standard — the
limits of which are sufficiently determinate and determinable
(l) The limitations upon local legislative bodies. 56 — to which the delegate must conform in the performance of
(b) The conduct and date of the initiative;
his functions. 61 A sufficient standard is one which defines
legislative policy, marks its limits, maps out its boundaries
(c) The submission to the electorate of the proposition and Upon the other hand, as to initiative on amendments to the and specifies the public agency to apply it. It indicates the
the required number of votes for its approval; Constitution, R.A. No. 6735, in all of its twenty-three circumstances under which the legislative command is to be
sections, merely (a) mentions, the word "Constitution" in effected. 62
Section 2; (b) defines "initiative on the Constitution" and
(d) The certification by the COMELEC of the approval of the includes it in the enumeration of the three systems of
proposition; initiative in Section 3; (c) speaks of "plebiscite" as the Insofar as initiative to propose amendments to the
process by which the proposition in an initiative on the Constitution is concerned, R.A. No. 6735 miserably failed to
Constitution may be approved or rejected by the people; (d) satisfy both requirements in subordinate legislation. The
(e) The publication of the approved proposition in the Official
reiterates the constitutional requirements as to the number of delegation of the power to the COMELEC is then invalid.
Gazette or in a newspaper of general circulation in the
voters who should sign the petition; and (e) provides for the
Philippines; and
date of effectivity of the approved proposition. III
(f) The effects of the approval or rejection of the
There was, therefore, an obvious downgrading of the more
proposition. 55 COMELEC RESOLUTION NO. 2300, INSOFAR
important or the paramount system of initiative. RA. No. AS IT PRESCRIBES RULES AND
6735 thus delivered a humiliating blow to the system of REGULATIONS ON THE CONDUCT OF
As regards local initiative, the Act provides for the following: initiative on amendments to the Constitution by merely
INITIATIVE ON AMENDMENTS TO THE
paying it a reluctant lip service. 57 CONSTITUTION, IS VOID.
It logically follows that the COMELEC cannot validly Since the Delfin Petition is not the initiatory petition under The Temporary Restraining Order issued on 18 December
promulgate rules and regulations to implement the exercise R.A. No. 6735 and COMELEC Resolution No. 2300, it 1996 is made permanent as against the Commission on
of the right of the people to directly propose amendments to cannot be entertained or given cognizance of by the Elections, but is LIFTED as against private respondents.
the Constitution through the system of initiative. It does not COMELEC. The respondent Commission must have known
have that power under R.A. No. 6735. Reliance on the that the petition does not fall under any of the actions or
Resolution on the matter of contempt is hereby reserved.
COMELEC's power under Section 2(1) of Article IX-C of the proceedings under the COMELEC Rules of Procedure or
Constitution is misplaced, for the laws and regulations under Resolution No. 2300, for which reason it did not assign
referred to therein are those promulgated by the COMELEC to the petition a docket number. Hence, the said petition was SO ORDERED.
under (a) Section 3 of Article IX-C of the Constitution, or (b) merely entered as UND, meaning, undocketed. That petition
a law where subordinate legislation is authorized and which was nothing more than a mere scrap of paper, which should
Narvasa, C.J., Regalado, Romero, Bellosillo, Kapunan,
satisfies the "completeness" and the "sufficient standard" not have been dignified by the Order of 6 December 1996,
tests. the hearing on 12 December 1996, and the order directing Hermosisima, Jr. and Torres, Jr., JJ., concur.
Delfin and the oppositors to file their memoranda or
oppositions. In so dignifying it, the COMELEC acted without Padilla, J., took no part.
IV
jurisdiction or with grave abuse of discretion and merely
wasted its time, energy, and resources.
COMELEC ACTED WITHOUT JURISDICTION
OR WITH GRAVE ABUSE OF DISCRETION IN
The foregoing considered, further discussion on the issue of
ENTERTAINING THE DELFIN PETITION.
whether the proposal to lift the term limits of elective national
and local officials is an amendment to, and not a revision of,
Even if it be conceded ex gratia that R.A. No. 6735 is a full the Constitution is rendered unnecessary, if not academic. Separate Opinions
compliance with the power of Congress to implement the
right to initiate constitutional amendments, or that it has
CONCLUSION
validly vested upon the COMELEC the power of subordinate PUNO, J., concurring and dissenting:
legislation and that COMELEC Resolution No. 2300 is valid,
the COMELEC acted without jurisdiction or with grave abuse This petition must then be granted, and the COMELEC
of discretion in entertaining the Delfin Petition. should be permanently enjoined from entertaining or taking I join the ground-breaking ponencia of our esteemed
cognizance of any petition for initiative on amendments to colleague, Mr. Justice Davide insofar as it orders the
the Constitution until a sufficient law shall have been validly COMELEC to dismiss the Delfin petition. I regret, however, I
Under Section 2 of Article XVII of the Constitution and cannot share the view that R.A. No. 5735 and COMELEC
enacted to provide for the implementation of the system.
Section 5(b) of R.A. No. 6735, a petition for initiative on the Resolution No. 2300 are legally defective and cannot
Constitution must be signed by at least 12% of the total implement the people's initiative to amend the Constitution. I
number of registered voters of which every legislative district We feel, however, that the system of initiative to propose likewise submit that the petition with respect to the Pedrosas
is represented by at least 3% of the registered voters therein. amendments to the Constitution should no longer be kept in has no leg to stand on and should be dismissed. With due
The Delfin Petition does not contain signatures of the the cold; it should be given flesh and blood, energy and respect:
required number of voters. Delfin himself admits that he has strength. Congress should not tarry any longer in complying
not yet gathered signatures and that the purpose of his with the constitutional mandate to provide for the
petition is primarily to obtain assistance in his drive to gather implementation of the right of the people under that system. I
signatures. Without the required signatures, the petition
cannot be deemed validly initiated.
WHEREFORE, judgment is hereby rendered First, I submit that R.A. No. 6735 sufficiently implements the
right of the people to initiate amendments to the Constitution
The COMELEC acquires jurisdiction over a petition for thru initiative. Our effort to discover the meaning of R.A. No.
a) GRANTING the instant petition; 6735 should start with the search of the intent of our
initiative only after its filing. The petition then is the initiatory
pleading. Nothing before its filing is cognizable by the lawmakers. A knowledge of this intent is critical for the intent
COMELEC, sitting en banc. The only participation of the b) DECLARING R.A. No. 6735 inadequate to cover the of the legislature is the law and the controlling factor in its
COMELEC or its personnel before the filing of such petition system of initiative on amendments to the Constitution, and interpretation.1 Stated otherwise, intent is the essence of the
are (1) to prescribe the form of the petition; 63 (2) to issue to have failed to provide sufficient standard for subordinate law, the spirit which gives life to its enactment.2
through its Election Records and Statistics Office a certificate legislation;
on the total number of registered voters in each legislative
Significantly, the majority decision concedes that ". . . R.A.
district; 64 (3) to assist, through its election registrars, in the No. 6735 was intended to cover initiative to propose
c) DECLARING void those parts of Resolution No. 2300 of
establishment of signature stations; 65 and (4) to verify, amendments to the Constitution." It ought to be so for this
through its election registrars, the signatures on the basis of the Commission on Elections prescribing rules and
regulations on the conduct of initiative or amendments to the intent is crystal clear from the history of the law which was a
the registry list of voters, voters' affidavits, and voters' consolidation of House Bill No. 215053 and Senate Bill No.
Constitution; and
identification cards used in the immediately preceding 17.4 Senate Bill No. 17 was entitled "An Act Providing for a
election. 66
System of Initiative and Referendum and the Exception
d) ORDERING the Commission on Elections to forthwith Therefrom, Whereby People in Local Government Units Can
DISMISS the DELFIN petition (UND-96-037). Directly Propose and Enact Resolutions and Ordinances or
Approve or Reject any Ordinance or Resolution Passed by powers are given to the people Mr. Roco explained that in certain
the Local Legislative Body." Beyond doubt, Senate Bill No. expressly. Section 32 of the same American states, the kind of laws to
17 did not include people's initiative to propose amendments Article mandates Congress to pass at which initiative and referendum apply is
to the Constitution. In checkered contrast, House Bill No. the soonest possible time, a bill on also without limitation, except for
21505 5expressly included people's initiative to amend the referendum and initiative, and to share emergency measures, which are
Constitution. Congressman (now Senator) Raul Roco its legislative powers with the people. likewise incorporated in House Bill No.
emphasized in his sponsorship remarks:6 21505. He added that the procedure
provided by the Bill from the filing of the
Section 2, Article XVII of the 1987
petition, the requirements of a certain
xxx xxx xxx Constitution, on the other hand, vests in
percentage of supporters to present a
the people the power to directly propose
proposition, to the submission to
amendments to the Constitution through
SPONSORSHIP REMARKS OF MR. electors are substantially similar to the
initiative, upon petition of at least 12
ROCO provisions in American laws. Although
percent of the total number of registered
an infant in Philippine political structure,
voters.
the system of initiative and referendum,
At the outset, Mr. Roco provided the he said, is a tried and tested system in
following backgrounder on the
Stating that House Bill No. 21505 is the other jurisdictions, and the Bill is
constitutional basis of the proposed patterned after American experience.
Committee's response to the duty
measure.
imposed on Congress to implement the
exercise by the people of the right to
He further explained that the bill has
1. As cited in Vera vs. Avelino (1946), initiative and referendum, Mr. Roco
only 12 sections, and recalled that the
the presidential system which was recalled the beginnings of the system of
Constitutional Commissioners saw the
introduced by the 1935 Constitution saw initiative and referendum under
system of the initiative and referendum
the application of the principle of Philippine Law. He cited Section 99 of
as an instrument which can be used
separation of powers. the Local Government Code which vests
should the legislature show itself to be
in the barangay assembly the power to
indifferent to the needs of the people.
initiate legislative processes, decide the
2. While under the parliamentary system This is the reason, he claimed, why now
holding of plebiscite and hear reports of
of the 1973 Constitution the principle is an opportune time to pass the Bill
the Sangguniang Barangay, all of which
remained applicable, the 1981 even as he noted the felt necessity of
are variations of the power of initiative
amendments to the Constitution of 1973 the times to pass laws which are
and referendum. He added that the
ensured presidential dominance over necessary to safeguard individual rights
holding of barangay plebiscites and
the Batasang Pambansa. and liberties.
referendum are likewise provided in
Sections 100 and 101 of the same
Constitutional history then saw the Code. At this juncture Mr. Roco explained the
shifting and sharing of legislative powers process of initiative and referendum as
between the Legislature and the advocated in House Bill No. 21505. He
Thereupon, for the sake of brevity, Mr.
Executive departments. Transcending stated that:
Roco moved that pertinent quotation on
changes in the exercise of legislative the subject which he will later submit to
power is the declaration in the Philippine the Secretary of the House be 1. Initiative means that the people, on
Constitution that the Philippines is a
incorporated as part of his sponsorship their own political judgment, submit a Bill
republican state where sovereignty speech. for the consideration of the general
resides in the people and all sovereignty electorate.
emanates from them.
He then cited examples of initiative and
referendum similar to those contained in 2. The instant Bill provides three kinds of
3. Under the 1987 Constitution, the the instant Bill among which are the initiative, namely; the initiative to amend
lawmaking power is still preserved in
constitutions of states in the United the Constitution once every five years;
Congress; however, to institutionalize States which recognize the right of the initiative to amend statutes approved
direct action of the people as registered voters to initiate the by Congress; and the initiative to amend
exemplified in the 1986 Revolution, the
enactment of any statute or to project local ordinances.
Constitution recognizes the power of the any existing law or parts thereof in a
people, through the system of initiative referendum. These states, he said, are
and referendum. 3. The instant Bill gives a definite
Alaska, Alabama, Montana,
procedure and allows the Commission
Massachusets, Dakota, Oklahoma,
on Elections (COMELEC) to define rules
As cited in Section 1, Article VI of the Oregon, and practically all other states.
and regulations on the power of
1987 Constitution, Congress does not
initiative.
have plenary powers since reserve
4. Referendum means that the the streets. A substantial segment of the CHAIRMAN
legislators seek the consent of the population feels, he said, that the form GONZALES. But at
people on measures that they have of democracy is there, but not the reality any rate, as I have
approved. or substance of it because of the said, because this is
increasingly elitist approach of their new in our political
representatives to the country's problem. system, the Senate
5. Under Section 4 of the Bill the people
decided on a more
can initiate a referendum which is a
cautious approach
mode of plebiscite by presenting a Whereupon, Mr. Escudero pointed out
and limiting it only
petition therefor, but under certain that the Constitution has provided a
to the local
limitations, such as the signing of said means whereby the people can exercise
government units
petition by at least 10 percent of the total the reserved power of initiative to
because even with
of registered voters at which every propose amendments to the
that stage where . .
legislative district is represented by at Constitution, and requested that
. at least this has
least three percent of the registered Sections 1 and 32, Article VI; Section 3,
been quite popular,
voters thereof. Within 30 days after Article X; and Section 2, Article XVII of
ano? It has been
receipt of the petition, the COMELEC the Constitution be made part of his
attempted on a
shall determine the sufficiency of the sponsorship remarks.
national basis.
petition, publish the same, and set the
Alright. There has
date of the referendum within 45 to 90-
Mr. Escudero also stressed that an not been a single
day period.
implementing law is needed for the attempt. Now, so,
aforecited Constitutional provisions. kami limitado doon.
6. When the matter under referendum or While the enactment of the Bill will give And, second, we
initiative is approved by the required way to strong competition among cause- consider also that it
number of votes, it shall become oriented and sectoral groups, he is only fair that the
effective 15 days following the continued, it will hasten the politization local legislative
completion of its publication in the of the citizenry, aid the government in body should be
Official Gazette. forming an enlightened public opinion, given a chance to
and produce more responsive adopt the legislation
legislation. The passage of the Bill will bill proposed, right?
In concluding his sponsorship remarks, Iyong sinasabing
also give street parliamentarians the
Mr. Roco stressed that the Members indirect system of
opportunity to articulate their ideas in a
cannot ignore the people's call for initiative. If after all,
democratic forum, he added.
initiative and referendum and urged the
the local legislative
Body to approve House Bill No. 21505. assembly or body is
Mr. Escudero stated that he and Mr. willing to adopt it in
Roco hoped for the early approval of the
At this juncture, Mr. Roco also full or in toto, there
Bill so that it can be initially used for the ought to be any
requested that the prepared text of his
Agrarian Reform Law. He said that the reason for initiative,
speech together with the footnotes be
passage of House Bill No. 21505 will
reproduced as part of the Congressional ano for initiative.
show that the Members can set aside And, number 3, we
Records.
their personal and political consideration feel that there
for the greater good of the people.
should be some
The same sentiment as to the bill's intent to limitation on the
implement people's initiative to amend the frequency with
The disagreeing provisions in Senate Bill No. 17
Constitution was stressed by then Congressman which it should be
and House Bill No. 21505 were threshed out in a
(now Secretary of Agriculture) Salvador Escudero
Bicameral Conference Committee.8 In the meeting applied. Number 4,
III in his sponsorship remarks, viz:7
of the Committee on June 6, 1989,9 the members na the people, thru
agreed that the two (2) bills should be initiative, cannot
xxx xxx xxx consolidated and that the consolidated version enact any ordinance
should include people's initiative to amend the that is beyond the
Constitution as contemplated by House Bill No. scope of authority of
SPONSORSHIP REMARKS OF MR. ESCUDERO 21505. The transcript of the meeting states: the local legislative
body, otherwise, my
Mr. Escudero first pointed out that the God, mag-aassume
xxx xxx xxx sila ng power that is
people have been clamoring for a truly
popular democracy ever since, broader and greater
especially in the so-called parliament of than the grant of
legislative power to Huwag na nating ironically provided
the Sanggunians. pagusapan. Now, if for local initiative
And Number 5, you insist, really and referendum and
because of that, iyong features ng the House
then a proposition national at saka Representatives
which has been the constitutional, okay. correctly provided
result of a ____ gagawin na for initiative and
successful initiative natin na referendum on the
can only carry the consolidation of Constitution and on
force and effect of both bills. national legislation.
an ordinance and
therefore that
HON. ROCO. Yes, I move that we
should not deprive
we shall approve the
the court of its
consolidate. consolidated bill.
jurisdiction to
declare it null and
void for want of CHAIRMAN MR. ALBANO. Mr.
authority. Ha, di ba? GONZALES. Speaker.
I mean it is beyond Consolidation of the
powers of local Senate and House
THE SPEAKER
government units to Bill No. so and so. 10
enact. Iyon ang PRO TEMPORE.
What is the
main essence
namin, so we When the consolidated bill was presented to the pleasure of the
concentrated on House for approval, then Congressman Roco Minority Floor
upon interpellation by Congressman Rodolfo Leader?
that. And that is why
. . . so ang sa inyo Albano, again confirmed that it covered people's
naman includes initiative to amend the Constitution. The record of
MR. ALBANO. Will
iyon sa Constitution, the House Representative states: 11
the distinguished
amendment to the sponsor answer just
Constitution eh . . . xxx xxx xxx a few questions?
national laws. Sa
amin, if you insist
on that, alright, THE SPEAKER THE SPEAKER
although we feel na PRO TEMPORE. PRO TEMPORE.
it will in effect The Gentleman The Gentlemen will
become a dead from Camarines Sur please proceed.
statute. Alright, and is recognized.
we can agree, we MR. ALBANO. I
can agree. So ang MR. ROCO. On the heard the sponsor
mangyayari dito, Conference say that the only
and magiging basic Committee Report difference in the two
nito, let us not on the disagreeing bills was that in the
discuss anymore provisions between Senate version
kung alin and Senate Bill No. there was a
magiging basic bill, 21505 which refers provision for local
ano, whether it is to the system initiative and
the Senate Bill or providing for the referendum,
whether it is the initiative and whereas the House
House bill. Logically referendum, version has none.
it should be ours fundamentally, Mr.
sapagkat una iyong Speaker, we
sa amin eh. It is one MR. ROCO. In fact,
consolidated the
of the first bills the Senate version
Senate and the
approved by the provide purely for
House versions, so
Senate kaya ang local initiative and
both versions are
number niyan, referendum,
totally intact in the
makikita mo, 17, eh. whereas in the
bill. The Senators
House version, we
provided purely for MR. ROCO. That is Is there any objection? (Silence. The
national and correct, Mr. Chair hears none; the motion is
constitutional Speaker. For approved.
legislation. constitutional
amendments in the
Since it is crystalline that the intent of R.A. No.
1987 Constitution, it
MR. ALBANO. Is it 6735 is to implement the people's initiative to
is every five years.
our understanding amend the Constitution, it is our bounden duty to
therefore, that the interpret the law as it was intended by the
two provisions were MR. ALBANO. For legislature. We have ruled that once intent is
incorporated? every five years, Mr. ascertained, it must be enforced even if it may not
Speaker? be consistent with the strict letter of the law and
this ruling is as old as the mountain. We have also
MR. ROCO. Yes,
held that where a law is susceptible of more than
Mr. Speaker. MR. ROCO. Within
one interpretation, that interpretation which will
five years, we
most tend to effectuate the manifest intent of the
cannot have
MR. ALBANO. So legislature will be adopted. 12
multiple initiatives
that we will now
and referenda.
have a complete
The text of R.A. No. 6735 should therefore be reasonably
initiative and
construed to effectuate its intent to implement the people's
referendum both in MR. ALBANO.
initiative to amend the Constitution. To be sure, we need not
the constitutional Therefore, basically,
torture the text of said law to reach the conclusion that it
amendment and there was no
implements people's initiative to amend the Constitution.
national legislation. substantial
R.A. No. 6735 is replete with references to this prerogative of
difference between
the people.
the two versions?
MR. ROCO. That is
correct.
First, the policy statement declares:
MR. ROCO. The
gaps in our bill were
MR. ALBANO. And
filled by the Senate Sec. 2. Statement of Policy. — The
provincial as well as
which, as I said power of the people under a system of
municipal
earlier, ironically initiative and referendum to directly
resolutions?
was about local, propose, enact, approve or reject, in
provincial and whole or in part, the Constitution, laws,
MR. ROCO. Down municipal ordinances, or resolutions passed by
to barangay, Mr. legislation. any legislative body upon compliance
Speaker. with the requirements of this Act is
hereby affirmed, recognized and
MR. ALBANO. And
guaranteed. (emphasis supplied)
MR. ALBANO. And the two bills were
this initiative and consolidated?
referendum is in Second, the law defines "initiative" as "the power of the
consonance with people to propose amendments to the constitution or to
MR. ROCO. Yes,
the provision of the propose and enact legislations through an election called for
Mr. Speaker.
Constitution the purpose," and "plebiscite" as "the electoral process by
whereby it which an initiative on the Constitution is approved or rejected
mandates this MR. ALBANO. by the people.
Congress to enact Thank you, Mr.
the enabling law, so Speaker.
Third, the law provides the requirements for a petition for
that we shall have a
initiative to amend the Constitution. Section 5(b) states that
system which can
APPROVAL OF C.C.R. "(a) petition for an initiative on the 1987 Constitution must
be done every five
ON S.B. NO. 17 AND H.B. NO. 21505 have at least twelve per centum (12%) of the total number of
years. Is it five
(The Initiative and Referendum Act) registered voters as signatories, of which every legislative
years in the
district must be represented by at least threeper
provision of the
centum (3%) of the registered voters therein." It also states
Constitution? THE SPEAKER PRO TEMPORE. There that "(i)nitiative on the Constitution may be exercised only
was a motion to approve this after five (5) years from the ratification of the 1987
consolidated bill on Senate Bill No. 17
Constitution and only once every five (5) years thereafter.
and House Bill No. 21505.
Finally, R.A. No. 6735 fixes the effectivity date of the and regulations as may be necessary to carry out the "The power of the people under a system of initiative and
amendment. Section 9(b) states that "(t)he proposition in an purposes of this Act." By no means can this delegation of referendum to directly propose, enact, approve or reject, in
initiative on the Constitution approved by a majority of the power be assailed as infirmed. In the benchmark case whole or in part, the Constitution, laws, ordinances, or
votes cast in the plebiscite shall become effective as to the of Pelaez v. Auditor General, 17 this Court, thru former Chief resolutions passed by any legislative body upon compliance
day of the plebiscite. Justice Roberto Concepcion laid down the test to determine with the requirements of this Act is hereby affirmed,
whether there is undue delegation of legislative power, viz: recognized and guaranteed." Spread out all over R.A. No.
6735 are the standards to canalize the delegated power to
It is unfortunate that the majority decision resorts to a
the COMELEC to promulgate rules and regulations from
strained interpretation of R.A. No. 6735 to defeat its intent xxx xxx xxx
overflowing. Thus, the law states the number of signatures
which it itself concedes is to implement people's initiative to
necessary to start a people's initiative, 18 directs how
propose amendments to the Constitution. Thus, it laments
Although Congress may delegate to initiative proceeding is commenced, 19 what the COMELEC
that the word "Constitution" is neither germane nor relevant
another branch of the Government the should do upon filing of the petition for initiative, 20 how a
to the policy thrust of section 2 and that the statute's
power to fill details in the execution, proposition is approved, 21 when a plebiscite may be
subtitling is not accurate. These lapses are to be expected
enforcement or administration of a law, it held, 22 when the amendment takes effect 23 and what
for laws are not always written in impeccable English.
is essential, to forestall a violation of the matters may not be the subject of any initiative. 24 By any
Rightly, the Constitution does not require our legislators to
principle of separation of powers, that measure, these standards are adequate.
be word-smiths with the ability to write bills with poetic
said law: (a) be complete in itself — it
commas like Jose Garcia Villa or in lyrical prose like Winston
must set forth therein the policy to be
Churchill. But it has always been our good policy not to Former Justice Isagani A. Cruz, similarly elucidated that "a
executed, carried out or implemented by
refuse to effectuate the intent of a law on the ground that it is sufficient standard is intended to map out the boundaries of
the delegate — and (b) to fix standard
badly written. As the distinguished Vicente the delegates' authority by defining the legislative policy and
— the limits of which are sufficiently
Francisco 13 reminds us: "Many laws contain words which indicating the circumstances under which it is to be pursued
determinate or determinable — to which
have not been used accurately. But the use of inapt or and effected. The purpose of the sufficient standard is to
the delegate must conform in the
inaccurate language or words, will not vitiate the statute if the prevent a total transference of legislative power from the
performance of his functions. Indeed,
legislative intention can be ascertained. The same is equally lawmaking body to the delegate." 25 In enacting R.A. No.
without a statutory declaration of policy,
true with reference to awkward, slovenly, or ungrammatical 6735, it cannot be said that Congress totally transferred its
which is the essence of every law, and,
expressions, that is, such expressions and words will be power to enact the law implementing people's initiative to
without the aforementioned standard,
construed as carrying the meaning the legislature intended COMELEC. A close look at COMELEC Resolution No. 2300
there would be no means to determine,
that they bear, although such a construction necessitates a will show that it merely provided the procedure to effectuate
with reasonable certainty, whether the
departure from the literal meaning of the words used. the policy of R.A. No. 6735 giving life to the people's initiative
delegate has acted within or beyond the
to amend the Constitution. The debates 26 in the
scope of his authority. Hence, he could
Constitutional Commission make it clear that the rules of
In the same vein, the argument that R.A. No. 7535 does not thereby arrogate upon himself the
procedure to enforce the people's initiative can be delegated,
include people's initiative to amend the Constitution simply power, not only to make the law, but,
thus:
because it lacks a sub-title on the subject should be given also — and this is worse — to unmake
the weight of helium. Again, the hoary rule in statutory it, by adopting measures inconsistent
construction is that headings prefixed to titles, chapters and with the end sought to be attained by the MR. ROMULO.
sections of a statute may be consulted in aid of Act of Congress, thus nullifying the Under
interpretation, but inferences drawn therefrom are entitled to principle of separation of powers and the Commissioner
very little weight, and they can never control the plain terms system of checks and balances, and, Davide's
of the enacting clauses. 14 consequently, undermining the very amendment, it is
foundation of our republican system. possible for the
legislature to set
All said, it is difficult to agree with the majority decision that
forth certain
refuses to enforce the manifest intent or spirit of R.A. No. Section 68 of the Revised Administrative
procedures to carry
6735 to implement the people's initiative to amend the Code does not meet these well-settled
out the initiative. . .
Constitution. It blatantly disregards the rule cast in concrete requirements for a valid delegation of
?
that the letter of the law must yield to its spirit for the letter of the power to fix the details in the
the law is its body but its spirit is its soul. 15 enforcement of a law. It does not
enunciate any policy to be carried out or MR. DAVIDE. It
implemented by the President. Neither can.
II
does it give a standard sufficiently
precise to avoid the evil effects above
xxx xxx xxx
COMELEC Resolution No. 2300, 16 promulgated under the referred to.
stewardship of Commissioner Haydee Yorac, then its Acting
Chairman, spelled out the procedure on how to exercise the MR. ROMULO. But
R.A. No. 6735 sufficiently states the policy and the standards
people's initiative to amend the Constitution. This is in accord the Commissioner's
to guide the COMELEC in promulgating the law's
with the delegated power granted by section 20 of R.A. No. amendment does
implementing rules and regulations of the law. As
6735 to the COMELEC which expressly states: "The not prevent the
aforestated, section 2 spells out the policy of the law; viz:
Commission is hereby empowered to promulgate such rules legislature from
asking another body against the legislature is to impair the substantive regard and respect to the legislature, a co-equal
to set the right of the people to initiate amendments to the and coordinate branch of government, should
proposition in Constitution. It is not, however, prohibited from counsel this Court to refrain from refusing to
proper form. legislating the procedure to enforce the people's effectuate laws unless they are clearly
right of initiative or to delegate it to another body unconstitutional.
like the COMELEC with proper standard.
MR. DAVIDE. The
Commissioner is III
correct. In other A survey of our case law will show that this Court has
words, the prudentially refrained from invalidating administrative rules
It is also respectfully submitted that the petition should he
implementation of on the ground of lack of adequate legislative standard to
dismissed with respect to the Pedrosas. The inclusion of the
this particular right guide their promulgation. As aptly perceived by former
Pedrosas in the petition is utterly baseless. The records
would be subject to Justice Cruz, "even if the law itself does not expressly
show that the case at bar started when respondent Delfin
legislation, provided pinpoint the standard, the courts will bend backward to
alone and by himself filed with the COMELEC a Petition to
the legislature locate the same elsewhere in order to spare the statute, if it
Amend the Constitution to Lift Term Limits of Elective
cannot determine can, from constitutional infirmity." 28 He cited the ruling
Officials by People's Initiative. The Pedrosas did not join the
anymore the in Hirabayashi v. United States, 29 viz:
petition. It was Senator Roco who moved to intervene and
percentage of the
was allowed to do so by the COMELEC. The petition was
requirement.
xxx xxx xxx heard and before the COMELEC could resolve the Delfin
petition, the case at bar was filed by the petitioners with this
MR. DAVIDE. As Court. Petitioners sued the COMELEC. Jesus Delfin, Alberto
It is true that the Act does not in terms
long as it will not Pedrosa and Carmen Pedrosa in their capacities as founding
establish a particular standard to which
destroy the members of the People's Initiative for Reform, Modernization
orders of the military commander are to
substantive right to and Action (PIRMA). The suit is an original action for
conform, or require findings to be made
initiate. In other prohibition with prayer for temporary restraining order and/or
as a prerequisite to any order. But the
words, none of the writ of preliminary injunction.
Executive Order, the Proclamations and
procedures to be
the statute are not to be read in isolation
proposed by the
from each other. They were parts of a The petition on its face states no cause of action against the
legislative body
single program and must be judged as Pedrosas. The only allegation against the Pedrosas is that
must diminish or
such. The Act of March 21, 1942, was they are founding members of the PIRMA which proposes to
impair the right
an adoption by Congress of the undertake the signature drive for people's initiative to amend
conceded here.
Executive Order and of the the Constitution. Strangely, the PIRMA itself as an
Proclamations. The Proclamations organization was not impleaded as a respondent. Petitioners
MR. ROMULO. In themselves followed a standard then prayed that we order the Pedrosas ". . . to desist from
that provision of the authorized by the Executive Order — conducting a signature drive for a people's initiative to
Constitution can the the necessity of protecting military amend the Constitution." On December 19, 1996, we
procedures which I resources in the designated areas temporarily enjoined the Pedrosas ". . . from conducting a
have discussed be against espionage and sabotage. signature drive for people's initiative to amend the
legislated? Constitution." It is not enough for the majority to lift the
temporary restraining order against the Pedrosas. It should
In the case at bar, the policy and the standards are
dismiss the petition and all motions for contempt against
MR. DAVIDE. Yes. bright-lined in R.A. No. 6735. A 20-20 look at the
them without equivocation.
law cannot miss them. They were not written by
our legislators in invisible ink. The policy and
In his book, The Intent of the 1986 Constitution
standards can also be found in no less than One need not draw a picture to impart the proposition that in
Writers, 27 Father Bernas likewise affirmed: "In
section 2, Article XVII of the Constitution on soliciting signatures to start a people's initiative to amend the
response to questions of Commissioner Romulo,
Amendments or Revisions. There is thus no Constitution the Pedrosas are not engaged in any criminal
Davide explained the extent of the power of the
reason to hold that the standards provided for in act. Their solicitation of signatures is a right guaranteed in
legislature over the process: it could for instance,
R.A. No. 6735 are insufficient for in other cases we black and white by section 2 of Article XVII of the
prescribe the 'proper form before (the amendment)
have upheld as adequate more general standards Constitution which provides that ". . . amendments to this
is submitted to the people,' it could authorize
such as "simplicity and dignity," 30 "public Constitution may likewise be directly proposed by the people
another body to check the proper form. It could
interest," 31 "public welfare," 32 "interest of law and through initiative. . ." This right springs from the principle
also authorize the COMELEC, for instance, to
order," 33 "justice and equity,"34 "adequate and proclaimed in section 1, Article II of the Constitution that in a
check the authenticity of the signatures of
efficient instruction," 35 "public safety," 36 "public democratic and republican state "sovereignty resides in the
petitioners. Davide concluded: 'As long as it will
policy", 37 "greater national interest", 38 "protect the people and all government authority emanates from them."
not destroy the substantive right to initiate. In other
local consumer by stabilizing and subsidizing The Pedrosas are part of the people and their voice is part of
words, none of the procedures to be proposed by
domestic pump rates", 39 and "promote simplicity, the voice of the people. They may constitute but a particle of
the legislative body must diminish or impair the
economy and efficiency in government." 40 A due
right conceded here.'" Quite clearly, the prohibition
our sovereignty but no power can trivialize them for tribunal of the people. Thus far, we have succeeded in The Delfin petition is thus utterly deficient. Instead of
sovereignty is indivisible. transforming people power from an opaque abstraction to a complying with the constitutional imperatives, the petition
robust reality. The Constitution calls us to encourage people would rather have much of its burden passed on, in effect, to
empowerment to blossom in full. The Court cannot halt any the COMELEC. The petition would require COMELEC to
But this is not all. Section 16 of Article XIII of the Constitution
and all signature campaigns to amend the Constitution schedule "signature gathering all over the country," to cause
provides: "The right of the people and their organizations to
without setting back the flowering of people empowerment. the necessary publication of the petition "in newspapers of
effective and reasonable participation at all levels of social,
More important, the Court cannot seal the lips of people who general and local circulation," and to instruct "Municipal
political and economic decision-making shall not be
are pro-change but not those who are anti-change without Election Registrars in all Regions of the Philippines to assist
abridged. The State shall by law, facilitate the establishment
concerting the debate on charter change into a sterile petitioners and volunteers in establishing signing stations at
of adequate consultation mechanisms." This is another novel
talkaton. Democracy is enlivened by a dialogue and not by a the time and on the dates designated for the purpose.
provision of the 1987 Constitution strengthening the sinews
monologue for in a democracy nobody can claim any
of the sovereignty of our people. In soliciting signatures to
infallibility.
amend the Constitution, the Pedrosas are participating in the I submit, even then, that the TRO earlier issued by the Court
political decision-making process of our people. The which, consequentially, is made permanent under
Constitution says their right cannot be abridged without any Melo and Mendoza, JJ., concur. theponencia should be held to cover only the Delfin petition
ifs and buts. We cannot put a question mark on their right. and must not be so understood as having intended or
contemplated to embrace the signature drive of the
Pedrosas. The grant of such a right is clearly implicit in the
Over and above these new provisions, the Pedrosas'
constitutional mandate on people initiative.
campaign to amend the Constitution is an exercise of their
VITUG, J., concurring and dissenting:
freedom of speech and expression and their right to petition
the government for redress of grievances. We have The distinct greatness of a democratic society is that those
memorialized this universal right in all our fundamental laws The COMELEC should have dismissed, outrightly, the Delfin who reign are the governed themselves. The postulate is no
from the Malolos Constitution to the 1987 Constitution. We Petition. longer lightly taken as just a perceived myth but a veritable
have iterated and reiterated in our rulings that freedom of reality. The past has taught us that the vitality of government
speech is a preferred right, the matrix of other important lies not so much in the strength of those who lead as in the
rights of our people. Undeniably, freedom of speech It does seem to me that there is no real exigency on the part consent of those who are led. The role of free speech is
of the Court to engross, let alone to commit, itself on all the
enervates the essence of the democratic creed of think and pivotal but it can only have its true meaning if it comes with
let think. For this reason, the Constitution encourages issues raised and debated upon by the parties. What is the correlative end of being heard.
speech even if it protects the speechless. essential at this time would only be to resolve whether or not
the petition filed with the COMELEC, signed by Atty. Jesus
S. Delfin in his capacity as a "founding member of the Pending a petition for a people's initiative that is sufficient in
It is thus evident that the right of the Pedrosas to solicit Movement for People's Initiative" and seeking through a form and substance, it behooves the Court, I most
signatures to start a people's initiative to amend the people initiative certain modifications on the 1987 respectfully submit, to yet refrain from resolving the question
Constitution does not depend on any law, much less on R.A. Constitution, can properly be regarded and given its due of whether or not Republic Act No. 6735 has effectively and
6735 or COMELEC Resolution No. 2300. No law, no course. The Constitution, relative to any proposed sufficiently implemented the Constitutional provision on right
Constitution can chain the people to an undesirable status amendment under this method, is explicit. Section 2, Article of the people to directly propose constitutional amendments.
quo. To be sure, there are no irrepealable laws just as there XVII, thereof provides: Any opinion or view formulated by the Court at this point
are no irrepealable Constitutions. Change is the predicate of would at best be only a non-binding, albeitpossibly
progress and we should not fear change. Mankind has long persuasive, obiter dictum.
recognized the truism that the only constant in life is change Sec. 2. Amendments to this Constitution
and so should the majority. may likewise be directly proposed by the
people through initiative upon a petition I vote for granting the instant petition before the Court and
of at least twelve per centum of the total for clarifying that the TRO earlier issued by the Court did not
IV number of registered voters, of which prescribe the exercise by the Pedrosas of their right to
every legislative district must be campaign for constitutional amendments.
represented by at least three per
In a stream of cases, this Court has rhapsodized people
centum of the registered voters therein.
power as expanded in the 1987 Constitution. On October 5,
No amendment under this section shall
1993, we observed that people's might is no longer a myth
be authorized within five years following
but an article of faith in our Constitution. 41 On September 30,
the ratification of this Constitution nor FRANCISCO, J., dissenting and concurring:
1994, we postulated that people power can be trusted to
oftener than once every five years
check excesses of government and that any effort to
thereafter.
trivialize the effectiveness of people's initiatives ought to be There is no question that my esteemed colleague Mr. Justice
rejected. 42 On September 26, 1996, we pledged that ". . . Davide has prepared a scholarly and well-written ponencia.
this Court as a matter of policy and doctrine will exert every The Congress shall provide for the Nonetheless, I cannot fully subscribe to his view that R. A.
effort to nurture, protect and promote their legitimate implementation of the exercise of this No. 6735 is inadequate to cover the system of initiative on
exercise." 43 Just a few days ago, or on March 11, 1997, by a right. amendments to the Constitution.
unanimous decision, 44 we allowed a recall election in
Caloocan City involving the mayor and ordered that he
submits his right to continue in office to the judgment of the
To begin with, sovereignty under the constitution, resides in A petition for an initiative on the 1987 correctly provided
the people and all government authority emanates from Constitution must have at least for initiative and
them.1 Unlike our previous constitutions, the present 1987 twelve per centum (12%) of the total referendum an the
Constitution has given more significance to this declaration number of the registered voters as Constitution and on
of principle for the people are now vested with power not signatories, of which every legislative national legislation.
only to propose, enact or reject any act or law passed by district must be represented by at least
Congress or by the local legislative body, but to propose three per centum (3%) of the registered
I move that we
amendments to the constitution as well.2 To implement these voters therein. Initiative on the
approve the
constitutional edicts, Congress in 1989 enacted Republic Act constitution may be exercised only after
consolidated bill.
No. 6735, otherwise known as "The initiative and five (5) years from the ratification of the
Referendum Act". This law, to my mind, amply covers an 1987 Constitution and only once every
initiative on the constitution. The contrary view maintained by five years thereafter. MR. ALBANO, Mr.
petitioners is based principally on the alleged lack of sub-title Speaker.
in the law on initiative to amend the constitution and on their
These provisions were inserted, on purpose, by
allegation that:
Congress the intent being to provide for the THE SPEAKER
implementation of the right to propose an PRO TEMPORE.
Republic Act No. 6735 provides for the amendment to the Constitution by way of initiative. What is the
effectivity of the law after publication in "A legal provision", the Court has previously said, pleasure of the
print media. [And] [t]his indicates that "must not be construed as to be a useless Minority Floor
Republic Act No. 6735 covers only laws surplusage, and accordingly, meaningless, in the Leader?
and not constitutional amendments, sense of adding nothing to the law or having no
because constitutional amendments effect whatsoever thereon". 8 That this is the
MR. ALBANO. Will
take effect upon ratification not after legislative intent is further shown by the
publication.3 deliberations in Congress, thus: the distinguished
sponsor answer just
a few questions?
which allegation manifests petitioners' selective . . . More significantly, in the course of
interpretation of the law, for under Section 9 of the consideration of the Conference
Republic Act No. 6735 on the Effectivity of Committee Report on the disagreeing THE SPEAKER
Initiative or Referendum Proposition paragraph (b) provisions of Senate Bill No. 17 and PRO TEMPORE.
thereof is clear in providing that: House Bill No. 21505, it was noted: What does the
sponsor say?

The proposition in an initiative on the constitution approved MR. ROCO. On the


by a majority of the votes cast in the plebiscite shall become Conference MR. ROCO.
effective as to the day of the plebiscite. Committee Report Willingly, Mr.
on the disagreeing Speaker.
provisions between
It is a rule that every part of the statute must be interpreted
Senate Bill No. 17 THE SPEAKER
with reference the context, i.e., that every part of the statute
and the PRO TEMPORE.
must be construed together with the other parts and kept
consolidated House The Gentleman will
subservient to the general intent of the whole
Bill No. 21505 please proceed.
enactment. 4 Thus, the provisions of Republic Act No. 6735
which refers to the
may not be interpreted in isolation. The legislative intent
system providing for
behind every law is to be extracted from the statute as a MR. ALBANO. I
the initiative and
whole.5 heard the sponsor
referendum,
fundamentally, Mr. say that the only
In its definition of terms, Republic Act No. 6735 defines Speaker, we difference in the two
consolidated the bills was that in the
initiative as "the power of the people to propose
amendments to the constitution or to propose and enact Senate and the Senate version
legislations through an election called for the purpose".6The House versions, so there was a
both versions are provision for local
same section, in enumerating the three systems of initiative,
included an "initiative on the constitution which refers to a totally intact in the initiative and
petition proposing amendments to the bill. The Senators referendum,
whereas the House
constitution"7 Paragraph (e) again of Section 3 defines ironically provided
"plebiscite" as "the electoral process by which an initiative on for local initiative version has none.
the constitution is approved or rejected by the people" And and referendum and
as to the material requirements for an initiative on the the House of MR. ROCO. In fact,
Constitution, Section 5(b) distinctly enumerates the following: Representatives the Senate version
provided purely for MR. ROCO. That is 1987 Constitution and only once every
local initiative and correct, Mr. five (5) years thereafter.
referendum, Speaker. For
whereas in the constitutional
Here private respondents' petition is
House version, we amendments to the
unaccompanied by the required signatures. This
provided purely for 1987 Constitution, it
defect notwithstanding, it is without prejudice to
national and is every five years."
the refiling of their petition once compliance with
constitutional (Id. [Journal and
the required percentage is satisfactorily shown by
legislation. Record of the
private respondents. In the absence, therefore, of
House of
an appropriate petition before the Commission on
Representatives],
MR. ALBANO. Is it Elections, any determination of whether private
Vol. VIII, 8 June
our understanding, respondents' proposal constitutes an amendment
1989, p. 960;
therefore, that the or revision is premature.
quoted in Garcia v.
two provisions were
Comelec, 237
incorporated?
SCRA 279, 292-293 ACCORDINGLY, I take exception to the conclusion reached
[1994]; emphasis in the ponencia that R.A. No. 6735 is an "inadequate"
MR. ROCO. Yes, supplied) legislation to cover a people's initiative to propose
Mr. Speaker. amendments to the Constitution. I, however, register my
concurrence with the dismissal, in the meantime, of private
. . . The Senate version of the Bill may
respondents' petition for initiative before public respondent
MR. ALBANO. So not have comprehended initiatives on
Commission on Elections until the same be supported by
that we will now the Constitution. When consolidated,
proof of strict compliance with Section 5 (b) of R.A. No.
have a complete though, with the House version of the
6735.
initiative and Bill and as approved and enacted into
referendum both in law, the proposal included initiative on
the constitutional both the Constitution and ordinary laws.9 Melo and Mendoza, JJ., concur.
amendment and
national legislation.
Clearly then, Republic Act No. 6735 covers an
initiative on the constitution. Any other construction
MR. ROCO. That is as what petitioners foist upon the Court constitute
PANGANIBAN, J., concurring and dissenting:
correct. a betrayal of the intent and spirit behind the
enactment.
Our distinguished colleague, Mr. Justice Hilario G. Davide
MR. ALBANO. And
At any rate, I agree with the ponencia that the Commission Jr., writing for the majority, holds that:
provincial as well as
municipal on Elections, at present, cannot take any action (such as
resolutions? those contained in the Commission's orders dated December (1) The Comelec acted without jurisdiction or with grave
6, 9, and 12, 1996 [Annexes B, C and B-1]) indicative of its abuse of discretion in entertaining the "initiatory" Delfin
having already assumed jurisdiction over private Petition.
MR. ROCO. Down respondents' petition. This is so because from the tenor of
to barangay, Mr.
Section 5 (b) of R.A. No. 6735 it would appear that proof of
Speaker. procurement of the required percentage of registered voters (2) While the Constitution allows amendments to "be directly
at the time the petition for initiative is filed, is a jurisdictional proposed by the people through initiative," there is no
requirement. implementing law for the purpose. RA 6735 is "incomplete,
MR. ALBANO. And
inadequate, or wanting in essential terms and conditions
this initiative and
insofar as initiative on amendments to the Constitution is
referendum is in Thus: concerned."
consonance with
the provision of the
Constitution to A petition for an initiative on the 1987 (3) Comelec Resolution No. 2330, "insofar as it prescribes
enact the enabling Constitution must have at least rules and regulations on the conduct of initiative on
law, so that we shall twelve per centum (12%) of the total amendments to the Constitution, is void."
have a system number of registered voters as
which can be done signatories, of which every legislative
every five years. Is district must be represented by at least I concur with the first item above. Until and unless an
three per centum (3%) of the registered initiatory petition can show the required number of signatures
it five years in the
provision of the voters therein. Initiative on the — in this case, 12% of all the registered voters in the
Constitution? Constitution may be exercised only after Philippines with at least 3% in every legislative district — no
five (5) years from the ratification of the public funds may be spent and no government resources
may be used in an initiative to amend the Constitution. amendments to the Constitution. Such views, which I shall certainly, it would be tyrannical and despotic to stop anyone
Verily, the Comelec cannot even entertain any petition no longer repeat nor elaborate on, are thoroughly consistent from speaking freely and persuading others to conform to
absent such signatures. However, I dissent most respectfully with this Court's unanimous en banc rulings in Subic Bay his/her beliefs. As the eminent Voltaire once said, "I may
from the majority's two other rulings. Let me explain. Metropolitan Authority vs. Commission on Elections, 2 that disagree with what you say, but I will defend to the death
"provisions for initiative . . . are (to be) liberally construed to your right to say it." After all, freedom is not really for the
effectuate their purposes, to facilitate and not hamper the thought we agree with, but as Justice Holmes wrote,
Under the above restrictive holdings espoused by the Court's
exercise by the voters of the rights granted thereby"; and "freedom for the thought that we hate."5
majority, the Constitution cannot be amended at all through a
in Garcia vs. Comelec, 3 that any "effort to trivialize the
people's initiative. Not by Delfin, not by Pirma, not by
effectiveness of people's initiatives ought to be rejected."
anyone, not even by all the voters of the country acting Epilogue
together. This decision will effectively but unnecessarily
curtail, nullify, abrogate and render inutile the people's right No law can completely and absolutely cover all
By way of epilogue, let me stress the guiding tenet of my
to change the basic law. At the very least, the majority holds administrative details. In recognition of this, RA 6735 wisely
Separate Opinion. Initiative, like referendum and recall, is a
the right hostage to congressional discretion on whether to empowered 4 the Commission on Election "to promulgate
new and treasured feature of the Filipino constitutional
pass a new law to implement it, when there is already one such rules and regulations as may be necessary to carry out
system. All three are institutionalized legacies of the world-
existing at present. This right to amend through initiative, it the purposes of this Act." And pursuant thereto, the Comelec
admired EDSA people power. Like elections and plebiscites,
bears stressing, is guaranteed by Section 2, Article XVII of issued its Resolution 2300 on 16 January 1991. Such
they are hallowed expressions of popular sovereignty. They
the Constitution, as follows: Resolution, by its very words, was promulgated "to govern
are sacred democratic rights of our people to be used as
the conduct of initiative on the Constitution and initiative and
their final weapons against political excesses, opportunism,
referendum on national and local laws," not by the incumbent
Sec. 2. Amendments to this Constitution inaction, oppression and misgovernance; as well as their
Commission on Elections but by one then composed of
may likewise be directly proposed by the reserved instruments to exact transparency, accountability
Acting Chairperson Haydee B. Yorac, Comms. Alfredo E.
people through initiative upon a petition and faithfulness from their chosen leaders. While on the one
Abueg Jr., Leopoldo L. Africa, Andres R. Flores, Dario C.
of at least twelve per centum of the total hand, their misuse and abuse must be resolutely struck
Rama and Magdara B. Dimaampao. All of these
number of registered voters, of which down, on the other, their legitimate exercise should be
Commissioners who signed Resolution 2300 have retired
every legislative district must be carefully nurtured and zealously protected.
from the Commission, and thus we cannot ascribe any vile
represented by at least three per
motive unto them, other than an honest, sincere and
centum of the registered voters therein.
exemplary effort to give life to a cherished right of our WHEREFORE, I vote to GRANT the petition of Sen. Miriam
No amendment under this section shall
people. D. Santiago et al. and to DIRECT Respondent Commission
be authorized within five years following
on Elections to DISMISS the Delfin Petition on the ground of
the ratification of this Constitution nor
prematurity, but not on the other grounds relied upon by the
oftener than once every five years The majority argues that while Resolution 2300 is valid in
majority. I also vote to LIFT the temporary restraining order
thereafter. regard to national laws and local legislations, it is void in
issued on 18 December 1996 insofar as it prohibits Jesus
reference to constitutional amendments. There is no basis
Delfin, Alberto Pedrosa and Carmen Pedrosa from
for such differentiation. The source of and authority for the
With all due respect, I find the majority's position all too exercising their right to free speech in proposing
Resolution is the same law, RA 6735.
sweeping and all too extremist. It is equivalent to burning the amendments to the Constitution.
whole house to exterminate the rats, and to killing the patient
to relieve him of pain. What Citizen Delfin wants the I respectfully submit that taken together and interpreted
G.R. No. 174153 October 25, 2006
Comelec to do we should reject. But we should not thereby properly and liberally, the Constitution (particularly Art. XVII,
preempt any future effort to exercise the right of Sec. 2), R4 6735 and Comelec Resolution 2300 provide
initiative correctly and judiciously. The fact that the Delfin more than sufficient authority to implement, effectuate and RAUL L. LAMBINO and ERICO B. AUMENTADO,
Petition proposes a misuse of initiative does not justify a ban realize our people's power to amend the Constitution. TOGETHER WITH 6,327,952 REGISTERED
against its proper use. Indeed, there is a right way to do the VOTERS,Petitioners,
right thing at the right time and for the right reason. vs.
Petitioner Delfin and the Pedrosa
THE COMMISSION ON ELECTIONS, Respondent.
Spouses Should Not Be Muzzled
Taken Together and Interpreted Properly, the
Constitution, RA 6735 and Comelec Resolution x--------------------------------------------------------x
I am glad the majority decided to heed our plea to lift the
2300 Are Sufficient to Implement Constitutional
temporary restraining order issued by this Court on 18
Initiatives
December 1996 insofar as it prohibited Petitioner Delfin and ALTERNATIVE LAW GROUPS, INC., Intervenor.
the Spouses Pedrosa from exercising their right of initiative.
While RA 6735 may not be a perfect law, it was — as the In fact, I believe that such restraining order as against private
majority openly concedes — intended by the legislature to respondents should not have been issued, in the first place. x ------------------------------------------------------ x
cover and, I respectfully submit, it contains enough While I agree that the Comelec should be stopped from
provisions to effectuate an initiative on the Constitution.1 I using public funds and government resources to help them ONEVOICE INC., CHRISTIAN S.MONSOD, RENE B.
completely agree with the inspired and inspiring opinions of gather signatures, I firmly believe that this Court has no AZURIN, MANUEL L. QUEZON III, BENJAMIN T.
Mr. Justice Reynato S. Puno and Mr. Justice Ricardo J. power to restrain them from exercising their right of initiative. TOLOSA, JR., SUSAN V. OPLE, and CARLOS P.
Francisco that RA 6735, the Roco law on initiative, The right to propose amendments to the Constitution is really MEDINA, JR., Intervenors.
sufficiently implements the right of the people to initiate a species of the right of free speech and free assembly. And
x------------------------------------------------------ x x ------------------------------------------------------- x MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR.,
and RENE A.V. SAGUISAG, Petitioners,
vs.
ATTY. PETE QUIRINO QUADRA, Intervenor. RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, and
COMMISSION ON ELECTIONS, represented by Chairman
RUELO BAYA, Intervenors.
BENJAMIN S. ABALOS, SR., and Commissioners
x--------------------------------------------------------x RESURRECCION Z. BORRA, FLORENTINO A. TUASON,
x -------------------------------------------------------- x JR., ROMEO A. BRAWNER, RENE V. SARMIENTO,
NICODEMO T. FERRER, and John Doe and Peter
BAYAN represented by its Chairperson Dr. Carolina Doe,, Respondent.
Pagaduan-Araullo, BAYAN MUNA represented by its PHILIPPINE TRANSPORT AND GENERAL WORKERS
Chairperson Dr. Reynaldo Lesaca, KILUSANG MAYO ORGANIZATION (PTGWO) and MR. VICTORINO F.
UNO represented by its Secretary General Joel BALAIS, Intervenors.
Maglunsod, HEAD represented by its Secretary General
Dr. Gene Alzona Nisperos, ECUMENICAL BISHOPS DECISION
x -------------------------------------------------------- x
FORUM represented by Fr. Dionito Cabillas, MIGRANTE
represented by its Chairperson Concepcion Bragas-
Regalado, GABRIELA represented by its Secretary SENATE OF THE PHILIPPINES, represented by its
General Emerenciana de Jesus, GABRIELA WOMEN'S President, MANUEL VILLAR, JR., Intervenor.
CARPIO, J.:
PARTY represented by Sec. Gen. Cristina Palabay,
ANAKBAYAN represented by Chairperson Eleanor de
Guzman, LEAGUE OF FILIPINO STUDENTS represented x ------------------------------------------------------- x The Case
by Chair Vencer Crisostomo Palabay, JOJO PINEDA of
the League of Concerned Professionals and SULONG BAYAN MOVEMENT FOUNDATION,
These are consolidated petitions on the Resolution dated 31
Businessmen, DR. DARBY SANTIAGO of the Solidarity INC., Intervenor.
August 2006 of the Commission on Elections ("COMELEC")
of Health Against Charter Change, DR. REGINALD
denying due course to an initiative petition to amend the
PAMUGAS of Health Action for Human
x ------------------------------------------------------- x 1987 Constitution.
Rights,Intervenors.

JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA. Antecedent Facts


x--------------------------------------------------------x
TANYA KARINA A. LAT, ANTONIO L. SALVADOR, and
RANDALL TABAYOYONG, Intervenors.
On 15 February 2006, petitioners in G.R. No. 174153,
LORETTA ANN P. ROSALES, MARIO JOYO AGUJA, and
namely Raul L. Lambino and Erico B. Aumentado ("Lambino
ANA THERESA HONTIVEROS-BARAQUEL,Intervenors.
x -------------------------------------------------------- x Group"), with other groups1 and individuals, commenced
gathering signatures for an initiative petition to change the
x--------------------------------------------------------x 1987 Constitution. On 25 August 2006, the Lambino Group
INTEGRATED BAR OF THE PHILIPPINES, CEBU CITY filed a petition with the COMELEC to hold a plebiscite that
AND CEBU PROVINCE CHAPTERS, Intervenors. will ratify their initiative petition under Section 5(b) and
ARTURO M. DE CASTRO, Intervenor.
(c)2 and Section 73 of Republic Act No. 6735 or the Initiative
x --------------------------------------------------------x and Referendum Act ("RA 6735").
x ------------------------------------------------------- x
SENATE MINORITY LEADER AQUILINO Q. PIMENTEL, The Lambino Group alleged that their petition had the
TRADE UNION CONGRESS OF THE JR. and SENATORS SERGIO R. OSMENA III, JAMBY support of 6,327,952 individuals constituting at least
PHILIPPINES, Intervenor. MADRIGAL, JINGGOY ESTRADA, ALFREDO S. LIM and twelve per centum (12%) of all registered voters, with each
PANFILO LACSON, Intervenors. legislative district represented by at least three per
centum (3%) of its registered voters. The Lambino Group
x---------------------------------------------------------x
also claimed that COMELEC election registrars had verified
x -----------------------------------------------------x the signatures of the 6.3 million individuals.
LUWALHATI RICASA ANTONINO, Intervenor.
JOSEPH EJERCITO ESTRADA and PWERSA NG The Lambino Group's initiative petition changes the 1987
MASANG PILIPINO, Intervenors. Constitution by modifying Sections 1-7 of Article VI
x ------------------------------------------------------- x
(Legislative Department)4 and Sections 1-4 of Article VII
x -----------------------------------------------------x (Executive Department)5 and by adding Article XVIII entitled
PHILIPPINE CONSTITUTION ASSOCIATION "Transitory Provisions."6 These proposed changes will shift
(PHILCONSA), CONRADO F. ESTRELLA, TOMAS C. the present Bicameral-Presidential system to a Unicameral-
TOLEDO, MARIANO M. TAJON, FROILAN M. G.R. No. 174299 October 25, 2006 Parliamentary form of government. The Lambino Group
BACUNGAN, JOAQUIN T. VENUS, JR., FORTUNATO P. prayed that after due publication of their petition, the
AGUAS, and AMADO GAT INCIONG, Intervenors.
COMELEC should submit the following proposition in a Various groups and individuals sought intervention, filing 1. The Initiative Petition Does Not Comply with Section
plebiscite for the voters' ratification: pleadings supporting or opposing the Lambino Group's 2, Article XVII of the Constitution on Direct Proposal by
petition. The supporting intervenors10 uniformly hold the view the People
that the COMELEC committed grave abuse of discretion in
DO YOU APPROVE THE AMENDMENT OF
relying on Santiago. On the other hand, the opposing
ARTICLES VI AND VII OF THE 1987 Section 2, Article XVII of the Constitution is the governing
intervenors11 hold the contrary view and maintain
CONSTITUTION, CHANGING THE FORM OF constitutional provision that allows a people's initiative to
that Santiago is a binding precedent. The opposing
GOVERNMENT FROM THE PRESENT propose amendments to the Constitution. This section
intervenors also challenged (1) the Lambino Group's
BICAMERAL-PRESIDENTIAL TO A states:
standing to file the petition; (2) the validity of the signature
UNICAMERAL-PARLIAMENTARY SYSTEM, AND
gathering and verification process; (3) the Lambino Group's
PROVIDING ARTICLE XVIII AS TRANSITORY
compliance with the minimum requirement for the Sec. 2. Amendments to this Constitution may
PROVISIONS FOR THE ORDERLY SHIFT FROM
percentage of voters supporting an initiative petition under likewise be directly proposed by the people
ONE SYSTEM TO THE OTHER?
Section 2, Article XVII of the 1987 Constitution;12 (4) the through initiative upon a petition of at least
nature of the proposed changes as revisions and not mere twelve per centum of the total number of
On 30 August 2006, the Lambino Group filed an Amended amendments as provided under Section 2, Article XVII of the registered voters of which every legislative district
Petition with the COMELEC indicating modifications in the 1987 Constitution; and (5) the Lambino Group's compliance must be represented by at least three per
proposed Article XVIII (Transitory Provisions) of their with the requirement in Section 10(a) of RA 6735 limiting centum of the registered voters therein. x x x x
initiative.7 initiative petitions to only one subject. (Emphasis supplied)

The Ruling of the COMELEC The Court heard the parties and intervenors in oral The deliberations of the Constitutional Commission vividly
arguments on 26 September 2006. After receiving the explain the meaning of an amendment "directly proposed
parties' memoranda, the Court considered the case by the people through initiative upon a petition," thus:
On 31 August 2006, the COMELEC issued its Resolution
submitted for resolution.
denying due course to the Lambino Group's petition for lack
of an enabling law governing initiative petitions to amend the MR. RODRIGO: Let us look at the mechanics. Let
Constitution. The COMELEC invoked this Court's ruling The Issues us say some voters want to propose a
in Santiago v. Commission on Elections8 declaring RA 6735 constitutional amendment. Is the draft of the
inadequate to implement the initiative clause on proposals to proposed constitutional amendment ready to
The petitions raise the following issues:
amend the Constitution.9 be shown to the people when they are asked to
sign?
1. Whether the Lambino Group's initiative petition complies
In G.R. No. 174153, the Lambino Group prays for the
with Section 2, Article XVII of the Constitution on
issuance of the writs of certiorari and mandamus to set aside MR. SUAREZ: That can be reasonably
amendments to the Constitution through a people's initiative;
the COMELEC Resolution of 31 August 2006 and to compel assumed, Madam President.
the COMELEC to give due course to their initiative petition.
The Lambino Group contends that the COMELEC committed 2. Whether this Court should revisit its ruling
MR. RODRIGO: What does the sponsor
grave abuse of discretion in denying due course to their in Santiago declaring RA 6735 "incomplete, inadequate or
mean? The draft is ready and shown to them
petition since Santiago is not a binding precedent. wanting in essential terms and conditions" to implement the
before they sign. Now, who prepares the draft?
Alternatively, the Lambino Group claims that Santiago binds initiative clause on proposals to amend the Constitution; and
only the parties to that case, and their petition deserves
cognizance as an expression of the "will of the sovereign MR. SUAREZ: The people themselves, Madam
3. Whether the COMELEC committed grave abuse of
people." President.
discretion in denying due course to the Lambino Group's
petition.
In G.R. No. 174299, petitioners ("Binay Group") pray that the MR. RODRIGO: No, because before they sign
Court require respondent COMELEC Commissioners to there is already a draft shown to them and they
The Ruling of the Court
show cause why they should not be cited in contempt for the are asked whether or not they want to propose this
COMELEC's verification of signatures and for "entertaining" constitutional amendment.
the Lambino Group's petition despite the permanent There is no merit to the petition.
injunction in Santiago. The Court treated the Binay Group's
petition as an opposition-in-intervention. MR. SUAREZ: As it is envisioned, any Filipino
The Lambino Group miserably failed to comply with the basic can prepare that proposal and pass it around
requirements of the Constitution for conducting a people's for signature.13 (Emphasis supplied)
In his Comment to the Lambino Group's petition, the Solicitor initiative. Thus, there is even no need to revisit Santiago, as
General joined causes with the petitioners, urging the Court the present petition warrants dismissal based alone on the
to grant the petition despite the Santiago ruling. The Clearly, the framers of the Constitution intended that the
Lambino Group's glaring failure to comply with the basic
"draft of the proposed constitutional amendment" should
Solicitor General proposed that the Court treat RA 6735 and requirements of the Constitution. For following the Court's
be "ready and shown" to the people "before" they sign such
its implementing rules "as temporary devises to implement ruling in Santiago, no grave abuse of discretion is
proposal. The framers plainly stated that "before they sign
the system of initiative." attributable to the Commision on Elections.
there is already a draft shown to them." The framers also
"envisioned" that the people should sign on the proposal signer having actually examined the petition, could arguments against their proposal. The proponents, or their
itself because the proponents must "prepare that proposal easily mislead the signer by, for example, omitting, supporters, often pay those who gather the signatures.
and pass it around for signature." downplaying, or even flatly misrepresenting,
portions of the petition that might not be to the
Thus, there is no presumption that the proponents observed
signer's liking. This danger seems particularly
The essence of amendments "directly proposed by the the constitutional requirements in gathering the signatures.
acute when, in this case, the person giving the
people through initiative upon a petition" is that the The proponents bear the burden of proving that they
description is the drafter of the petition, who
entire proposal on its face is a petition by the people. complied with the constitutional requirements in gathering
obviously has a vested interest in seeing that it
This means two essential elements must be present. First, the signatures - that the petition contained, or
gets the requisite signatures to qualify for the
the people must author and thus sign the entire proposal. No incorporated by attachment, the full text of the proposed
ballot.17 (Boldfacing and underscoring supplied)
agent or representative can sign on their behalf. Second, as amendments.
an initiative upon a petition, the proposal must be embodied
in a petition. Likewise, in Kerr v. Bradbury,18 the Court of Appeals of
The Lambino Group did not attach to their present petition
Oregon explained:
with this Court a copy of the paper that the people signed as
These essential elements are present only if the full text of their initiative petition. The Lambino Group submitted to this
the proposed amendments is first shown to the people who The purposes of "full text" provisions that apply to Court a copy of a signature sheet20 after the oral arguments
express their assent by signing such complete proposal in a amendments by initiative commonly are described of 26 September 2006 when they filed their Memorandum on
petition. Thus, an amendment is "directly proposed by in similar terms. x x x (The purpose of the full 11 October 2006. The signature sheet with this Court during
the people through initiative upon a petition" only if the text requirement is to provide sufficient the oral arguments was the signature sheet attached21 to the
people sign on a petition that contains the full text of the information so that registered voters can opposition in intervention filed on 7 September 2006 by
proposed amendments. intelligently evaluate whether to sign the intervenor Atty. Pete Quirino-Quadra.
initiative petition."); x x x (publication of full text
of amended constitutional provision required
The full text of the proposed amendments may be either The signature sheet attached to Atty. Quadra's opposition
because it is "essential for the elector to have x x x
written on the face of the petition, or attached to it. If so and the signature sheet attached to the Lambino Group's
the section which is proposed to be added to or
attached, the petition must state the fact of such attachment. Memorandum are the same. We reproduce below the
subtracted from. If he is to vote intelligently, he
This is an assurance that every one of the several millions of signature sheet in full:
must have this knowledge. Otherwise in many
signatories to the petition had seen the full text of the
instances he would be required to vote in the
proposed amendments before signing. Otherwise, it is
dark.") (Emphasis supplied) Province: City/Municipality:
physically impossible, given the time constraint, to prove that
every one of the millions of signatories had seen the full text Legislative District: Barangay:
of the proposed amendments before signing. Moreover, "an initiative signer must be informed at the time
of signing of the nature and effect of that which is
proposed" and failure to do so is "deceptive and
The framers of the Constitution directly borrowed 14 the
misleading" which renders the initiative void.19
concept of people's initiative from the United States where PROPOSITION: "DO YOU APPROVE OF THE
various State constitutions incorporate an initiative clause. In AMENDMENT OF ARTICLES VI AND VII OF THE 1987
almost all States15 which allow initiative petitions, the Section 2, Article XVII of the Constitution does not expressly CONSTITUTION, CHANGING THE FORM OF
unbending requirement is that the people must first see state that the petition must set forth the full text of the GOVERNMENT FROM THE PRESENT BICAMERAL-
the full text of the proposed amendments before they proposed amendments. However, the deliberations of the PRESIDENTIAL TO A UNICAMERAL-PARLIAMENTARY
sign to signify their assent, and that the people must framers of our Constitution clearly show that the framers SYSTEM OF GOVERNMENT, IN ORDER TO ACHIEVE
sign on an initiative petition that contains the full text of intended to adopt the relevant American jurisprudence on GREATER EFFICIENCY, SIMPLICITY AND ECONOMY IN
the proposed amendments.16 people's initiative. In particular, the deliberations of the GOVERNMENT; AND PROVIDING AN ARTICLE XVIII AS
Constitutional Commission explicitly reveal that the framers TRANSITORY PROVISIONS FOR THE ORDERLY SHIFT
intended that the people must first see the full text of the FROM ONE SYSTEM TO ANOTHER?"
The rationale for this requirement has been repeatedly
proposed amendments before they sign, and that the
explained in several decisions of various courts. Thus,
people must sign on a petition containing such full text.
in Capezzuto v. State Ballot Commission, the Supreme I hereby APPROVE the proposed amendment to the 1987
Indeed, Section 5(b) of Republic Act No. 6735, the Initiative
Court of Massachusetts, affirmed by the First Circuit Court Constitution. My signature herein which shall form part of the
and Referendum Act that the Lambino Group invokes as
of Appeals, declared: petition for initiative to amend the Constitution signifies my
valid, requires that the people must sign the "petition x x x
as signatories." support for the filing thereof.
[A] signature requirement would be
meaningless if the person supplying the
The proponents of the initiative secure the signatures from Precinct Name Address
signature has not first seen what it is that he or
the people. The proponents secure the signatures in their Number
she is signing. Further, and more importantly,
private capacity and not as public officials. The proponents
loose interpretation of the subscription requirement Last Name, First Name,
are not disinterested parties who can impartially explain the
can pose a significant potential for fraud. A person M.I.
advantages and disadvantages of the proposed
permitted to describe orally the contents of an 1
amendments to the people. The proponents present
initiative petition to a potential signer, without the
favorably their proposal to the people and do not present the
2 registered voter, for and on behalf of the Union prejudice to other pragmatic means to pursue the
3 of Local Authorities of the Philippines, as same;
shown by ULAP Resolution No. 2006-02 hereto
4 attached, and as representative of the mass of
5 WHEREFORE, BE IT RESOLVED AS IT IS
signatories hereto. (Emphasis supplied)
HEREBY RESOLVED, THAT ALL THE
6 MEMBER-LEAGUES OF THE UNION OF LOCAL
7 The Lambino Group failed to attach a copy of ULAP AUTHORITIES OF THE PHILIPPINES (ULAP)
8 Resolution No. 2006-02 to the present petition. However, the SUPPORT THE PORPOSALS (SIC) OF THE
9 "Official Website of the Union of Local Authorities of the PEOPLE'S CONSULATATIVE (SIC)
Philippines"22 has posted the full text of Resolution No. 2006- COMMISSION ON CHARTER CHANGE
10
02, which provides: THROUGH PEOPLE'S INITIATIVE AND
_________________ _________________ __________________ REFERENDUM AS A MODE OF AMENDING
Barangay Official Witness Witness THE 1987 CONSTITUTION;
RESOLUTION NO. 2006-02
(Print Name and Sign) (Print Name and Sign) (Print Name and Sign)
There is not a single word, phrase, or sentence of text of DONE, during the ULAP National Executive Board
RESOLUTION SUPPORTING THE PROPOSALS
the Lambino Group's proposed changes in the signature special meeting held on 14 January 2006 at the
OF THE PEOPLE'S CONSULTATIVE
sheet. Neither does the signature sheet state that the Century Park Hotel, Manila.23 (Underscoring
COMMISSION ON CHARTER CHANGE
text of the proposed changes is attached to it. Petitioner supplied)
THROUGH PEOPLE'S INITIATIVE AND
Atty. Raul Lambino admitted this during the oral arguments REFERENDUM AS A MODE OF AMENDING
before this Court on 26 September 2006. THE 1987 CONSTITUTION ULAP Resolution No. 2006-02 does not authorize petitioner
Aumentado to prepare the 25 August 2006 petition, or the 30
The signature sheet merely asks a question whether the August 2006 amended petition, filed with the COMELEC.
WHEREAS, there is a need for the Union of Local
people approve a shift from the Bicameral-Presidential to the ULAP Resolution No. 2006-02 "support(s) the porposals
Authorities of the Philippines (ULAP) to adopt a
Unicameral-Parliamentary system of government. The (sic) of the Consulatative (sic) Commission on Charter
common stand on the approach to support the
signature sheet does not show to the people the draft of Change through people's initiative and referendum as a
proposals of the People's Consultative
the proposed changes before they are asked to sign the mode of amending the 1987 Constitution." The proposals of
Commission on Charter Change;
signature sheet. Clearly, the signature sheet is not the the Consultative Commission24 are vastly different from the
"petition" that the framers of the Constitution envisioned proposed changes of the Lambino Group in the 25 August
when they formulated the initiative clause in Section 2, WHEREAS, ULAP maintains its unqualified 2006 petition or 30 August 2006 amended petition filed with
Article XVII of the Constitution. support to the agenda of Her Excellency President the COMELEC.
Gloria Macapagal-Arroyo for constitutional reforms
as embodied in the ULAP Joint Declaration for
Petitioner Atty. Lambino, however, explained that during the For example, the proposed revisions of the Consultative
Constitutional Reforms signed by the members of
signature-gathering from February to August 2006, the Commission affect all provisions of the existing
the ULAP and the majority coalition of the House
Lambino Group circulated, together with the signature Constitution, from the Preamble to the Transitory
of Representatives in Manila Hotel sometime in
sheets, printed copies of the Lambino Group's draft petition Provisions. The proposed revisions have profound impact
October 2005;
which they later filed on 25 August 2006 with the COMELEC. on the Judiciary and the National Patrimony provisions of the
When asked if his group also circulated the draft of their existing Constitution, provisions that the Lambino Group's
amended petition filed on 30 August 2006 with the WHEREAS, the People's Consultative proposed changes do not touch. The Lambino Group's
COMELEC, Atty. Lambino initially replied that they circulated Commission on Charter Change created by Her proposed changes purport to affect only Articles VI and VII of
both. However, Atty. Lambino changed his answer and Excellency to recommend amendments to the the existing Constitution, including the introduction of new
stated that what his group circulated was the draft of the 30 1987 Constitution has submitted its final report Transitory Provisions.
August 2006 amended petition, not the draft of the 25 August sometime in December 2005;
2006 petition. The ULAP adopted Resolution No. 2006-02 on 14 January
WHEREAS, the ULAP is mindful of the current 2006 or more than six months before the filing of the 25
The Lambino Group would have this Court believe that they political developments in Congress which militates August 2006 petition or the 30 August 2006 amended
prepared the draft of the 30 August 2006 amended against the use of the expeditious form of petition with the COMELEC. However, ULAP Resolution No.
petition almost seven months earlier in February amending the 1987 Constitution; 2006-02 does not establish that ULAP or the Lambino Group
2006 when they started gathering signatures. Petitioner caused the circulation of the draft petition, together with the
Erico B. Aumentado's "Verification/Certification" of the 25 signature sheets, six months before the filing with the
WHEREAS, subject to the ratification of its COMELEC. On the contrary, ULAP Resolution No. 2006-02
August 2006 petition, as well as of the 30 August 2006 institutional members and the failure of Congress
amended petition, filed with the COMELEC, states as casts grave doubt on the Lambino Group's claim that
to amend the Constitution as a constituent they circulated the draft petition together with the
follows: assembly, ULAP has unanimously agreed to signature sheets. ULAP Resolution No. 2006-02 does not
pursue the constitutional reform agenda through refer at all to the draft petition or to the Lambino Group's
I have caused the preparation of the foregoing People's Initiative and Referendum without proposed changes.
[Amended] Petition in my personal capacity as a
In their Manifestation explaining their amended petition Group alleged that they circulated "the petition for proposed changes to the great majority of the people
before the COMELEC, the Lambino Group declared: initiative" but failed to mention the amended petition. This who signed the signature sheets.
contradicts what Atty. Lambino finally stated during the oral
arguments that what they circulated was the draft of
After the Petition was filed, Petitioners belatedly Thus, of the 6.3 million signatories, only 100,000 signatories
the amended petition of 30 August 2006.
realized that the proposed amendments alleged in could have received with certainty one copy each of the
the Petition, more specifically, paragraph 3 of petition, assuming a 100 percent distribution with no
Section 4 and paragraph 2 of Section 5 of the The Lambino Group cites as authority Corpus Juris wastage. If Atty. Lambino and company attached one copy
Transitory Provisions were inaccurately stated and Secundum, stating that "a signer who did not read the of the petition to each signature sheet, only 100,000
failed to correctly reflect their proposed measure attached to a referendum petition cannot signature sheets could have circulated with the petition.
amendments. question his signature on the ground that he did not Each signature sheet contains space for ten signatures.
understand the nature of the act." The Lambino Group Assuming ten people signed each of these 100,000
quotes an authority that cites a proposed signature sheets with the attached petition, the maximum
The Lambino Group did not allege that they were amending
change attached to the petition signed by the people. number of people who saw the petition before they signed
the petition because the amended petition was what they
Even the authority the Lambino Group quotes requires that the signature sheets would not exceed 1,000,000.
had shown to the people during the February to August 2006
the proposed change must be attached to the petition. The
signature-gathering. Instead, the Lambino Group alleged that
same authority the Lambino Group quotes requires the
the petition of 25 August 2006 "inaccurately stated and failed With only 100,000 printed copies of the petition, it would be
people to sign on the petition itself.
to correctly reflect their proposed amendments." physically impossible for all or a great majority of the 6.3
million signatories to have seen the petition before they
Indeed, it is basic in American jurisprudence that the signed the signature sheets. The inescapable conclusion
The Lambino Group never alleged in the 25 August 2006
proposed amendment must be incorporated with, or attached is that the Lambino Group failed to show to the 6.3
petition or the 30 August 2006 amended petition with the
to, the initiative petition signed by the people. In the present million signatories the full text of the proposed changes.
COMELEC that they circulated printed copies of the draft
initiative, the Lambino Group's proposed changes were not If ever, not more than one million signatories saw the petition
petition together with the signature sheets. Likewise, the
incorporated with, or attached to, the signature sheets. The before they signed the signature sheets.
Lambino Group did not allege in their present petition before
Lambino Group's citation of Corpus Juris Secundumpulls the
this Court that they circulated printed copies of the draft
rug from under their feet.
petition together with the signature sheets. The signature In any event, the Lambino Group's signature sheets do not
sheets do not also contain any indication that the draft contain the full text of the proposed changes, either on the
petition is attached to, or circulated with, the signature It is extremely doubtful that the Lambino Group prepared, face of the signature sheets, or as attachment with an
sheets. printed, circulated, from February to August 2006 during the indication in the signature sheet of such
signature-gathering period, the draft of the petition or attachment. Petitioner Atty. Lambino admitted this during
amended petition they filed later with the COMELEC. The the oral arguments, and this admission binds the
It is only in their Consolidated Reply to the Opposition-in-
Lambino Group are less than candid with this Court in their Lambino Group. This fact is also obvious from a mere
Interventions that the Lambino Group first claimed that they
belated claim that they printed and circulated, together with reading of the signature sheet. This omission is fatal.
circulated the "petition for initiative filed with the COMELEC,"
the signature sheets, the petition or amended The failure to so include the text of the proposed changes in
thus:
petition. Nevertheless, even assuming the Lambino the signature sheets renders the initiative void for non-
Group circulated the amended petition during the compliance with the constitutional requirement that the
[T]here is persuasive authority to the effect signature-gathering period, the Lambino Group admitted amendment must be "directly proposed by the people
that "(w)here there is not (sic) fraud, a signer circulating only very limited copies of the petition. through initiative upon a petition." The signature sheet is
who did not read the measure attached to a not the "petition" envisioned in the initiative clause of the
referendum petition cannot question his Constitution.
During the oral arguments, Atty. Lambino expressly
signature on the ground that he did not
admitted that they printed only 100,000 copies of the
understand the nature of the act." [82 C.J.S.
draft petition they filed more than six months later with For sure, the great majority of the 6.3 million people who
S128h. Mo. State v. Sullivan, 224, S.W. 327, 283
the COMELEC. Atty. Lambino added that he also asked signed the signature sheets did not see the full text of the
Mo. 546.] Thus, the registered voters who
other supporters to print additional copies of the draft petition proposed changes before signing. They could not have
signed the signature sheets circulated together
but he could not state with certainty how many additional known the nature and effect of the proposed changes,
with the petition for initiative filed with the
copies the other supporters printed. Atty. Lambino could among which are:
COMELEC below, are presumed to have
only assure this Court of the printing of 100,000 copies
understood the proposition contained in the
because he himself caused the printing of these 100,000
petition. (Emphasis supplied) 1. The term limits on members of the
copies.
legislature will be lifted and thus members of
Parliament can be re-elected indefinitely;26
The Lambino Group's statement that they circulated to the
Likewise, in the Lambino Group's Memorandum filed on 11
people "the petition for initiative filed with the COMELEC"
October 2006, the Lambino Group expressly admits that
appears an afterthought, made after the intervenors 2. The interim Parliament can continue to function
"petitioner Lambino initiated the printing and
Integrated Bar of the Philippines (Cebu City Chapter and indefinitely until its members, who are almost all
reproduction of 100,000 copies of the petition for
Cebu Province Chapters) and Atty. Quadra had pointed out the present members of Congress, decide to call
initiative x x x."25 This admission binds the Lambino
that the signature sheets did not contain the text of the for new parliamentary elections. Thus,
Group and establishes beyond any doubt that the
proposed changes. In their Consolidated Reply, the Lambino the members of the interim Parliament will
Lambino Group failed to show the full text of the
determine the expiration of their own term of members of the House of Representatives to hold office Combining multiple propositions into one
office; 27 beyond their current three-year term of office, and possibly proposal constitutes "logrolling," which, if our
even beyond the five-year term of office of regular members judicial responsibility is to mean anything, we
of the Parliament. Certainly, this is contrary to the cannot permit. The very broadness of the
3. Within 45 days from the ratification of the
representations of Atty. Lambino and his group to the proposed amendment amounts to logrolling
proposed changes, the interim Parliament shall
6.3 million people who signed the signature sheets. Atty. because the electorate cannot know what it is
convene to propose further amendments or
Lambino and his group deceived the 6.3 million voting on - the amendment's proponents' simplistic
revisions to the Constitution.28
signatories, and even the entire nation. explanation reveals only the tip of the iceberg. x x
x x The ballot must give the electorate fair notice
These three specific amendments are not stated or even of the proposed amendment being voted on. x x x
This lucidly shows the absolute need for the people to sign
indicated in the Lambino Group's signature sheets. The x The ballot language in the instant case fails to do
an initiative petition that contains the full text of the proposed
people who signed the signature sheets had no idea that that. The very broadness of the proposal makes it
amendments to avoid fraud or misrepresentation. In the
they were proposing these amendments. These three impossible to state what it will affect and effect and
present initiative, the 6.3 million signatories had to rely on
proposed changes are highly controversial. The people could violates the requirement that proposed
the verbal representations of Atty. Lambino and his group
not have inferred or divined these proposed changes merely amendments embrace only one subject.
because the signature sheets did not contain the full text of
from a reading or rereading of the contents of the signature (Emphasis supplied)
the proposed changes. The result is a grand deception on
sheets.
the 6.3 million signatories who were led to believe that the
proposed changes would require the holding in 2007 of Logrolling confuses and even deceives the people. In Yute
During the oral arguments, petitioner Atty. Lambino stated elections for the regular Parliament simultaneously with the Air Alaska v. McAlpine,30 the Supreme Court of Alaska
that he and his group assured the people during the local elections. warned against "inadvertence, stealth and fraud" in
signature-gathering that the elections for the regular logrolling:
Parliament would be held during the 2007 local
The Lambino Group's initiative springs another surprise on
elections if the proposed changes were ratified before the
the people who signed the signature sheets. The proposed Whenever a bill becomes law through the initiative process,
2007 local elections. However, the text of the proposed
changes mandate the interim Parliament to make further all of the problems that the single-subject rule was enacted
changes belies this.
amendments or revisions to the Constitution. The proposed to prevent are exacerbated. There is a greater danger of
Section 4(4), Article XVIII on Transitory Provisions, provides: logrolling, or the deliberate intermingling of issues to
The proposed Section 5(2), Article XVIII on Transitory increase the likelihood of an initiative's passage, and there
Provisions, as found in the amended petition, states: is a greater opportunity for "inadvertence, stealth and
Section 4(4). Within forty-five days from ratification
fraud" in the enactment-by-initiative process. The
of these amendments, the interim Parliament shall
drafters of an initiative operate independently of any
Section 5(2). The interim Parliament shall provide convene to propose amendments to, or
structured or supervised process. They often emphasize
for the election of the members of revisions of, this Constitution consistent with
particular provisions of their proposition, while remaining
Parliament, which shall be synchronized and the principles of local autonomy, decentralization
silent on other (more complex or less appealing) provisions,
held simultaneously with the election of all and a strong bureaucracy. (Emphasis supplied)
when communicating to the public. x x x Indeed, initiative
local government officials. x x x x (Emphasis promoters typically use simplistic advertising to present
supplied) their initiative to potential petition-signers and eventual
During the oral arguments, Atty. Lambino stated that this
provision is a "surplusage" and the Court and the people voters. Many voters will never read the full text of the
Section 5(2) does not state that the elections for the regular should simply ignore it. Far from being a surplusage, this initiative before the election. More importantly, there is no
Parliament will be held simultaneously with the 2007 local provision invalidates the Lambino Group's initiative. process for amending or splitting the several provisions in an
elections. This section merely requires that the elections for initiative proposal. These difficulties clearly distinguish the
the regular Parliament shall be held simultaneously with the initiative from the legislative process. (Emphasis supplied)
Section 4(4) is a subject matter totally unrelated to the shift
local elections without specifying the year.
from the Bicameral-Presidential to the Unicameral-
Parliamentary system. American jurisprudence on initiatives Thus, the present initiative appears merely a preliminary step
Petitioner Atty. Lambino, who claims to be the principal outlaws this as logrolling - when the initiative petition for further amendments or revisions to be undertaken by the
drafter of the proposed changes, could have easily written incorporates an unrelated subject matter in the same interim Parliament as a constituent assembly. The people
the word "next" before the phrase "election of all local petition. This puts the people in a dilemma since they can who signed the signature sheets could not have known that
government officials." This would have insured that the answer only either yes or no to the entire proposition, forcing their signatures would be used to propose an
elections for the regular Parliament would be held in the next them to sign a petition that effectively contains two amendment mandating the interim Parliament to
local elections following the ratification of the proposed propositions, one of which they may find unacceptable. propose further amendments or revisions to the
changes. However, the absence of the word "next" allows Constitution.
the interim Parliament to schedule the elections for the
Under American jurisprudence, the effect of logrolling is
regular Parliament simultaneously with any future local
to nullify the entire proposition and not only the unrelated Apparently, the Lambino Group inserted the proposed
elections.
subject matter. Thus, in Fine v. Firestone,29 the Supreme Section 4(4) to compel the interim Parliament to amend or
Court of Florida declared: revise again the Constitution within 45 days from ratification
Thus, the members of the interim Parliament will decide the of the proposed changes, or before the May 2007
expiration of their own term of office. This allows incumbent elections. In the absence of the proposed Section 4(4), the
interim Parliament has the discretion whether to amend or operate as a gigantic fraud on the people. That is why the second mode is through a constitutional convention. The
revise again the Constitution. With the proposed Section Constitution requires that an initiative must be "directly third mode is through a people's initiative.
4(4), the initiative proponents want the interim proposed by the people x x x in a petition" - meaning that
Parliament mandated to immediately amend or revise again the people must sign on a petition that contains the full text
Section 1 of Article XVII, referring to the first and second
the Constitution. of the proposed amendments. On so vital an issue as
modes, applies to "[A]ny amendment to, or revision of, this
amending the nation's fundamental law, the writing of the
Constitution." In contrast, Section 2 of Article XVII, referring
text of the proposed amendments cannot be hidden from
However, the signature sheets do not explain the reason for to the third mode, applies only to "[A]mendments to this
the people under a general or special power of attorney to
this rush in amending or revising again so soon the Constitution." This distinction was intentional as shown by
unnamed, faceless, and unelected individuals.
Constitution. The signature sheets do not also explain what the following deliberations of the Constitutional Commission:
specific amendments or revisions the initiative proponents
want the interim Parliament to make, and why there is a The Constitution entrusts to the people the power to directly
MR. SUAREZ: Thank you, Madam President.
need for such further amendments or revisions. The people propose amendments to the Constitution. This Court trusts
are again left in the dark to fathom the nature and effect the wisdom of the people even if the members of this Court
of the proposed changes. Certainly, such an initiative is not do not personally know the people who sign the May we respectfully call the attention of the
"directly proposed by the people" because the people do not petition. However, this trust emanates from a Members of the Commission that pursuant to the
even know the nature and effect of the proposed changes. fundamental assumption: the full text of the proposed mandate given to us last night, we submitted this
amendment is first shown to the people before they sign afternoon a complete Committee Report No. 7
the petition, not after they have signed the petition. which embodies the proposed provision governing
There is another intriguing provision inserted in the Lambino
the matter of initiative. This is now covered by
Group's amended petition of 30 August 2006. The proposed
Section 2 of the complete committee report. With
Section 4(3) of the Transitory Provisions states: In short, the Lambino Group's initiative is void and
the permission of the Members, may I quote
unconstitutional because it dismally fails to comply with the
Section 2:
requirement of Section 2, Article XVII of the Constitution that
Section 4(3). Senators whose term of office ends
the initiative must be "directly proposed by the people
in 2010 shall be members of Parliament until noon
through initiative upon a petition." The people may, after five years from the date of
of the thirtieth day of June 2010.
the last plebiscite held, directly propose
amendments to this Constitution thru initiative
2. The Initiative Violates Section 2, Article XVII of the
After 30 June 2010, not one of the present Senators will upon petition of at least ten percent of the
Constitution Disallowing Revision through Initiatives
remain as member of Parliament if the interim Parliament registered voters.
does not schedule elections for the regular Parliament by 30
June 2010. However, there is no counterpart provision for A people's initiative to change the Constitution applies only
This completes the blanks appearing in the original
the present members of the House of Representatives even to an amendment of the Constitution and not to its revision.
Committee Report No. 7. This proposal was
if their term of office will all end on 30 June 2007, three years In contrast, Congress or a constitutional convention can
suggested on the theory that this matter of
earlier than that of half of the present Senators. Thus, all the propose both amendments and revisions to the Constitution.
initiative, which came about because of the
present members of the House will remain members of the Article XVII of the Constitution provides:
extraordinary developments this year, has to be
interim Parliament after 30 June 2010.
separated from the traditional modes of amending
ARTICLE XVII the Constitution as embodied in Section 1. The
The term of the incumbent President ends on 30 June 2010. AMENDMENTS OR REVISIONS committee members felt that this system of
Thereafter, the Prime Minister exercises all the powers of the initiative should be limited to amendments to
President. If the interim Parliament does not schedule the Constitution and should not extend to the
Sec. 1. Any amendment to, or revision of, this
elections for the regular Parliament by 30 June 2010, the revision of the entire Constitution, so we
Constitution may be proposed by:
Prime Minister will come only from the present members of removed it from the operation of Section 1 of
the House of Representatives to the exclusion of the the proposed Article on Amendment or
present Senators. (1) The Congress, upon a vote of three-fourths of Revision. x x x x
all its Members, or
The signature sheets do not explain this discrimination xxxx
against the Senators. The 6.3 million people who signed (2) A constitutional convention.
the signature sheets could not have known that their
MS. AQUINO: [I] am seriously bothered by
signatures would be used to discriminate against the
Sec. 2. Amendments to this Constitution may providing this process of initiative as a separate
Senators. They could not have known that their
likewise be directly proposed by the people section in the Article on Amendment. Would the
signatures would be used to limit, after 30 June 2010,
through initiative x x x. (Emphasis supplied) sponsor be amenable to accepting an amendment
the interim Parliament's choice of Prime Minister only to
in terms of realigning Section 2 as another
members of the existing House of Representatives.
subparagraph (c) of Section 1, instead of setting it
Article XVII of the Constitution speaks of three modes of
up as another separate section as if it were a self-
An initiative that gathers signatures from the people amending the Constitution. The first mode is through executing provision?
without first showing to the people the full text of the Congress upon three-fourths vote of all its Members. The
proposed amendments is most likely a deception, and can
MR. SUAREZ: We would be amenable except This has been the consistent ruling of state supreme courts Whether it be a revision or a new constitution, it is
that, as we clarified a while ago, this process of in the United States. Thus, in McFadden v. Jordan,32the not such a measure as can be submitted to the
initiative is limited to the matter of amendment Supreme Court of California ruled: people through the initiative. If a revision, it is
and should not expand into a revision which subject to the requirements of Article XVII, Section
contemplates a total overhaul of the 2(1); if a new constitution, it can only be proposed
The initiative power reserved by the people by
Constitution. That was the sense that was at a convention called in the manner provided in
amendment to the Constitution x x x applies
conveyed by the Committee. Article XVII, Section 1. x x x x
only to the proposing and the adopting or
rejecting of 'laws and amendments to the
MS. AQUINO: In other words, the Committee Constitution' and does not purport to extend to Similarly, in this jurisdiction there can be no dispute that a
was attempting to distinguish the coverage of a constitutional revision. x x x x It is thus clear people's initiative can only propose amendments to the
modes (a) and (b) in Section 1 to include the that a revision of the Constitution may be Constitution since the Constitution itself limits initiatives to
process of revision; whereas, the process of accomplished only through ratification by the amendments. There can be no deviation from the
initiation to amend, which is given to the people of a revised constitution proposed by a constitutionally prescribed modes of revising the
public, would only apply to amendments? convention called for that purpose as outlined Constitution. A popular clamor, even one backed by 6.3
hereinabove. Consequently if the scope of the million signatures, cannot justify a deviation from the specific
proposed initiative measure (hereinafter termed modes prescribed in the Constitution itself.
MR. SUAREZ: That is right. Those were the
'the measure') now before us is so broad that if
terms envisioned in the Committee.
such measure became law a substantial revision
As the Supreme Court of Oklahoma ruled in In re Initiative
of our present state Constitution would be
Petition No. 364:34
MS. AQUINO: I thank the sponsor; and thank you, effected, then the measure may not properly be
Madam President. submitted to the electorate until and unless it is
first agreed upon by a constitutional convention, It is a fundamental principle that a constitution
and the writ sought by petitioner should issue. x x can only be revised or amended in the manner
xxxx x x (Emphasis supplied) prescribed by the instrument itself, and that
any attempt to revise a constitution in a
MR. MAAMBONG: My first question: manner other than the one provided in the
Likewise, the Supreme Court of Oregon ruled in Holmes v.
Commissioner Davide's proposed amendment instrument is almost invariably treated as
Appling:33
on line 1 refers to "amendments." Does it not extra-constitutional and revolutionary. x x x x
cover the word "revision" as defined by "While it is universally conceded that the people
Commissioner Padilla when he made the It is well established that when a constitution are sovereign and that they have power to adopt a
distinction between the words "amendments" specifies the manner in which it may be amended constitution and to change their own work at will,
and "revision"? or revised, it can be altered by those who favor they must, in doing so, act in an orderly manner
amendments, revision, or other change only and according to the settled principles of
through the use of one of the specified means. constitutional law. And where the people, in
MR. DAVIDE: No, it does not, because
The constitution itself recognizes that there is a adopting a constitution, have prescribed the
"amendments" and "revision" should be
difference between an amendment and a revision; method by which the people may alter or amend it,
covered by Section 1. So insofar as initiative is
and it is obvious from an examination of the an attempt to change the fundamental law in
concerned, it can only relate to "amendments"
measure here in question that it is not an violation of the self-imposed restrictions, is
not "revision."
amendment as that term is generally understood unconstitutional." x x x x (Emphasis supplied)
and as it is used in Article IV, Section 1. The
MR. MAAMBONG: Thank you.31 (Emphasis document appears to be based in large part on the
This Court, whose members are sworn to defend and protect
supplied) revision of the constitution drafted by the
the Constitution, cannot shirk from its solemn oath and duty
'Commission for Constitutional Revision'
to insure compliance with the clear command of the
authorized by the 1961 Legislative Assembly, x x x
There can be no mistake about it. The framers of the Constitution ― that a people's initiative may only amend,
and submitted to the 1963 Legislative Assembly. It
Constitution intended, and wrote, a clear distinction never revise, the Constitution.
failed to receive in the Assembly the two-third's
between "amendment" and "revision" of the Constitution. The majority vote of both houses required by Article
framers intended, and wrote, that only Congress or a XVII, Section 2, and hence failed of adoption, x x The question is, does the Lambino Group's initiative
constitutional convention may propose revisions to the x. constitute an amendment or revision of the Constitution? If
Constitution. The framers intended, and wrote, that a
the Lambino Group's initiative constitutes a revision, then the
people's initiative may propose only amendments to the
present petition should be dismissed for being outside the
Constitution. Where the intent and language of the While differing from that document in material
scope of Section 2, Article XVII of the Constitution.
Constitution clearly withhold from the people the power to respects, the measure sponsored by the plaintiffs
propose revisions to the Constitution, the people cannot is, nevertheless, a thorough overhauling of the
propose revisions even as they are empowered to propose present constitution x x x. Courts have long recognized the distinction between an
amendments. amendment and a revision of a constitution. One of the
earliest cases that recognized the distinction described the
To call it an amendment is a misnomer.
fundamental difference in this manner:
[T]he very term "constitution" implies an instrument proposed changes alter substantially the basic plan of Florida, striking down the initiative as outside the scope of
of a permanent and abiding nature, and government, from presidential to parliamentary, and from a the initiative clause, ruled as follows:
the provisions contained therein for its revision bicameral to a unicameral legislature.
indicate the will of the people that the
The proposal here to amend Section 1 of Article III
underlying principles upon which it rests, as
A change in the structure of government is a revision of the of the 1968 Constitution to provide for a
well as the substantial entirety of the
Constitution, as when the three great co-equal branches of Unicameral Legislature affects not only many
instrument, shall be of a like permanent and
government in the present Constitution are reduced into other provisions of the Constitution but
abiding nature. On the other hand, the significance
two. This alters the separation of powers in the provides for a change in the form of the
of the term "amendment" implies such an addition
Constitution. A shift from the present Bicameral- legislative branch of government, which has
or change within the lines of the original instrument
Presidential system to a Unicameral-Parliamentary system is been in existence in the United States Congress
as will effect an improvement, or better carry out
a revision of the Constitution. Merging the legislative and and in all of the states of the nation, except one,
the purpose for which it was framed.35 (Emphasis
executive branches is a radical change in the structure of since the earliest days. It would be difficult to
supplied)
government. visualize a more revolutionary change. The
concept of a House and a Senate is basic in the
Revision broadly implies a change that alters a basic American form of government. It would not only
The abolition alone of the Office of the President as the locus
principle in the constitution, like altering the principle of radically change the whole pattern of
of Executive Power alters the separation of powers and thus
separation of powers or the system of checks-and-balances. government in this state and tear apart the
constitutes a revision of the Constitution. Likewise, the
There is also revision if the change alters the substantial whole fabric of the Constitution, but would
abolition alone of one chamber of Congress alters the
entirety of the constitution, as when the change affects even affect the physical facilities necessary to
system of checks-and-balances within the legislature and
substantial provisions of the constitution. On the other carry on government.
constitutes a revision of the Constitution.
hand, amendment broadly refers to a change that adds,
reduces, or deletes without altering the basic principle
xxxx
involved. Revision generally affects several provisions of By any legal test and under any jurisdiction, a shift from a
the constitution, while amendment generally affects only the Bicameral-Presidential to a Unicameral-Parliamentary
specific provision being amended. system, involving the abolition of the Office of the President We conclude with the observation that if such
and the abolition of one chamber of Congress, is beyond proposed amendment were adopted by the people
doubt a revision, not a mere amendment. On the face alone at the General Election and if the Legislature at its
In California where the initiative clause allows amendments
of the Lambino Group's proposed changes, it is readily next session should fail to submit further
but not revisions to the constitution just like in our
apparent that the changes will radically alter the amendments to revise and clarify the numerous
Constitution, courts have developed a two-part test: the
framework of government as set forth in the inconsistencies and conflicts which would result, or
quantitative test and the qualitative test. The quantitative test
Constitution. Father Joaquin Bernas, S.J., a leading if after submission of appropriate amendments the
asks whether the proposed change is "so extensive in its
member of the Constitutional Commission, writes: people should refuse to adopt them, simple chaos
provisions as to change directly the 'substantial entirety' of
would prevail in the government of this State. The
the constitution by the deletion or alteration of numerous
same result would obtain from an amendment, for
existing provisions."36 The court examines only the number An amendment envisages an alteration of one or a few
instance, of Section 1 of Article V, to provide for
of provisions affected and does not consider the degree of specific and separable provisions. The guiding original
only a Supreme Court and Circuit Courts-and
the change. intention of an amendment is to improve specific parts or to
there could be other examples too numerous to
add new provisions deemed necessary to meet new
detail. These examples point unerringly to the
conditions or to suppress specific portions that may have
The qualitative test inquires into the qualitative effects of the answer.
become obsolete or that are judged to be dangerous. In
proposed change in the constitution. The main inquiry is
revision, however, the guiding original intention and plan
whether the change will "accomplish such far reaching
contemplates a re-examination of the entire document, or of The purpose of the long and arduous work of the
changes in the nature of our basic governmental plan as to
provisions of the document which have over-all implications hundreds of men and women and many sessions
amount to a revision."37 Whether there is an alteration in the
for the entire document, to determine how and to what extent of the Legislature in bringing about the
structure of government is a proper subject of inquiry. Thus,
they should be altered. Thus, for instance a switch from Constitution of 1968 was to eliminate
"a change in the nature of [the] basic governmental plan"
the presidential system to a parliamentary system would inconsistencies and conflicts and to give the State
includes "change in its fundamental framework or the
be a revision because of its over-all impact on the entire a workable, accordant, homogenous and up-to-
fundamental powers of its Branches."38 A change in the
constitutional structure. So would a switch from a date document. All of this could disappear very
nature of the basic governmental plan also includes changes
bicameral system to a unicameral system be because of quickly if we were to hold that it could be amended
that "jeopardize the traditional form of government and the
its effect on other important provisions of the in the manner proposed in the initiative petition
system of check and balances."39
Constitution.41 (Emphasis supplied) here.43(Emphasis supplied)

Under both the quantitative and qualitative tests, the


In Adams v. Gunter,42 an initiative petition proposed the The rationale of the Adams decision applies with greater
Lambino Group's initiative is a revision and not merely an
amendment of the Florida State constitution to shift from a force to the present petition. The Lambino Group's initiative
amendment. Quantitatively, the Lambino Group's proposed
bicameral to a unicameral legislature. The issue turned on not only seeks a shift from a bicameral to a unicameral
changes overhaul two articles - Article VI on the Legislature
whether the initiative "was defective and unauthorized where legislature, it also seeks to merge the executive and
and Article VII on the Executive - affecting a total of 105
[the] proposed amendment would x x x affect several other legislative departments. The initiative in Adams did not even
provisions in the entire Constitution.40Qualitatively, the
provisions of [the] Constitution." The Supreme Court of touch the executive department.
In Adams, the Supreme Court of Florida enumerated 18 initiative, the changes would constitute a revision of the section 2, and cannot appear on the ballot without
sections of the Florida Constitution that would be affected by Constitution. Thus, the Lambino Group concedes that the the prior approval of the legislature.
the shift from a bicameral to a unicameral legislature. In the proposed changes in the present initiative constitute a
Lambino Group's present initiative, no less than 105 revision if Congress or a constitutional convention had
We first address Mabon's argument that Article
provisions of the Constitution would be affected based drafted the changes. However, since the Lambino Group
XVII, section 2(1), does not prohibit revisions
on the count of Associate Justice Romeo J. Callejo, as private individuals drafted the proposed changes, the
instituted by initiative. In Holmes v. Appling, x x
Sr.44 There is no doubt that the Lambino Group's present changes are merely amendments to the Constitution. The
x, the Supreme Court concluded that a revision of
initiative seeks far more radical changes in the structure of Lambino Group trivializes the serious matter of changing the
the constitution may not be accomplished by
government than the initiative in Adams. fundamental law of the land.
initiative, because of the provisions of Article XVII,
section 2. After reviewing Article XVII, section1,
The Lambino Group theorizes that the difference between The express intent of the framers and the plain language relating to proposed amendments, the court said:
"amendment" and "revision" is only one of procedure, not of the Constitution contradict the Lambino Group's theory.
of substance. The Lambino Group posits that when a Where the intent of the framers and the language of the
"From the foregoing it appears that Article IV,
deliberative body drafts and proposes changes to the Constitution are clear and plainly stated, courts do not
Section 1, authorizes the use of the initiative as a
Constitution, substantive changes are called "revisions" deviate from such categorical intent and language.45 Any
means of amending the Oregon Constitution, but it
because members of the deliberative body work full-time theory espousing a construction contrary to such intent and
contains no similar sanction for its use as a means
on the changes. However, the same substantive changes, language deserves scant consideration. More so, if such
of revising the constitution." x x x x
when proposed through an initiative, are called theory wreaks havoc by creating inconsistencies in the form
"amendments" because the changes are made by of government established in the Constitution. Such a theory,
ordinary people who do not make an "occupation, devoid of any jurisprudential mooring and inviting It then reviewed Article XVII, section 2, relating
profession, or vocation" out of such endeavor. inconsistencies in the Constitution, only exposes the to revisions, and said: "It is the only section of the
flimsiness of the Lambino Group's position. Any theory constitution which provides the means for
advocating that a proposed change involving a radical constitutional revision and it excludes the idea that
Thus, the Lambino Group makes the following exposition of
structural change in government does not constitute a an individual, through the initiative, may place
their theory in their Memorandum:
revision justly deserves rejection. such a measure before the electorate." x x x x

99. With this distinction in mind, we note that the


The Lambino Group simply recycles a theory that initiative Accordingly, we reject Mabon's argument that
constitutional provisions expressly provide for both
proponents in American jurisdictions have attempted to Article XVII, section 2, does not apply to
"amendment" and "revision" when it speaks of
advance without any success. In Lowe v. Keisling,46 the constitutional revisions proposed by initiative.
legislators and constitutional delegates, while the
Supreme Court of Oregon rejected this theory, thus: (Emphasis supplied)
same provisions expressly provide only for
"amendment" when it speaks of the people. It
would seem that the apparent distinction is based Mabon argues that Article XVII, section 2, does not Similarly, this Court must reject the Lambino Group's theory
on the actual experience of the people, that on one apply to changes to the constitution proposed by which negates the express intent of the framers and the plain
hand the common people in general are not initiative. His theory is that Article XVII, section language of the Constitution.
expected to work full-time on the matter of 2 merely provides a procedure by which the
correcting the constitution because that is not their legislature can propose a revision of the
constitution, but it does not affect proposed We can visualize amendments and revisions as a spectrum,
occupation, profession or vocation; while on the
other hand, the legislators and constitutional revisions initiated by the people. at one end green for amendments and at the other end red
convention delegates are expected to work full- for revisions. Towards the middle of the spectrum, colors
fuse and difficulties arise in determining whether there is an
time on the same matter because that is their
Plaintiffs argue that the proposed ballot measure amendment or revision. The present initiative is indisputably
occupation, profession or vocation. Thus, the
constitutes a wholesale change to the constitution located at the far end of the red spectrum where revision
difference between the words "revision" and
that cannot be enacted through the initiative begins. The present initiative seeks a radical overhaul of the
"amendment" pertain only to the process or
process. They assert that the distinction between existing separation of powers among the three co-equal
procedure of coming up with the corrections,
amendment and revision is determined by departments of government, requiring far-reaching
for purposes of interpreting the constitutional
reviewing the scope and subject matter of the amendments in several sections and articles of the
provisions.
proposed enactment, and that revisions are not Constitution.
limited to "a formal overhauling of the constitution."
100. Stated otherwise, the difference between They argue that this ballot measure proposes far
"amendment" and "revision" cannot Where the proposed change applies only to a specific
reaching changes outside the lines of the original
reasonably be in the substance or extent of the instrument, including profound impacts on existing provision of the Constitution without affecting any other
correction. x x x x (Underlining in the original; fundamental rights and radical restructuring of the section or article, the change may generally be considered
an amendment and not a revision. For example, a change
boldfacing supplied) government's relationship with a defined group of
citizens. Plaintiffs assert that, because the reducing the voting age from 18 years to 15 years47 is an
proposed ballot measure "will refashion the most amendment and not a revision. Similarly, a change reducing
The Lambino Group in effect argues that if Congress or a Filipino ownership of mass media companies from 100
basic principles of Oregon constitutional law," the
constitutional convention had drafted the same proposed percent to 60 percent is an amendment and not a
trial court correctly held that it violated Article XVII,
changes that the Lambino Group wrote in the present revision.48 Also, a change requiring a college degree as an
additional qualification for election to the Presidency is an The basic rule in statutory construction is that if a later law is 3. A Revisit of Santiago v. COMELEC is Not Necessary
amendment and not a revision.49 irreconcilably inconsistent with a prior law, the later law
prevails. This rule also applies to construction of
The present petition warrants dismissal for failure to comply
constitutions. However, the Lambino Group's draft of Section
The changes in these examples do not entail any with the basic requirements of Section 2, Article XVII of the
2 of the Transitory Provisions turns on its head this rule of
modification of sections or articles of the Constitution other Constitution on the conduct and scope of a people's initiative
construction by stating that in case of such irreconcilable
than the specific provision being amended. These changes to amend the Constitution. There is no need to revisit this
inconsistency, the earlier provision "shall be amended to
do not also affect the structure of government or the system Court's ruling in Santiago declaring RA 6735 "incomplete,
conform with a unicameral parliamentary form of
of checks-and-balances among or within the three branches. inadequate or wanting in essential terms and conditions" to
government." The effect is to freeze the two irreconcilable
These three examples are located at the far green end of the cover the system of initiative to amend the Constitution. An
provisions until the earlier one "shall be amended," which
spectrum, opposite the far red end where the revision sought affirmation or reversal of Santiago will not change the
requires a future separate constitutional amendment.
by the present petition is located. outcome of the present petition. Thus, this Court must
decline to revisit Santiago which effectively ruled that RA
Realizing the absurdity of the need for such an amendment, 6735 does not comply with the requirements of the
However, there can be no fixed rule on whether a change is
petitioner Atty. Lambino readily conceded during the oral Constitution to implement the initiative clause on
an amendment or a revision. A change in a single word of
arguments that the requirement of a future amendment is a amendments to the Constitution.
one sentence of the Constitution may be a revision and not
"surplusage." In short, Atty. Lambino wants to reinstate the
an amendment. For example, the substitution of the word
rule of statutory construction so that the later provision
"republican" with "monarchic" or "theocratic" in Section 1, This Court must avoid revisiting a ruling involving the
automatically prevails in case of irreconcilable inconsistency.
Article II50 of the Constitution radically overhauls the entire constitutionality of a statute if the case before the Court can
However, it is not as simple as that.
structure of government and the fundamental ideological be resolved on some other grounds. Such avoidance is a
basis of the Constitution. Thus, each specific change will logical consequence of the well-settled doctrine that courts
have to be examined case-by-case, depending on how it The irreconcilable inconsistency envisioned in the proposed will not pass upon the constitutionality of a statute if the case
affects other provisions, as well as how it affects the Section 2 of the Transitory Provisions is not between a can be resolved on some other grounds.51
structure of government, the carefully crafted system of provision in Article VI of the 1987 Constitution and a
checks-and-balances, and the underlying ideological basis of provision in the proposed changes. The inconsistency is
Nevertheless, even assuming that RA 6735 is valid to
the existing Constitution. between a provision in Article VI of the 1987 Constitution and
implement the constitutional provision on initiatives to amend
the "Parliamentary system of government," and the
the Constitution, this will not change the result here because
inconsistency shall be resolved in favor of a "unicameral
Since a revision of a constitution affects basic principles, or the present petition violates Section 2, Article XVII of the
parliamentary form of government."
several provisions of a constitution, a deliberative body Constitution. To be a valid initiative, the present initiative
with recorded proceedings is best suited to undertake a must first comply with Section 2, Article XVII of the
revision. A revision requires harmonizing not only several Now, what "unicameral parliamentary form of Constitution even before complying with RA 6735.
provisions, but also the altered principles with those that government" do the Lambino Group's proposed changes
remain unaltered. Thus, constitutions normally authorize refer to ― the Bangladeshi, Singaporean, Israeli, or New
Even then, the present initiative violates Section 5(b) of RA
deliberative bodies like constituent assemblies or Zealand models, which are among the few countries
6735 which requires that the "petition for an initiative on the
constitutional conventions to undertake revisions. On the with unicameral parliaments? The proposed changes
1987 Constitution must have at least twelve per
other hand, constitutions allow people's initiatives, which do could not possibly refer to the traditional and well-known
centum (12%) of the total number of registered voters as
not have fixed and identifiable deliberative bodies or parliamentary forms of government ― the British, French,
signatories." Section 5(b) of RA 6735 requires that the
recorded proceedings, to undertake only amendments and Spanish, German, Italian, Canadian, Australian, or
people must sign the "petition x x x as signatories."
not revisions. Malaysian models, which have all bicameral parliaments.
Did the people who signed the signature sheets realize that
they were adopting the Bangladeshi, Singaporean, Israeli, or The 6.3 million signatories did not sign the petition of 25
In the present initiative, the Lambino Group's proposed
New Zealand parliamentary form of government? August 2006 or the amended petition of 30 August 2006 filed
Section 2 of the Transitory Provisions states:
with the COMELEC. Only Atty. Lambino, Atty.
Demosthenes B. Donato, and Atty. Alberto C. Agra
This drives home the point that the people's initiative is not
Section 2. Upon the expiration of the term of the signed the petition and amended petition as counsels
meant for revisions of the Constitution but only for
incumbent President and Vice President, with the for "Raul L. Lambino and Erico B. Aumentado,
amendments. A shift from the present Bicameral-Presidential
exception of Sections 1, 2, 3, 4, 5, 6 and 7 of Petitioners." In the COMELEC, the Lambino Group,
to a Unicameral-Parliamentary system requires harmonizing
Article VI of the 1987 Constitution which shall claiming to act "together with" the 6.3 million signatories,
several provisions in many articles of the Constitution.
hereby be amended and Sections 18 and 24 which merely attached the signature sheets to the petition and
Revision of the Constitution through a people's initiative will
shall be deleted, all other Sections of Article VI are amended petition. Thus, the petition and amended petition
only result in gross absurdities in the Constitution.
hereby retained and renumbered sequentially as filed with the COMELEC did not even comply with the basic
Section 2, ad seriatim up to 26, unless they are requirement of RA 6735 that the Lambino Group claims as
inconsistent with the Parliamentary system of In sum, there is no doubt whatsoever that the Lambino valid.
government, in which case, they shall be Group's initiative is a revision and not an amendment. Thus,
amended to conform with a unicameral the present initiative is void and unconstitutional because it
The Lambino Group's logrolling initiative also violates
parliamentary form of government; x x x x violates Section 2, Article XVII of the Constitution limiting the
Section 10(a) of RA 6735 stating, "No petition embracing
(Emphasis supplied) scope of a people's initiative to "[A]mendments to this
more than one (1) subject shall be submitted to the
Constitution."
electorate; x x x." The proposed Section 4(4) of the will. That approval included the prescribed modes for ____________________
Transitory Provisions, mandating the interim Parliament to amending or revising the Constitution.
propose further amendments or revisions to the Constitution,
EN BANC
is a subject matter totally unrelated to the shift in the form of
No amount of signatures, not even the 6,327,952 million
government. Since the present initiative embraces more than
signatures gathered by the Lambino Group, can change our
one subject matter, RA 6735 prohibits submission of the G.R. No. 174153 October 25, 2006
Constitution contrary to the specific modes that the people,
initiative petition to the electorate. Thus, even if RA 6735 is
in their sovereign capacity, prescribed when they ratified the
valid, the Lambino Group's initiative will still fail.
Constitution. The alternative is an extra-constitutional RAUL L. LAMBINO AND ERICO B. AUMENTADO,
change, which means subverting the people's sovereign TOGETHER WITH 6,327,952 REGISTERED VOTERS V.
4. The COMELEC Did Not Commit Grave Abuse of will and discarding the Constitution. This is one act the COMMISSION ON ELECTIONS ET AL.
Discretion in Dismissing the Lambino Group's Initiative Court cannot and should never do. As the ultimate guardian
of the Constitution, this Court is sworn to perform its solemn
SEPARATE CONCURRING OPINION
duty to defend and protect the Constitution, which embodies
In dismissing the Lambino Group's initiative petition, the
the real sovereign will of the people.
COMELEC en banc merely followed this Court's ruling
PANGANIBAN, CJ.:
in Santiago and People's Initiative for Reform,
Modernization and Action (PIRMA) v. COMELEC.52 For Incantations of "people's voice," "people's sovereign will," or
following this Court's ruling, no grave abuse of discretion is "let the people decide" cannot override the specific modes of
attributable to the COMELEC. On this ground alone, the changing the Constitution Without the ruleinofthe
as prescribed law,Constitution
there can be no lasting prosperity and certainly no liberty.
present petition warrants outright dismissal. Thus, this Court itself. Otherwise, the Constitution ― the people's
should reiterate its unanimous ruling in PIRMA: fundamental covenant thatBeverley
provides enduring stability to our McLachlin 1
Chief Justice of Canada
society ― becomes easily susceptible to manipulative
changes by political groups gathering signatures through After a deep reflection on the issues raised and a careful
The Court ruled, first, by a unanimous vote, that no
false promises. Then, the Constitution ceases to be the evaluation of the parties' respective arguments -- both oral
grave abuse of discretion could be attributed to the
bedrock of the nation's stability. and written -- as well as the enlightened and enlightening
public respondent COMELEC in dismissing the
petition filed by PIRMA therein, it appearing that it Opinions submitted by my esteemed colleagues, I am fully
only complied with the dispositions in the The Lambino Group claims that their initiative is the convinced that the present Petition must be dismissed.
Decisions of this Court in G.R. No. 127325, "people's voice." However, the Lambino Group unabashedly
promulgated on March 19, 1997, and its states in ULAP Resolution No. 2006-02, in the verification of I write, however, to show that my present disposition is
Resolution of June 10, 1997. their petition with the COMELEC, that "ULAP maintains completely consistent with my previous Opinions and votes
its unqualified support to the agenda of Her Excellency on the two extant Supreme Court cases involving an initiative
President Gloria Macapagal-Arroyo for constitutional to change the Constitution.
5. Conclusion
reforms." The Lambino Group thus admits that their
"people's" initiative is an "unqualified support to the agenda"
The Constitution, as the fundamental law of the land, of the incumbent President to change the Constitution. This In my Separate Opinion in Santiago v. Comelec,2 I opined
deserves the utmost respect and obedience of all the forewarns the Court to be wary of incantations of "people's "that taken together and interpreted properly and liberally,
citizens of this nation. No one can trivialize the Constitution voice" or "sovereign will" in the present initiative. the Constitution (particularly Art. XVII, Sec. 2), Republic Act
by cavalierly amending or revising it in blatant violation of the 6735 and Comelec Resolution 2300 provide more than
clearly specified modes of amendment and revision laid sufficient
This Court cannot betray its primordial duty to defend and
down in the Constitution itself.
protect the Constitution. The Constitution, which embodies
the people's sovereign will, is the bible of this Court. This __________________
To allow such change in the fundamental law is to set adrift Court exists to defend and protect the Constitution. To
the Constitution in unchartered waters, to be tossed and allow this constitutionally infirm initiative, propelled by 'SEC. 2. Amendments to this Constitution may
turned by every dominant political group of the day. If this deceptively gathered signatures, to alter basic principles in likewise be directly proposed by the people
Court allows today a cavalier change in the Constitution the Constitution is to allow a desecration of the Constitution. through initiative upon a petition of at least twelve
outside the constitutionally prescribed modes, tomorrow the To allow such alteration and desecration is to lose this per centum of the total number of registered
new dominant political group that comes will demand its own Court's raison d'etre. voters, of which every legislative district must be
set of changes in the same cavalier and unconstitutional represented by at least three per centum of the
fashion. A revolving-door constitution does not augur well for registered voters therein. No amendment under
WHEREFORE, we DISMISS the petition in G.R. No. 174153.
the rule of law in this country. this section shall be authorized within five years
following the ratification of this Constitution nor
SO ORDERED.
An overwhelming majority − 16,622,111 voters comprising oftener than once every five years thereafter.'
76.3 percent of the total votes cast53 − approved our
Constitution in a national plebiscite held on 11 February Panganiban, C.J., Puno, Quisumbing, Ynares-Santiago, "With all due respect, I find the majority's position
1987. That approval is the unmistakable voice of the Sandoval-Gutierrez, Austria-Martinez, Corona, Carpio all too sweeping and all too extremist. It is
people, the full expression of the people's sovereign Morales, Callejo, Sr., Azcuna, Tinga, Chico-Nazario, Garcia, equivalent to burning the whole house to
and Velasco, Jr., JJ., concur.
exterminate the rats, and to killing the patient to __________________ "By way of epilogue, let me stress the guiding
relieve him of pain. What Citizen Delfin wants the tenet of my Separate Opinion. Initiative, like
Comelec to do we should reject. But we should not referendum and recall, is a new and treasured
E. Abueg, Jr., Leopoldo L. Africa, Andres R.
thereby preempt any future effort to exercise the feature of the Filipino constitutional system. All
Flores, Dario C. Rama and Magdara B.
right of initiative correctly and judiciously. The fact three are institutionalized legacies of the world-
Dimaampao. All of these Commissioners who
that the Delfin Petition proposes a misuse of admired EDSA people power. Like elections and
signed Resolution 2300 have retired from the
initiative does not justify a ban against its proper plebiscites, they are hallowed expressions of
Commission, and thus we cannot ascribe any vile
use. Indeed, there is a right way to do the right popular sovereignty. They are sacred democratic
motive unto them, other than an honest, sincere
thing at the right time and for the right reason. rights of our people to be used as
and exemplary effort to give life to a cherished
right of our people.
Taken Together and Interpreted Properly, Six months after, in my Separate Opinion in People's
the Constitution, R.A. 6735 and Comelec Initiative for Reform, Modernization and Action (PIRMA) v.
"The majority argues that while Resolution 2300 is
Resolution Comelec,3 I joined the rest of the members of the Court in
valid in regard to national laws and local
2300 Are Sufficient to Implement Constitutional ruling "by a unanimous vote, that no grave abuse of
legislations, it is void in reference to constitutional
Initiatives discretion could be attributed to the Comelec in dismissing
amendments. There is no basis for such
the petition filed by
differentiation. The source of and authority for the
"While R.A. 6735 may not be a perfect law, it was Resolution is the same law, R.A. 6735.
— as the majority openly concedes — intended by __________________
the legislature to cover and, I respectfully submit, it
"I respectfully submit that taken together and
contains enough provisions to effectuate an
interpreted properly and liberally, the Constitution Constitution x x x." While concededly, petitioners
initiative on the Constitution. I completely agree
(particularly Art. XVII, Sec. 2), R.A. 6735 and in this case were not direct parties in Santiago,
with the inspired and inspiring opinions of Mr.
Comelec Resolution 2300 provide more than nonetheless the Court's injunction against the
Justice Reynato S. Puno and Mr. Justice Ricardo
sufficient authority to implement, effectuate and Comelec covered ANY petition, not just the Delfin
J. Francisco that RA 6735, the Roco law on
realize our people's power to amend the petition which was the immediate subject of said
initiative, sufficiently implements the right of the
Constitution. case. As a dissenter in Santiago, I believed,
people to initiate amendments to the Constitution.
and still do, that the majority gravely erred in
Such views, which I shall no longer repeat nor
rendering such a sweeping injunction, but I
elaborate on, are thoroughly consistent with this Petitioner Delfin and the Pedrosa
cannot fault the Comelec for complying with
Court's unanimous en banc rulings in Subic Bay Spouses Should Not Be Muzzled
the ruling even if it, too, disagreed with said
Metropolitan Authority vs. Commission on
decision's ratio decidendi. Respondent
Elections, that "provisions for initiative . . . are (to
"I am glad the majority decided to heed our plea to Comelec was directly enjoined by the highest
be) liberally construed to effectuate their purposes,
lift the temporary restraining order issued by this Court of the land. It had no choice but to obey.
to facilitate and not hamper the exercise by the
Court on 18 December 1996 insofar as it Its obedience cannot constitute grave abuse of
voters of the rights granted thereby"; and in Garcia
prohibited Petitioner Delfin and the Spouses discretion. Refusal to act on the PIRMA petition
vs. Comelec, that any "effort to trivialize the
Pedrosa from exercising their right of initiative. In was the only recourse open to the Comelec. Any
effectiveness of people's initiatives ought to be
fact, I believe that such restraining order as other mode of action would have constituted
rejected."
against private respondents should not have been defiance of the Court and would have been struck
issued, in the first place. While I agree that the down as grave abuse of discretion and
"No law can completely and absolutely cover all Comelec should be stopped from using public contumacious disregard of this Court's supremacy
administrative details. In recognition of this, R.A. funds and government resources to help them as the final arbiter of justiciable controversies.
6735 wisely empowered the Commission on gather signatures, I firmly believe that this Court
Election "to promulgate such rules and regulations has no power to restrain them from exercising their
Second Issue:
as may be necessary to carry out the purposes of right of initiative. The right to propose amendments
Sufficiency of RA 6735
this Act." And pursuant thereto, the Comelec to the Constitution is really a species of the right of
issued its Resolution 2300 on 16 January 1991. free speech and free assembly. And certainly, it
Such Resolution, by its very words, was would be tyrannical and despotic to stop anyone "I repeat my firm legal position that RA 6735 is
promulgated "to govern the conduct of initiative on from speaking freely and persuading others to adequate to cover initiatives on the
the Constitution and initiative and referendum on conform to his/her beliefs. As the eminent Voltaire Constitution, and that whatever administrative
national and local laws," not by the incumbent once said, 'I may disagree with what you say, but I details may have been omitted in said law are
Commission on Elections but by one then will defend to the death your right to say it.' After satisfactorily provided by Comelec Resolution
composed of Acting Chairperson Haydee B. all, freedom is not really for the thought we agree 2300. The promulgation of Resolution 2300 is
Yorac, Comms. Alfredo with, but as Justice Holmes wrote, 'freedom for the sanctioned by Section 2, Article IX-C of the
thought that we hate.' Constitution, which vests upon the Comelec the
power to "enforce and administer all laws and
authority to implement, effectuate and realize our people's
regulations relative to the conduct of an election,
power to amend the Constitution." Epilogue
plebiscite, initiative, referendum and recall." The
Omnibus Election Code likewise empowers the
electoral body to "promulgate rules and regulations "Pursuant to Section 3(f) of the law, the Comelec I added "that my position upholding the adequacy of RA
implementing the provisions of this Code or other shall prescribe the form of the petition which shall 6735 and the validity of Comelec Resolution 2300 will
laws which the Commission is required to enforce contain the proposition and the required number of not ipso
and administer x x x." Finally and most relevantly, signatories. Under Sec. 5(c) thereof, the petition
Section 20 of Ra 6735 specifically authorizes shall state the following:
__________________
Comelec "to promulgate rules and regulations as
may be necessary to carry out the purposes of this
'c.1 contents or text of the [provision or
Act." "Within thirty (30) days from receipt of the petition,
provisions] sought to be x x x amended,
and after the determination of its sufficiency, the
x x x;
Comelec shall publish the same in Filipino and
"In my dissent in Santiago, I wrote that "there is
English at least twice in newspapers of general
a right way to do the right thing at the right
c.2 the proposition [in full text]; and local circulation, and set the date of the
time and for the right reason." Let me explain
plebiscite. The conduct of the plebiscite should not
further.
be earlier than sixty (60) days, but not later than
c.3 the reason or reasons therefor [fully
ninety (90) days after certification by the Comelec
and clearly explained];
The Right Thing of the sufficiency of the petition. The proposition, if
approved by a majority of the votes cast in the
c.4 that it is not one of exceptions plebiscite, becomes effective as of the day of the
"A people's initiative is direct democracy in action.
provided herein; plebiscite.
It is the right thing that citizens may avail
themselves of to articulate their will. It is a new and
treasured feature of the Filipino constitutional c.5 signatures of the petitioners or "From the foregoing, it should be clear that my
system. Even the majority implicitly conceded its registered voters; and position upholding the adequacy of RA 6735 and
value and worth in our legal firmament when it the validity of Comelec Resolution 2300 will
implored Congress "not to tarry any longer in not ipso facto validate the PIRMA petition and
complying with the constitutional mandate to c.6 an abstract or summary proposition automatically lead to a plebiscite to amend the
provide for implementation of the right (of initiative) in not more than one hundred (100) Constitution. Far from it. Among others, PIRMA
words which shall be legibly written or
of the people x x x." Hence, in the en banc case must still satisfactorily hurdle the following
of Subic Bay Metropolitan Authority vs. Comelec, printed at the top of every page of the searching issues:
[G.R. No. 125416, September 26, 1996], this Court petition.'
unanimously held that "(l)ike elections, initiative
1. Does the proposed change – the lifting of the
and referendum are powerful and valuable modes "Section 8(f) of Comelec Resolution 2300 term limits of elective officials -- constitute a mere
of expressing popular additionally requires that the petition include a amendment and not a revision of the Constitution?
formal designation of the duly authorized
PIRMA therein," since the Commission had "only complied" representatives of the signatories.
2. Which registry of voters will be used to verify the
with the Santiago Decision.
signatures in the petition? This question is relevant
"Being a constitutional requirement, the number of considering that under RA 8189, the old registry of
__________________ signatures becomes a condition precedent to the voters used in the 1995 national elections was
filing of the petition, and is jurisdictional. Without
voided after the barangay elections on May 12,
such requisite signatures, the Commission 1997, while the new list may be used starting only
sovereignty. And this Court as a matter of policy shall motu proprio reject the petition. in the elections of May 1998.
and doctrine will exert every effort to nurture,
protect and promote their legitimate exercise."
"Where the initiators have substantially complied 3. Does the clamor for the proposed change in the
with the above requirements, they may thence file Constitution really emanate from the people who
The Right Way the petition with the Comelec which is tasked to
signed the petition for initiative? Or it is the
determine the sufficiency thereof and to verify the beneficiaries of term extension who are in fact
signatures on the basis of the registry list of voters, orchestrating such move to advance their own
"From the outset, I have already maintained the
voters' affidavits and voters' identification cards. In
view that "taken together and interpreted properly political self-interest?
deciding whether the petition is sufficient, the
and liberally, the Constitution (particularly Art.
Comelec shall also determine if the proposition is
XVII, Sec. 2), RA 6735 and Comelec Resolution
proper for an initiative, i.e., if it consists of an 4. Are the six million signatures genuine and
2300 provide more than sufficient authority to
amendment, not a revision, of the Constitution. verifiable? Do they really belong to qualified warm
implement, effectuate and realize our people's
Any decision of the electoral body may be bodies comprising at least 12% of the registered
power to amend the Constitution." Let me now
appealed to the Supreme Court within thirty (30) voters nationwide, of which every legislative
demonstrate the adequacy of RA 6735 by
days from notice. district is represented by at least 3% of the
outlining, in concrete terms, the steps to be taken
registered voters therein?
– the right way – to amend the Constitution
through a people's initiative.
"I shall expound on the third question in the next "In Garcia vs. Commission on Elections, we the majority effectively abrogated a constitutional
section, The Right Reason. Question Nos. 1 and 2 described initiative, along with referendum, as the right of our people. That is why in my Separate
above, while important, are basically legal in 'ultimate weapon of the people to negate Opinion in Santiago, I exclaimed that such
character and can be determined by government malfeasance and misfeasance.' precipitate action "is equivalent to burning the
argumentation and memoranda. However, In Subic Bay, we specified that 'initiative is entirely whole house to exterminate the rats, and to killing
Question No. 4 involves not only legal issues but the work of the electorate x x x a process of the patient to relieve him of pain." I firmly maintain
gargantuan hurdles of factual determination. This lawmaking by the people themselves without the that to defeat PIRMA's effort, there is no need to
to my mind is the crucible, the litmus test, of a participation and against the wishes of their "burn" the constitutional right to initiative. If
people's petition for initiative. If herein petitioners, elected representatives.' As ponente of Subic PIRMA's exercise is not "legitimate," it can be
led by PIRMA, succeed in proving -- not just Bay, I stand foursquare on this principle: The exposed as such in the ways I have discussed –
alleging -- that six million voters of this country right to amend through initiative belongs only short of abrogating the right itself. On the other
indeed want to amend the Constitution, what to the people – not to the government and its hand, if PIRMA's position is proven to be legitimate
power on earth can stop them? Not this Court, not minions. This principle finds clear support from – if it hurdles the four issues I outlined earlier – by
the Comelec, not even the President or Congress. utterances of many constitutional commissioners all means, we should allow and encourage it. But
like those quoted below: the majority's theory of statutory inadequacy has
pre-empted – unnecessarily and invalidly, in my
facto validate the PIRMA petition and automatically lead to a
view – any judicial determination of such
plebiscite to amend the Constitution. Far from it." I stressed "[Initiative is] a reserve power of the sovereign
legitimacy or illegitimacy. It has silenced the quest
that PIRMA must show the following, among others: people, when they are dissatisfied with the
for truth into the interstices of the PIRMA petition.
National Assembly x x x [and] precisely a fallback
position of the people in the event that they are
__________________
dissatisfied." -- Commissioner Ople The Right Time

"It took only one million people to stage a peaceful


"[Initiative is] a check on a legislative that is not "The Constitution itself sets a time limitation on
revolution at EDSA, and the very rafters and
responsive [and resorted to] only if the legislature when changes thereto may be proposed. Section
foundations of the martial law society trembled,
is not as responsive to the vital and urgent needs 2 of Article XVII precludes amendments "within
quaked and crumbled. On the other hand, PIRMA
of people." -- Commissioner Gascon five years following [its] ratification x x x nor
and its co-petitioners are claiming that they have
oftener than once every five years thereafter."
gathered six million signatures. If, as claimed by
Since its ratification, the 1987 Constitution has
many, these six million signatures are fraudulent, (1) The proposed change -- the lifting of term limits of
never been amended. Hence, the five-year
then let them be exposed and damned for all elective officials -- "constitute[s] a mere amendment and not
prohibition is now inoperative and amendments
history in a signature-verification process a revision of the Constitution."
may theoretically be proposed at any time.
conducted under our open system of legal
advocacy.
_________________
"Be that as it may, I believe – given the present
circumstances – that there is no more time to lift
"More than anything else, it is the truth that I, as a
"[Initiative is an] extraordinary power given to the term limits to enable incumbents to seek reelection
member of this Court and as a citizen of this
people [and] reserved for the people [which] in the May 11, 1998 polls. Between today and the
country, would like to seek: Are these six million
should not be frivolously resorted to." -- next national
signatures real? By insisting on an entirely new
Commissioner Romulo
doctrine of statutory inadequacy, the majority
effectively suppressed the quest for that truth. (2) The "six million signatures are genuine and verifiable";
"Indeed, if the powers-that-be desire to amend the and they "really belong to qualified warm bodies comprising
Constitution, or even to revise it, our Charter itself at
The Right Reason
provides them other ways of doing so, namely, by
calling a constitutional convention or constituting
__________________
"As mentioned, the third question that must be Congress into a constituent assembly. These are
answered, even if the adequacy of RA 6735 and officialdom's weapons. But initiative belongs to the
the validity of Comelec Resolution 2300 were people. elections, less than eight (8) months
upheld by the majority is: Does the clamor for the remain. Santiago, where the single issue of the
proposed change to the Constitution really sufficiency of RA 6735 was resolved, took this
"In the present case, are PIRMA and its co-
emanate from the people who signed the petition Court three (3) months, and another two (2)
petitioners legitimate people's organizations or are
for initiative? Or is it the beneficiaries of term months to decide the motion for reconsideration.
they merely fronts for incumbents who want to
extension who are in fact orchestrating such move The instant case, where the same issue is also
extend their terms? This is a factual question
to advance their own political self-interests? In raised by the petitioners, took two months, not
which, unfortunately, cannot be judicially answered
other words, is PIRMA's exercise of the right to counting a possible motion for reconsideration.
anymore, because the Supreme Court majority
initiative being done in accordance with our These time spans could not be abbreviated any
ruled that the law that implements it, RA 6735, is
Constitution and our laws? Is such attempted further, because due process requires that all
inadequate or insufficient insofar as initiatives to
exercise legitimate?
the Constitutions are concerned. With such ruling,
parties be given sufficient time to file their hereafter and the morrow. Let me therefore stress, and yet they changed the history of our country.
pleadings. by way of epilogue, my unbending credo in favor PIRMA claims six times that number, not just from
of our people's right to initiative. the National Capital Region but from all over the
country. Is this claim through the invention of its
"Thus, even if the Court were to rule now in favor
novel theory of statutory insufficiency, the Court's
of the adequacy of RA 6735 – as I believe it least 12% of the registered voters nationwide, of which every
majority has stifled the only legal method of
should – and allow the Comelec to act on the legislative district is represented by at least 3% of the
determining whether PIRMA is real or not, whether
PIRMA petition, such eight-month period will not registered voters therein."
there is indeed a popular clamor to lift term limits
be enough to tackle the four weighty issues I
of elected officials, and whether six million voters
mentioned earlier, considering that two of them
__________________ want to initiate amendments to their most basic
involve tedious factual questions. The Comelec's
law. In suppressing a judicial answer to such
decision on any of these issues can still be
questions, the Court may have unwittingly yielded
elevated to this Court for review, and Epilogue to PIRMA the benefit of the legal presumption of
reconsiderations on our decisions on each of
legality and regularity. In its misplaced zeal to
those issues may again be sought.
"I believe in democracy – in our people's natural exterminate the rats, it burned down the whole
right to determine our own destiny. house. It unceremoniously divested the people of
"Comelec's herculean task alone of verifying each a basic constitutional right.
of the six million signatures is enormously time-
consuming, considering that any person may "I believe in the process of initiative as a
democratic method of enabling our people to In both Opinions, I concluded that we must implement "the
question the authenticity of each and every
express their will and chart their history. Initiative is right thing [initiative] in the right way at the right time and for
signature, initially before the election registrar,
an alternative to bloody revolution, internal chaos the right reason."
then before the Comelec on appeal and finally,
before this Court in a separate proceeding. and civil strife. It is an inherent right of the people
– as basic as the right to elect, the right to self-
Moreover, the plebiscite itself – assuming such In the present case, I steadfastly stand by my foregoing
stage can be reached – may be scheduled only determination and the right to individual liberties. I Opinions in Santiago and PIRMA. Tested against them, the
after sixty (60) but not more than ninety (90) days, believe that Filipinos have the ability and the present Petition of Raul Lambino and Erico Aumentado must
capacity to rise above themselves, to use this right be DISMISSED. Unfortunately, the right thing is being
from the time the Comelec and this Court, on
appeal, finally declare the petition to be sufficient. of initiative wisely and maturely, and to choose rushed in the wrong way and for the wrong reasons. Let
what is best for themselves and their posterity. me explain.
"Meanwhile, under Comelec Resolution 2946,
political parties, groups organizations or coalitions "Such beliefs, however, should not be equated No Grave Abuse
may start selecting their official candidates for with a desire to perpetuate a particular official or
President, Vice President and Senators on group of officials in power. Far from it. Such
perpetuation is anathema to democracy. My firm of Discretion by Comelec
November 27, 1997; the period for filing
certificates of candidacy is from January 11 to conviction that there is an adequate law
February 9, 1998; the election period and implementing the constitutional right of initiative
As in PIRMA, I find no grave abuse of discretion in
campaign for national officials start on February does not ipso facto result in the victory of the
Comelec's dismissal of the Lambino Petition. After all, the
PIRMA petition or of any proposed constitutional
10, 1998, while the campaign period for other Commission merely followed the holding
elective officials, on March 17, 1998. This means, change. There are, after all, sufficient safeguards
in Santiago permanently
by the time PIRMA's proposition is ready – if ever to guarantee the proper use of such constitutional
right and to forestall its misuse and
– for submission directly to the voters at large, it
will have been overcome by the elections. Time abuse. First, initiative cannot be used to revise the ____________________
will simply run out on PIRMA, if the intention is to Constitution, only to amend it. Second, the
petitioners' signatures must be validated against
lift term limits in time for the 1998 elections. "In the ultimate, the mission of the judiciary is to
an existing list of voters and/or voters' identification
discover truth and to make it prevail. This mission
cards. Third, initiative is a reverse power of and by
"That term limits may no longer be lifted prior to is undertaken not only to resolve the vagaries of
the people, not of incumbent officials and their
present events but also to build the pathways of
the 1998 elections via a people's initiative does not machinators. Fourth and most important of all, the
detract one whit from (1) my firm conviction that tomorrow. The sum total of the entire process of
signatures must be verified as real and genuine;
RA 6735 is sufficient and adequate to implement adversarial litigation is the verity of facts and the
not concocted, fictitious or fabricated. The only
application of law thereto. By the majority cop-out
this constitutional right and, more important, (2) my legal way to do this is to enable the Commission
faith in the power of the people to initiate changes in this mission of discovery, our country and our
on Elections to conduct a nationwide verification
in local and national laws and the Constitution. In people have been deprived not only of a basic
process as mandated by the Constitution and the
constitutional right, as earlier noted, but also of the
fact, I think the Court can deliberate on these two law. Such verification, it bears stressing, is subject
items even more serenely and wisely now that the judicial opportunity to verify the truth."
to review by this Court.
debates will be free from the din and distraction of
the 1998 elections. After all, jurisprudence is not enjoining the poll body "from entertaining or taking
merely for the here and now but, more so, for the "There were, by the most generous estimate, only
cognizance of any petition for initiative on amendments to
a million people who gathered at EDSA in 1986,
the Constitution until a sufficient law shall have been validly Even assuming further that this Court rules, as I believe it philosophy, the underlying principles, and the structure of
enacted to provide for the implementation of the system." should (for the reasons given in my Opinions in Santiago and government of our Republic.
PIRMA), that Republic Act 6735 is indeed sufficient to
implement an initiative to amend the Constitution, still, no
Indeed, the Comelec did not violate the Constitution, the Verily, even bills creating or changing the administrative
grave abuse of discretion can be attributed to the Comelec
laws or any jurisprudence.4 Neither can whim, caprice, structure of local governments take several weeks or even
for merely following prevailing jurisprudence extant at the
arbitrariness or personal bias be attributed to the months of drafting, reading, and debating before Congress
time it rendered its ruling in question.
Commission.5 Quite the contrary, it prudently followed this can approve them. How much more when it comes to
Court's jurisprudence in Santiago and PIRMA. Even constitutional changes?
assuming arguendo that Comelec erred in ruling on a very Only Amendments,
difficult and unsettled question of law, this Court still cannot
A change in the form of government of our country from
attribute grave abuse of discretion to the poll body with
Not Revisions presidential-bicameral to parliamentary-unicameral is
respect to that action.6
monumental. Even the initiative proponents admit this fact.
So, why should a revision be rammed down our people's
I reiterate that only amendments, not revisions, may be
The present Lambino Petition is in exactly the same situation throats without the benefit of intelligent discussion in a
the proper subject of an initiative to change the
as that of PIRMA in 1997. The differences pointed out by deliberative assembly?
Constitution. This principle is crystal clear from even a
Justice Reynato S. Puno are, with due respect, superficial. It
layperson's reading of the basic law.9
is argued that, unlike the present Lambino
Added to the constitutional mandate barring revisions is the
Petition, PIRMA did not contain verified signatures. These
provision of RA 6735 expressly prohibiting petitions for
are distinctions that do not make a difference. Precisely, I submit that changing the system of government from
initiative from "embracing more than one subject
Justice Puno is urging a remand, because the verification presidential to parliamentary and the form of the legislature
matter."10 The present initiative covers at least two subjects:
issue is "contentious" and remains unproven by from bicameral to unicameral contemplates an overhaul of
(1) the shift from a presidential to a parliamentary form of
petitioners. Clearly, both the PIRMA and the Lambino the structure of government. The ponencia has amply
government; and (2) the change from a bicameral to a
Petitions contain unverified signatures. Therefore, they demonstrated that the merger of the legislative and the
unicameral legislature.11 Thus, even under Republic Act
both deserve the same treatment: DISMISSAL. executive branches under a unicameral-parliamentary
6735 -- the law that Justice Puno and I hold to be sufficient
system, "[b]y any legal test and under any jurisdiction," will
and valid -- the Lambino Petition deserves dismissal.
"radically alter the framework of government as set forth in
Besides, the only reason given in the unanimous Resolution
the Constitution." Indeed, the proposed changes have an
on PIRMA v. Comelec was that the Commission had "only
overall implication on the entire Constitution; they effectively 12 Percent and 3 Percent Thresholds
complied" with this Court's Decision in Santiago, the same
rewrite its most important and basic provisions. The prolixity Not Proven by Petitioners
reason given by Comelec in this case. The Separate
and complexity of the changes cannot be categorized, even
Opinions in PIRMA gave no other reason. No one argued,
by semantic generosity, as "amendments."
even remotely, that the PIRMA Petition should have The litmus test of a people's petition for initiative is its ability
been dismissed because the signatures were unverified. to muster the constitutional requirement that it be supported
In addition, may I say that of the three modes of changing by at least 12 percent of the registered voters nationwide, of
the Constitution, revisions (or amendments) may be which at least 3 percent of the registered voters in every
To stress, I adhere to my Opinion in PIRMA that, "[b]eing a
proposed only through the first two: by Congress or by a legislative district must be represented. As pointed out by
constitutional requirement, the number of signatures
constitutional convention. Under the third mode -- people's Intervenors One Voice, Inc., et al., however, records show
becomes a condition precedent to the filing of the petition,
initiative -- only amendments are allowed. Many of the that there was a failure to meet the minimum percentages
and is jurisdictional.7 Without those signatures, the Comelec
justices' Opinions have cited the historical, philosophical and required.12
shall motu proprio reject the petition."
jurisprudential bases of their respective positions. I will not
add to the woes of the reader by reiterating them here.
Even Justice Puno concedes that the 12 percent and 3
So, until and unless Santiago is revisited and changed by
percent constitutional requirements involve "contentious
this Court or the legal moorings of the exercise of the right
Suffice it to say that, to me, the practical test to differentiate facts," which have not been proven by the Lambino Petition.
are substantially changed, the Comelec cannot be faulted
an amendment from a revision is found in the Constitution Thus, he is urging a remand to the Comelec.
for acting in accord with this Court's pronouncements.
itself: a revision may be done only when the proposed
Respondent Commission has no discretion, under any
change can be drafted, defined, articulated, discussed
guise, to refuse enforcement of any final decision of this But a remand is both imprudent and futile. It is imprudent
and agreed upon after a mature and democratic debate
Court.8 The refusal of the poll body to act on the Lambino because the Constitution itself mandates the said requisites
in a deliberative body like Congress or a
Petition was its only recourse. Any other mode of action of an initiative petition. In other words, a petition that does
Convention. The changes proposed must necessarily be
would appear not only presumptuous, but also not show the required percentages is fatally defective
scrutinized, as their adoption or non-adoption must result
contemptuous. It would have constituted defiance of the and must be dismissed, as the Delfin Petition was,
from an informed judgment.
Court and would have surely been struck down as grave in Santiago.
abuse of discretion and contumacious disregard of the
supremacy of this Court as the final arbiter of justiciable Indeed, the constitutional bodies that drafted the 1935, the
controversies. Furthermore, as the ponencia had discussed extensively, the
1972 and the 1987 Constitutions had to spend many months
present Petition is void and unconstitutional. It points out that
of purposeful discussions, democratic debates and rounds of
the Petition dismally fails to comply with the constitutional
voting before they could agree on the wordings covering the
requirement that an initiative must be directly proposed by
the people. Specifically, the ponencia has amply established At bottom, the issue in this case is simply the Rule of Verily, the Supreme Court is now on the crossroads of
that petitioners were unable to show that the Lambino Law.13 Initiative, like referendum and recall, is a treasured history. By its decision, the Court and each of its members
Petition contained, or incorporated by attachment, the full feature of the Filipino constitutional system. It was born out shall be judged by posterity. Ten years, fifty years, a hundred
text of the proposed changes. of our world-admired and often-imitated People Power, years -- or even a thousand years -- from now, what the
but its misuse and abuse must be resolutely rejected. Court did here, and how each justice opined and voted, will
Democracy must be cherished, but mob rule vanquished. still be talked about, either in shame or in pride. Indeed, the
So, too, a remand is futile. Even if the required
hand-washing of Pontius Pilate, the abomination of Dred
percentages are proven before the Commission, the
Scott, and the loathing of Javellana still linger and haunt to
Petition must still be dismissed for proposing a revision, The Constitution is a sacred social compact, forged
this day.
not an amendment, in gross violation of the between the government and the people, between each
Constitution. At the very least, it proposes more than one individual and the rest of the citizenry. Through it, the people
subject, in violation of Republic Act 6735. have solemnly expressed their will that all of them shall be Let not this case fall into the same damnation. Rather, let
governed by laws, and their rights limited by agreed-upon this Court be known throughout the nation and the world for
covenants to promote the common good. If we are to uphold its independence, integrity, industry and intelligence.
Summation
the Rule of Law and reject the rule of the mob, we must
faithfully abide by the processes the Constitution has
WHEREFORE, I vote to DISMISS the Petition.
Petitioners plead with this Court to hear the voice of the ordained in order to bring about a peaceful, just and
people because, in the words of Justice Puno who supports humane society. Assuming arguendo that six million people
them, the "people's voice is sovereign in a democracy." allegedly gave their assent to the proposed changes in the G.R. No. 122156 February 3, 1997
Constitution, they are nevertheless still bound by the
social covenant -- the present Constitution -- which was
I, too, believe in heeding the people's voice. I reiterate my MANILA PRINCE HOTEL petitioner,
ratified by a far greater majority almost twenty years ago. 14 I
Separate Opinion in PIRMA that "initiative is a democratic do not denigrate the majesty of the sovereign will; rather, I vs.
method of enabling our people to express their will and chart GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA
elevate our society to the loftiest perch, because our
their history. x x x. I believe that Filipinos have the ability and government must remain as one of laws and not of men. HOTEL CORPORATION, COMMITTEE ON
the capacity to rise above themselves, to use this right of PRIVATIZATION and OFFICE OF THE GOVERNMENT
initiative wisely and maturely, and to choose what is best for CORPORATE COUNSEL, respondents.
themselves and their posterity." Upon assuming office, each of the justices of the Supreme
Court took a solemn oath to uphold the Constitution. Being
the protectors of the fundamental law as the highest
This belief will not, however, automatically and blindly result BELLOSILLO, J.:
expression of the sovereign will, they must subject to the
in an initiative to change the Constitution, because the strictest scrutiny any attempt to change it, lest it be
present Petition violates the following: trivialized and degraded by the assaults of the mob and The FiIipino First Policy enshrined in the 1987
of ill-conceived designs. The Court must single- Constitution, i.e., in the grant of rights, privileges, and
· The Constitution (specifically Article XVII, which allows mindedly defend the Constitution from bogus concessions covering the national economy and patrimony,
only amendments, not revisions, and requires definite efforts falsely attributed to the sovereign people. the State shall give preference to qualified Filipinos,1 is in
percentages of verified signatures) oked by petitioner in its bid to acquire 51% of the shares of
The judiciary may be the weakest branch of government. the Manila Hotel Corporation (MHC) which owns the historic
Manila Hotel. Opposing, respondents maintain that the
· The law (specifically, Republic Act 6735, which prohibits Nonetheless, when ranged against incessant voices from the
more powerful branches of government, it should never provision is not self-executing but requires an implementing
petitions containing more than one subject)
cower in submission. On the other hand, I daresay that the legislation for its enforcement. Corollarily, they ask whether
the 51% shares form part of the national economy and
same weakness of the Court becomes its strength when it
· Jurisprudence (specifically, PIRMA v. Comelec, which speaks independently through decisions that rightfully patrimony covered by the protective mantle of the
dismissed the Petition then under consideration on the uphold the supremacy of the Constitution and the Rule of Constitution.
ground that, by following the Santiago ruling, the Comelec Law. The strength of the judiciary lies not in its lack of brute
had not gravely abused its discretion). power, but in its moral courage to perform its constitutional The controversy arose when respondent Government
duty at all times against all odds. Its might is in its being Service Insurance System (GSIS), pursuant to the
I submit further that a remand of the Lambino Petition is both right.15 privatization program of the Philippine Government under
imprudent and futile. More tellingly, it is a cop-out, a hand- Proclamation No. 50 dated 8 December 1986, decided to sell
washing already discredited 2000 years ago. Instead of During the past weeks, media outfits have been ablaze with through public bidding 30% to 51% of the issued and
finger-pointing, I believe we must confront the issues head outstanding shares of respondent MHC. The winning bidder,
reports and innuendoes about alleged carrots offered and
on, because the people expect no less from this august and sticks drawn by those interested in the outcome of this or the eventual "strategic partner," is to provide management
venerable institution of supreme justice. case.16 There being no judicial proof of these allegations, I expertise and/or an international marketing/reservation
system, and financial support to strengthen the profitability
shall not comment on them for the nonce, except to quote
the Good Book, which says, "There is nothing hidden that and performance of the Manila Hotel.2 In a close bidding held
Epilogue
will not be revealed, and nothing secret that will not be on 18 September 1995 only two (2) bidders participated:
petitioner Manila Prince Hotel Corporation, a Filipino
known and come to light."17
corporation, which offered to buy 51% of the MHC or
15,300,000 shares at P41.58 per share, and Renong
Berhad, a Malaysian firm, with ITT-Sheraton as its hotel a. Execution of the GSIS, a government-owned and controlled corporation, the
operator, which bid for the same number of shares at P44.00 necessary contracts hotel business of respondent GSIS being a part of the
per share, or P2.42 more than the bid of petitioner. with GSIS/MHC not tourism industry is unquestionably a part of the national
later than October economy. Thus, any transaction involving 51% of the shares
23, 1995 (reset to of stock of the MHC is clearly covered by the term national
Pertinent provisions of the bidding rules prepared by
November 3, 1995); economy, to which Sec. 10, second par., Art. XII, 1987
respondent GSIS state —
and Constitution, applies.7

I. EXECUTION OF
b. Requisite It is also the thesis of petitioner that since Manila Hotel is
THE NECESSARY
approvals from the part of the national patrimony and its business also
CONTRACTS
GSIS/MHC and unquestionably part of the national economy petitioner
WITH GSIS/MHC
COP (Committee on should be preferred after it has matched the bid offer of the

Privatization)/OGC Malaysian firm. For the bidding rules mandate that if for any
C (Office of the reason, the Highest Bidder cannot be awarded the Block of
1. The Highest Bidder must comply with Government Shares, GSIS may offer this to the other Qualified Bidders
the conditions set forth below by Corporate Counsel) that have validly submitted bids provided that these Qualified
October 23, 1995 (reset to November 3, are obtained.3 Bidders are willing to match the highest bid in terms of price
1995) or the Highest Bidder will lose the per share.8
right to purchase the Block of Shares
Pending the declaration of Renong Berhad as the winning
and GSIS will instead offer the Block of
bidder/strategic partner and the execution of the necessary Respondents except. They maintain that: First, Sec. 10,
Shares to the other Qualified Bidders:
contracts, petitioner in a letter to respondent GSIS dated 28 second par., Art. XII, of the 1987 Constitution is merely a
September 1995 matched the bid price of P44.00 per share statement of principle and policy since it is not a self-
a. The Highest tendered by Renong Berhad.4 In a subsequent letter dated executing provision and requires implementing legislation(s)
Bidder must 10 October 1995 petitioner sent a manager's check issued . . . Thus, for the said provision to Operate, there must be
negotiate and by Philtrust Bank for Thirty-three Million Pesos existing laws "to lay down conditions under which business
execute with the (P33.000.000.00) as Bid Security to match the bid of the may be done."9
GSIS/MHC the Malaysian Group, Messrs. Renong Berhad . . .5 which
Management respondent GSIS refused to accept.
Second, granting that this provision is self-executing, Manila
Contract,
Hotel does not fall under the term national patrimony which
International
On 17 October 1995, perhaps apprehensive that respondent only refers to lands of the public domain, waters, minerals,
Marketing/Reservati
GSIS has disregarded the tender of the matching bid and coal, petroleum and other mineral oils, all forces of potential
on System Contract
that the sale of 51% of the MHC may be hastened by energy, fisheries, forests or timber, wildlife, flora and fauna
or other type of
respondent GSIS and consummated with Renong Berhad, and all marine wealth in its territorial sea, and exclusive
contract specified
petitioner came to this Court on prohibition and mandamus. marine zone as cited in the first and second paragraphs of
by the Highest
On 18 October 1995 the Court issued a temporary Sec. 2, Art. XII, 1987 Constitution. According to respondents,
Bidder in its
restraining order enjoining respondents from perfecting and while petitioner speaks of the guests who have slept in the
strategic plan for
consummating the sale to the Malaysian firm. hotel and the events that have transpired therein which make
the Manila Hotel. . .
the hotel historic, these alone do not make the hotel fall
.
under the patrimony of the nation. What is more, the
On 10 September 1996 the instant case was accepted by
mandate of the Constitution is addressed to the State, not to
the Court En Banc after it was referred to it by the First
b. The Highest respondent GSIS which possesses a personality of its own
Division. The case was then set for oral arguments with
Bidder must separate and distinct from the Philippines as a State.
former Chief Justice Enrique M. Fernando and Fr. Joaquin
execute the Stock
G. Bernas, S.J., as amici curiae.
Purchase and Sale
Third, granting that the Manila Hotel forms part of
Agreement with
the national patrimony, the constitutional provision invoked is
GSIS . . . . In the main, petitioner invokes Sec. 10, second par., Art. XII,
still inapplicable since what is being sold is only 51% of the
of the 1987 Constitution and submits that the Manila
outstanding shares of the corporation, not the hotel building
Hotel has been identified with the Filipino nation and has
K. DECLARATION nor the land upon which the building stands. Certainly, 51%
practically become a historical monument which reflects the
OF THE WINNING of the equity of the MHC cannot be considered part of
vibrancy of Philippine heritage and culture. It is a proud
BIDDER/STRATEG the national patrimony. Moreover, if the disposition of the
legacy of an earlier generation of Filipinos who believed in
IC PARTNER — shares of the MHC is really contrary to the Constitution,
the nobility and sacredness of independence and its power
petitioner should have questioned it right from the beginning
and capacity to release the full potential of the Filipino
and not after it had lost in the bidding.
The Highest Bidder will be declared the people. To all intents and purposes, it has become a part of
Winning Bidder/Strategic Partner after the national patrimony.6 Petitioner also argues that since
the following conditions are met: 51% of the shares of the MHC carries with it the ownership Fourth, the reliance by petitioner on par. V., subpar. J. 1., of
of the business of the hotel which is owned by respondent the bidding rules which provides that if for any reason, the
Highest Bidder cannot be awarded the Block of Shares, grants may be enjoyed or protected, is self-executing. Thus preference to
GSIS may offer this to the other Qualified Bidders that have a constitutional provision is self-executing if the nature and qualified
validly submitted bids provided that these Qualified Bidders extent of the right conferred and the liability imposed are Filipinos vis-a-
are willing to match the highest bid in terms of price per fixed by the constitution itself, so that they can be vis Filipinos who are
share, is misplaced. Respondents postulate that the privilege determined by an examination and construction of its terms, not qualified. So,
of submitting a matching bid has not yet arisen since it only and there is no language indicating that the subject is why do we not
takes place if for any reason, the Highest Bidder cannot be referred to the legislature for action. 13 make it clear? To
awarded the Block of Shares. Thus the submission by qualified Filipinos as
petitioner of a matching bid is premature since Renong against aliens?
As against constitutions of the past, modern constitutions
Berhad could still very well be awarded the block of shares
have been generally drafted upon a different principle and
and the condition giving rise to the exercise of the privilege
have often become in effect extensive codes of laws THE PRESIDENT.
to submit a matching bid had not yet taken place.
intended to operate directly upon the people in a manner What is the
similar to that of statutory enactments, and the function of question of
Finally, the prayer for prohibition grounded on grave abuse constitutional conventions has evolved into one more like Commissioner
of discretion should fail since respondent GSIS did not that of a legislative body. Hence, unless it is expressly Rodrigo? Is it to
exercise its discretion in a capricious, whimsical manner, and provided that a legislative act is necessary to enforce a remove the word
if ever it did abuse its discretion it was not so patent and constitutional mandate, the presumption now is that all "QUALIFIED?".
gross as to amount to an evasion of a positive duty or a provisions of the constitution are self-executing If the
virtual refusal to perform a duty enjoined by law. Similarly, constitutional provisions are treated as requiring legislation
MR. RODRIGO. No,
the petition for mandamus should fail as petitioner has no instead of self-executing, the legislature would have the
no, but say
clear legal right to what it demands and respondents do not power to ignore and practically nullify the mandate of the
definitely "TO
have an imperative duty to perform the act required of them fundamental law.14 This can be cataclysmic. That is why the
QUALIFIED
by petitioner. prevailing view is, as it has always been, that —
FILIPINOS" as
against whom? As
We now resolve. A constitution is a system of fundamental . . . in case of doubt, the Constitution against aliens or
laws for the governance and administration of a nation. It is should be considered self-executing over aliens?
supreme, imperious, absolute and unalterable except by the rather than non-self-executing . . . .
authority from which it emanates. It has been defined as Unless the contrary is clearly intended,
MR. NOLLEDO.
the fundamental and paramount law of the nation. 10 It the provisions of the Constitution should
Madam President, I
prescribes the permanent framework of a system of be considered self-executing, as a
think that is
government, assigns to the different departments their contrary rule would give the legislature
understood. We use
respective powers and duties, and establishes certain fixed discretion to determine when, or
the word
principles on which government is founded. The fundamental whether, they shall be effective. These
"QUALIFIED"
conception in other words is that it is a supreme law to which provisions would be subordinated to the
because
all other laws must conform and in accordance with which all will of the lawmaking body, which could
the existing laws or
private rights must be determined and all public authority make them entirely meaningless by
prospective laws
administered. 11 Under the doctrine of constitutional simply refusing to pass the needed
will always lay down
supremacy, if a law or contract violates any norm of the implementing statute. 15
conditions under
constitution that law or contract whether promulgated by the
which business may
legislative or by the executive branch or entered into by
Respondents argue that Sec. 10, second par., Art. XII, of the be done. For
private persons for private purposes is null and void and
1987 Constitution is clearly not self-executing, as they quote example,
without any force and effect. Thus, since the Constitution is
from discussions on the floor of the 1986 Constitutional qualifications on the
the fundamental, paramount and supreme law of the nation,
Commission — setting up of other
it is deemed written in every statute and contract.
financial structures,
et cetera (emphasis
MR. RODRIGO.
Admittedly, some constitutions are merely declarations of supplied by
Madam President, I
policies and principles. Their provisions command the respondents)
am asking this
legislature to enact laws and carry out the purposes of the
question as the
framers who merely establish an outline of government
Chairman of the MR. RODRIGO. It is
providing for the different departments of the governmental
Committee on Style. just a matter of
machinery and securing certain fundamental and inalienable
If the wording of style.
rights of citizens. 12 A provision which lays down a general
"PREFERENCE" is
principle, such as those found in Art. II of the 1987
given to
Constitution, is usually not self-executing. But a provision MR. NOLLEDO
QUALIFIED
which is complete in itself and becomes operative without Yes, 16
FILIPINOS," can it
the aid of supplementary or enabling legislation, or that
be understood as a
which supplies sufficient rule by means of which the right it
Quite apparently, Sec. 10, second par., of Art XII is couched of the youth in nation-building 23 the promotion of social Manila Hotel has become a landmark — a living testimonial
in such a way as not to make it appear that it is non-self- justice, 24 and the values of education. 25 Tolentino of Philippine heritage. While it was restrictively an American
executing but simply for purposes of style. But, certainly, the v. Secretary of Finance 26 refers to the constitutional hotel when it first opened in 1912, it immediately evolved to
legislature is not precluded from enacting other further laws provisions on social justice and human rights 27 and on be truly Filipino, Formerly a concourse for the elite, it has
to enforce the constitutional provision so long as the education. 28 Lastly, Kilosbayan, Inc. v. Morato 29 cites since then become the venue of various significant events
contemplated statute squares with the Constitution. Minor provisions on the promotion of general welfare, 30 the which have shaped Philippine history. It was called
details may be left to the legislature without impairing the sanctity of family life, 31 the vital role of the youth in nation- the Cultural Center of the 1930's. It was the site of the
self-executing nature of constitutional provisions. building 32 and the promotion of total human liberation and festivities during the inauguration of the Philippine
development. 33A reading of these provisions indeed clearly Commonwealth. Dubbed as the Official Guest House of the
shows that they are not judicially enforceable constitutional Philippine Government. it plays host to dignitaries and official
In self-executing constitutional provisions, the legislature
rights but merely guidelines for legislation. The very terms of visitors who are accorded the traditional Philippine
may still enact legislation to facilitate the exercise of powers
the provisions manifest that they are only principles upon hospitality. 36
directly granted by the constitution, further the operation of
which the legislations must be based. Res ipsa loquitur.
such a provision, prescribe a practice to be used for its
enforcement, provide a convenient remedy for the protection The history of the hotel has been chronicled in the book The
of the rights secured or the determination thereof, or place On the other hand, Sec. 10, second par., Art. XII of the of the Manila Hotel: The Heart and Memory of a City. 37During
reasonable safeguards around the exercise of the right. The 1987 Constitution is a mandatory, positive command which World War II the hotel was converted by the Japanese
mere fact that legislation may supplement and add to or is complete in itself and which needs no further guidelines or Military Administration into a military headquarters. When the
prescribe a penalty for the violation of a self-executing implementing laws or rules for its enforcement. From its very American forces returned to recapture Manila the hotel was
constitutional provision does not render such a provision words the provision does not require any legislation to put it selected by the Japanese together with Intramuros as the
ineffective in the absence of such legislation. The omission in operation. It is per se judicially enforceable When our two (2) places fro their final stand. Thereafter, in the 1950's
from a constitution of any express provision for a remedy for Constitution mandates that [i]n the grant of rights, privileges, and 1960's, the hotel became the center of political activities,
enforcing a right or liability is not necessarily an indication and concessions covering national economy and patrimony, playing host to almost every political convention. In 1970 the
that it was not intended to be self-executing. The rule is that the State shall give preference to qualified Filipinos, it means hotel reopened after a renovation and reaped numerous
a self-executing provision of the constitution does not just that — qualified Filipinos shall be preferred. And when international recognitions, an acknowledgment of the Filipino
necessarily exhaust legislative power on the subject, but any our Constitution declares that a right exists in certain talent and ingenuity. In 1986 the hotel was the site of a
legislation must be in harmony with the constitution, further specified circumstances an action may be maintained to failed coup d' etat where an aspirant for vice-president was
the exercise of constitutional right and make it more enforce such right notwithstanding the absence of any "proclaimed" President of the Philippine Republic.
available. 17 Subsequent legislation however does not legislation on the subject; consequently, if there is no statute
necessarily mean that the subject constitutional provision is especially enacted to enforce such constitutional right, such
For more than eight (8) decades Manila Hotel has bore mute
not, by itself, fully enforceable. right enforces itself by its own inherent potency and
witness to the triumphs and failures, loves and frustrations of
puissance, and from which all legislations must take their
the Filipinos; its existence is impressed with public interest;
bearings. Where there is a right there is a remedy. Ubi jus ibi
Respondents also argue that the non-self-executing nature its own historicity associated with our struggle for
remedium.
of Sec. 10, second par., of Art. XII is implied from the tenor sovereignty, independence and nationhood. Verily, Manila
of the first and third paragraphs of the same section which Hotel has become part of our national economy and
undoubtedly are not self-executing. 18 The argument is As regards our national patrimony, a member of the 1986 patrimony. For sure, 51% of the equity of the MHC comes
flawed. If the first and third paragraphs are not self-executing Constitutional Commission 34 explains — within the purview of the constitutional shelter for it
because Congress is still to enact measures to encourage comprises the majority and controlling stock, so that anyone
the formation and operation of enterprises fully owned by who acquires or owns the 51% will have actual control and
The patrimony of the Nation that should
Filipinos, as in the first paragraph, and the State still needs management of the hotel. In this instance, 51% of the MHC
be conserved and developed refers not
legislation to regulate and exercise authority over foreign cannot be disassociated from the hotel and the land on
only to out rich natural resources but
investments within its national jurisdiction, as in the third which the hotel edifice stands. Consequently, we cannot
also to the cultural heritage of out race.
paragraph, then a fortiori, by the same logic, the second sustain respondents' claim that the Filipino First
It also refers to our intelligence in arts,
paragraph can only be self-executing as it does not by its Policy provision is not applicable since what is being sold is
sciences and letters. Therefore, we
language require any legislation in order to give preference only 51% of the outstanding shares of the corporation, not
should develop not only our lands,
to qualified Filipinos in the grant of rights, privileges and the Hotel building nor the land upon which the building
forests, mines and other natural
concessions covering the national economy and patrimony. stands. 38
resources but also the mental ability or
A constitutional provision may be self-executing in one part
faculty of our people.
and non-self-executing in another. 19
The argument is pure sophistry. The term qualified
Filipinos as used in Our Constitution also includes
We agree. In its plain and ordinary meaning, the term
Even the cases cited by respondents holding that certain corporations at least 60% of which is owned by Filipinos.
patrimony pertains to heritage. 35 When the Constitution
constitutional provisions are merely statements of principles This is very clear from the proceedings of the 1986
speaks of national patrimony, it refers not only to the natural
and policies, which are basically not self-executing and only Constitutional Commission
resources of the Philippines, as the Constitution could have
placed in the Constitution as moral incentives to legislation,
very well used the term natural resources, but also to
not as judicially enforceable rights — are simply not in
the cultural heritage of the Filipinos. THE PRESIDENT.
point. Basco v. Philippine Amusements and Gaming
Commissioner
Corporation 20 speaks of constitutional provisions on
personal dignity, 21 the sanctity of family life, 22 the vital role
Davide is MR. DAVIDE. Is individual Filipinos
recognized. that the intention? but also Filipino-
controlled entities or
entities fully-
MR. DAVIDE. I MR. MONSOD.
controlled by
would like to Yes, because, in
Filipinos. 40
introduce an fact, we would be
amendment to the limiting it if we say
Nolledo that the preference The phrase preference to qualified Filipinos was
amendment. And should only be 100- explained thus —
the amendment percent Filipino.
would consist in
MR. FOZ. Madam
substituting the
MR: DAVIDE. I President, I would
words "QUALIFIED
want to get that like to request
FILIPINOS" with the
meaning clear Commissioner
following:
because Nolledo to please
"CITIZENS OF THE
"QUALIFIED restate his
PHILIPPINES OR
FILIPINOS" may amendment so that
CORPORATIONS
refer only to I can ask a
OR
individuals and not question.
ASSOCIATIONS
to juridical
WHOSE CAPITAL
personalities or
OR CONTROLLING MR. NOLLEDO. "IN
entities.
STOCK IS THE GRANT OF
WHOLLY OWNED RIGHTS,
BY SUCH MR. MONSOD. We PRIVILEGES AND
CITIZENS. agree, Madam CONCESSIONS
President. 39 COVERING THE
NATIONAL
xxx xxx xxx
ECONOMY AND
xxx xxx xxx
PATRIMONY, THE
MR. MONSOD. STATE SHALL
Madam President, MR. RODRIGO. GIVE
apparently the Before we vote, PREFERENCE TO
proponent is may I request that QUALIFIED
agreeable, but we the amendment be FILIPINOS."
have to raise a read again.
question. Suppose
MR FOZ. In
it is a corporation
MR. NOLLEDO. connection with that
that is 80-percent
The amendment will amendment, if a
Filipino, do we not
read: "IN THE foreign enterprise is
give it preference?
GRANT OF qualified and a
RIGHTS, Filipino enterprise is
MR. DAVIDE. The PRIVILEGES AND also qualified, will
Nolledo amendment CONCESSIONS the Filipino
would refer to an COVERING THE enterprise still be
individual Filipino. NATIONAL given a preference?
What about a ECONOMY AND
corporation wholly PATRIMONY, THE
MR. NOLLEDO.
owned by Filipino STATE SHALL
Obviously.
citizens? GIVE
PREFERENCE TO
QUALIFIED MR. FOZ. If the
MR. MONSOD. At
FILIPINOS." And foreigner is more
least 60 percent,
the word "Filipinos" qualified in some
Madam President.
here, as intended aspects than the
by the proponents, Filipino enterprise,
will include not only
will the Filipino still Lastly, the word qualified is also determinable. Petitioner was function;" (2) when the government is so significantly
be preferred? so considered by respondent GSIS and selected as one of involved with the private actor as to make the government
the qualified bidders. It was pre-qualified by respondent responsible for his action; and, (3) when the government has
GSIS in accordance with its own guidelines so that the sole approved or authorized the action. It is evident that the act of
MR. NOLLEDO.
inference here is that petitioner has been found to be respondent GSIS in selling 51% of its share in respondent
The answer is "yes."
possessed of proven management expertise in the hotel MHC comes under the second and third categories of "state
industry, or it has significant equity ownership in another action." Without doubt therefore the transaction. although
MR. FOZ. Thank hotel company, or it has an overall management and entered into by respondent GSIS, is in fact a transaction of
you, 41 marketing proficiency to successfully operate the Manila the State and therefore subject to the constitutional
Hotel. 44 command. 46
Expounding further on the Filipino First Policy provision
Commissioner Nolledo continues — The penchant to try to whittle away the mandate of the When the Constitution addresses the State it refers not only
Constitution by arguing that the subject provision is not self- to the people but also to the government as elements of the
executory and requires implementing legislation is quite State. After all, government is composed of three (3)
MR. NOLLEDO. Yes, Madam President. disturbing. The attempt to violate a clear constitutional divisions of power — legislative, executive and judicial.
Instead of "MUST," it will be "SHALL — provision — by the government itself — is only too Accordingly, a constitutional mandate directed to the State is
THE STATE SHALL GlVE
distressing. To adopt such a line of reasoning is to renounce correspondingly directed to the three(3) branches of
PREFERENCE TO QUALIFIED the duty to ensure faithfulness to the Constitution. For, even government. It is undeniable that in this case the subject
FILIPINOS. This embodies the so-called some of the provisions of the Constitution which evidently constitutional injunction is addressed among others to the
"Filipino First" policy. That means that
need implementing legislation have juridical life of their own Executive Department and respondent GSIS, a government
Filipinos should be given preference in and can be the source of a judicial remedy. We cannot instrumentality deriving its authority from the State.
the grant of concessions, privileges and simply afford the government a defense that arises out of the
rights covering the national patrimony. 42
failure to enact further enabling, implementing or guiding
It should be stressed that while the Malaysian firm offered
legislation. In fine, the discourse of Fr. Joaquin G. Bernas,
the higher bid it is not yet the winning bidder. The bidding
The exchange of views in the sessions of the Constitutional S.J., on constitutional government is apt —
rules expressly provide that the highest bidder shall only be
Commission regarding the subject provision was still further
declared the winning bidder after it has negotiated and
clarified by Commissioner Nolledo 43 — The executive department has a executed the necessary contracts, and secured the requisite
constitutional duty to implement laws, approvals. Since the "Filipino First Policy provision of the
Paragraph 2 of Section 10 explicitly including the Constitution, even before Constitution bestows preference on qualified Filipinos the
mandates the "Pro-Filipino" bias in all Congress acts — provided that there are mere tending of the highest bid is not an assurance that the
economic concerns. It is better known discoverable legal standards for highest bidder will be declared the winning bidder.
as the FILIPINO FIRST Policy . . . This executive action. When the executive Resultantly, respondents are not bound to make the award
provision was never found in previous acts, it must be guided by its own yet, nor are they under obligation to enter into one with the
Constitutions . . . . understanding of the constitutional highest bidder. For in choosing the awardee respondents are
command and of applicable laws. The mandated to abide by the dictates of the 1987 Constitution
responsibility for reading and the provisions of which are presumed to be known to all the
The term "qualified Filipinos" simply understanding the Constitution and the bidders and other interested parties.
means that preference shall be given to laws is not the sole prerogative of
those citizens who can make a viable Congress. If it were, the executive would
contribution to the common good, Adhering to the doctrine of constitutional supremacy, the
have to ask Congress, or perhaps the
because of credible competence and subject constitutional provision is, as it should be, impliedly
Court, for an interpretation every time
efficiency. It certainly does NOT written in the bidding rules issued by respondent GSIS, lest
the executive is confronted by a
mandate the pampering and preferential the bidding rules be nullified for being violative of the
constitutional command. That is not how
treatment to Filipino citizens or Constitution. It is a basic principle in constitutional law that all
constitutional government operates. 45
organizations that are incompetent or laws and contracts must conform with the fundamental law of
inefficient, since such an indiscriminate the land. Those which violate the Constitution lose their
preference would be counter productive Respondents further argue that the constitutional provision is reason for being.
and inimical to the common good. addressed to the State, not to respondent GSIS which by
itself possesses a separate and distinct personality. This
Paragraph V. J. 1 of the bidding rules provides that [if] for
argument again is at best specious. It is undisputed that the
In the granting of economic rights, any reason the Highest Bidder cannot be awarded the Block
sale of 51% of the MHC could only be carried out with the
privileges, and concessions, when a of Shares, GSIS may offer this to other Qualified Bidders that
prior approval of the State acting through respondent
choice has to be made between a have validly submitted bids provided that these Qualified
Committee on Privatization. As correctly pointed out by Fr.
"qualified foreigner" end a "qualified Bidders are willing to match the highest bid in terms of price
Joaquin G. Bernas, S.J., this fact alone makes the sale of
Filipino," the latter shall be chosen over per
the assets of respondents GSIS and MHC a "state action." In
the former." share. 47 Certainly, the constitutional mandate itself is reason
constitutional jurisprudence, the acts of persons distinct from
enough not to award the block of shares immediately to the
the government are considered "state action" covered by the
foreign bidder notwithstanding its submission of a higher, or
Constitution (1) when the activity it engages in is a "public
even the highest, bid. In fact, we cannot conceive of a Constitution lays down the basic conditions and parameters they do not violate the Constitution or
stronger reason than the constitutional injunction itself. for its actions. the laws, or are not adopted or
implemented with grave abuse of
discretion amounting to lack or excess
In the instant case, where a foreign firm submits the highest Since petitioner has already matched the bid price tendered
of jurisdiction. It will never shirk that
bid in a public bidding concerning the grant of rights, by Renong Berhad pursuant to the bidding rules, respondent
duty, no matter how buffeted by winds of
privileges and concessions covering the national economy GSIS is left with no alternative but to award to petitioner the
unfair and ill-informed criticism. 48
and patrimony, thereby exceeding the bid of a Filipino, there block of shares of MHC and to execute the necessary
is no question that the Filipino will have to be allowed to agreements and documents to effect the sale in accordance
match the bid of the foreign entity. And if the Filipino not only with the bidding guidelines and procedures but with Privatization of a business asset for purposes of enhancing
matches the bid of a foreign firm the award should go to the the Constitution as well. The refusal of respondent GSIS to its business viability and preventing further losses,
Filipino. It must be so if we are to give life and meaning to execute the corresponding documents with petitioner as regardless of the character of the asset, should not take
the Filipino First Policy provision of the 1987 Constitution. provided in the bidding rules after the latter has matched the precedence over non-material values. A commercial, nay
For, while this may neither be expressly stated nor bid of the Malaysian firm clearly constitutes grave abuse of even a budgetary, objective should not be pursued at the
contemplated in the bidding rules, the constitutional fiat is, discretion. expense of national pride and dignity. For the Constitution
omnipresent to be simply disregarded. To ignore it would be enshrines higher and nobler non-material values. Indeed, the
to sanction a perilous skirting of the basic law. Court will always defer to the Constitution in the proper
The Filipino First Policy is a product of Philippine
governance of a free society; after all, there is nothing so
nationalism. It is embodied in the 1987 Constitution not
sacrosanct in any economic policy as to draw itself beyond
This Court does not discount the apprehension that this merely to be used as a guideline for future legislation but
judicial review when the Constitution is involved. 49
policy may discourage foreign investors. But the Constitution primarily to be enforced; so must it be enforced. This Court
and laws of the Philippines are understood to be always as the ultimate guardian of the Constitution will never shun,
open to public scrutiny. These are given factors which under any reasonable circumstance, the duty of upholding Nationalism is inherent, in the very concept of the Philippines
investors must consider when venturing into business in a the majesty of the Constitution which it is tasked to defend. It being a democratic and republican state, with sovereignty
foreign jurisdiction. Any person therefore desiring to do is worth emphasizing that it is not the intention of this Court residing in the Filipino people and from whom all government
business in the Philippines or with any of its agencies or to impede and diminish, much less undermine, the influx of authority emanates. In nationalism, the happiness and
instrumentalities is presumed to know his rights and foreign investments. Far from it, the Court encourages and welfare of the people must be the goal. The nation-state can
obligations under the Constitution and the laws of the forum. welcomes more business opportunities but avowedly have no higher purpose. Any interpretation of any
sanctions the preference for Filipinos whenever such constitutional provision must adhere to such basic concept.
preference is ordained by the Constitution. The position of Protection of foreign investments, while laudible, is merely a
The argument of respondents that petitioner is now estopped
the Court on this matter could have not been more policy. It cannot override the demands of nationalism. 50
from questioning the sale to Renong Berhad since petitioner
appropriately articulated by Chief Justice Narvasa —
was well aware from the beginning that a foreigner could
participate in the bidding is meritless. Undoubtedly, Filipinos The Manila Hotel or, for that matter, 51% of the MHC, is not
and foreigners alike were invited to the bidding. But As scrupulously as it has tried to just any commodity to be sold to the highest bidder solely for
foreigners may be awarded the sale only if no Filipino observe that it is not its function to the sake of privatization. We are not talking about an
qualifies, or if the qualified Filipino fails to match the highest substitute its judgment for that of the ordinary piece of property in a commercial district. We are
bid tendered by the foreign entity. In the case before us, legislature or the executive about the talking about a historic relic that has hosted many of the
while petitioner was already preferred at the inception of the wisdom and feasibility of legislation most important events in the short history of the Philippines
bidding because of the constitutional mandate, petitioner had economic in nature, the Supreme Court as a nation. We are talking about a hotel where heads of
not yet matched the bid offered by Renong Berhad. Thus it has not been spared criticism for states would prefer to be housed as a strong manifestation
did not have the right or personality then to compel decisions perceived as obstacles to of their desire to cloak the dignity of the highest state
respondent GSIS to accept its earlier bid. Rightly, only after it economic progress and development . . function to their official visits to the Philippines. Thus the
had matched the bid of the foreign firm and the apparent . in connection with a temporary Manila Hotel has played and continues to play a significant
disregard by respondent GSIS of petitioner's matching bid injunction issued by the Court's First role as an authentic repository of twentieth century Philippine
did the latter have a cause of action. Division against the sale of the Manila history and culture. In this sense, it has become truly a
Hotel to a Malaysian Firm and its reflection of the Filipino soul — a place with a history of
partner, certain statements were grandeur; a most historical setting that has played a part in
Besides, there is no time frame for invoking the constitutional
published in a major daily to the effect the shaping of a country. 51
safeguard unless perhaps the award has been finally made.
that injunction "again demonstrates that
To insist on selling the Manila Hotel to foreigners when there
the Philippine legal system can be a
is a Filipino group willing to match the bid of the foreign This Court cannot extract rhyme nor reason from the
major obstacle to doing business here.
group is to insist that government be treated as any other determined efforts of respondents to sell the historical
ordinary market player, and bound by its mistakes or gross landmark — this Grand Old Dame of hotels in Asia — to a
errors of judgment, regardless of the consequences to the Let it be stated for the record once again total stranger. For, indeed, the conveyance of this epic
Filipino people. The miscomprehension of the Constitution is that while it is no business of the Court exponent of the Filipino psyche to alien hands cannot be less
regrettable. Thus we would rather remedy the indiscretion to intervene in contracts of the kind than mephistophelian for it is, in whatever manner viewed, a
while there is still an opportunity to do so than let the referred to or set itself up as the judge of veritable alienation of a nation's soul for some pieces of
government develop the habit of forgetting that the whether they are viable or attainable, it foreign silver. And so we ask: What advantage, which cannot
is its bounden duty to make sure that be equally drawn from a qualified Filipino, can be gained by
the Filipinos Manila Hotel — and all that it stands for — is vs. x--------------------------------------------x
sold to a non-Filipino? How much of national pride will vanish THE GOVERNMENT OF THE REPUBLIC OF THE
if the nation's cultural heritage is entrusted to a foreign PHILIPPINES PEACE NEGOTIATING PANEL (GRP), as
G.R. No. 183962 October 14, 2008
entity? On the other hand, how much dignity will be represented by RODOLFO C. GARCIA, LEAH
preserved and realized if the national patrimony is safekept ARMAMENTO, SEDFREY CANDELARIA, MARK RYAN
in the hands of a qualified, zealous and well-meaning SULLIVAN and HERMOGENES ESPERON, in his ERNESTO M. MACEDA, JEJOMAR C. BINAY, and
Filipino? This is the plain and simple meaning of the Filipino capacity as the Presidential Adviser on Peace AQUILINO L. PIMENTEL III, petitioners,
First Policy provision of the Philippine Constitution. And this Process,respondents. vs.
Court, heeding the clarion call of the Constitution and THE GOVERNMENT OF THE REPUBLIC OF THE
accepting the duty of being the elderly watchman of the PHILIPPINES PEACE NEGOTIATING PANEL,
x--------------------------------------------x
nation, will continue to respect and protect the sanctity of the represented by its Chairman RODOLFO C. GARCIA, and
Constitution. the MORO ISLAMIC LIBERATION FRONT PEACE
G.R. No. 183893 October 14, 2008 NEGOTIATING PANEL, represented by its Chairman
MOHAGHER IQBAL, respondents.
WHEREFORE, respondents GOVERNMENT SERVICE
INSURANCE SYSTEM, MANILA HOTEL CORPORATION, THE CITY OF ILIGAN, duly represented by CITY MAYOR
COMMITTEE ON PRIVATIZATION and OFFICE OF THE LAWRENCE LLUCH CRUZ, petitioner, x--------------------------------------------x
GOVERNMENT CORPORATE COUNSEL are directed to vs.
CEASE and DESIST from selling 51% of the shares of the THE GOVERNMENT OF THE REPUBLIC OF THE
FRANKLIN M. DRILON and ADEL ABBAS
Manila Hotel Corporation to RENONG BERHAD, and to PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN
TAMANO, petitioners-in-intervention.
ACCEPT the matching bid of petitioner MANILA PRINCE (GRP), represented by SEC. RODOLFO GARCIA, ATTY.
HOTEL CORPORATION to purchase the subject 51% of the LEAH ARMAMENTO, ATTY. SEDFREY CANDELARIA,
shares of the Manila Hotel Corporation at P44.00 per share MARK RYAN SULLIVAN; GEN. HERMOGENES x--------------------------------------------x
and thereafter to execute the necessary clearances and to ESPERON, JR., in his capacity as the present and duly
do such other acts and deeds as may be necessary for appointed Presidential Adviser on the Peace Process;
purpose. and/or SEC. EDUARDO ERMITA, in his capacity as SEN. MANUEL A. ROXAS, petitioners-in-intervention.
Executive Secretary. respondents.
SO ORDERED. x--------------------------------------------x
x--------------------------------------------x
G.R. No. 183591 October 14, 2008 MUNICIPALITY OF LINAMON duly represented by its
Municipal Mayor NOEL N. DEANO, petitioners-in-
G.R. No. 183951 October 14, 2008
intervention,
THE PROVINCE OF NORTH COTABATO, duly
represented by GOVERNOR JESUS SACDALAN and/or THE PROVINCIAL GOVERNMENT OF ZAMBOANGA DEL
VICE-GOVERNOR EMMANUEL PIÑOL, for and in his own NORTE, as represented by HON. ROLANDO E. YEBES, x--------------------------------------------x
behalf, petitioners, in his capacity as Provincial Governor, HON. FRANCIS
vs. H. OLVIS, in his capacity as Vice-Governor and THE CITY OF ISABELA, BASILAN PROVINCE,
THE GOVERNMENT OF THE REPUBLIC OF THE Presiding Officer of the Sangguniang Panlalawigan, represented by MAYOR CHERRYLYN P. SANTOS-
PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN HON. CECILIA JALOSJOS CARREON, Congresswoman, AKBAR,petitioners-in-intervention.
(GRP), represented by SEC. RODOLFO GARCIA, ATTY. 1st Congressional District, HON. CESAR G. JALOSJOS,
LEAH ARMAMENTO, ATTY. SEDFREY CANDELARIA, Congressman, 3rd Congressional District, and Members
MARK RYAN SULLIVAN and/or GEN. HERMOGENES of the Sangguniang Panlalawigan of the Province of x--------------------------------------------x
ESPERON, JR., the latter in his capacity as the present Zamboanga del Norte, namely, HON. SETH FREDERICK
and duly-appointed Presidential Adviser on the Peace P. JALOSJOS, HON. FERNANDO R. CABIGON, JR., HON. THE PROVINCE OF SULTAN KUDARAT, rep. by HON.
Process (OPAPP) or the so-called Office of the ULDARICO M. MEJORADA II, HON. EDIONAR M. SUHARTO T. MANGUDADATU, in his capacity as
Presidential Adviser on the Peace Process, respondents. ZAMORAS, HON. EDGAR J. BAGUIO, HON. CEDRIC L. Provincial Governor and a resident of the Province of
ADRIATICO, HON. FELIXBERTO C. BOLANDO, HON. Sultan Kudarat, petitioner-in-intervention.
JOSEPH BRENDO C. AJERO, HON. NORBIDEIRI B.
x--------------------------------------------x
EDDING, HON. ANECITO S. DARUNDAY, HON.
ANGELICA J. CARREON and HON. LUZVIMINDA E. x-------------------------------------------x
G.R. No. 183752 October 14, 2008 TORRINO, petitioners,
vs. RUY ELIAS LOPEZ, for and in his own behalf and on
THE GOVERNMENT OF THE REPUBLIC OF THE behalf of Indigenous Peoples in Mindanao Not
CITY GOVERNMENT OF ZAMBOANGA, as represented
PHILIPPINES PEACE NEGOTIATING PANEL [GRP], as Belonging to the MILF, petitioner-in-intervention.
by HON. CELSO L. LOBREGAT, City Mayor of
represented by HON. RODOLFO C. GARCIA and HON.
Zamboanga, and in his personal capacity as resident of
HERMOGENES ESPERON, in his capacity as the
the City of Zamboanga, Rep. MA. ISABELLE G. x--------------------------------------------x
Presidential Adviser of Peace Process, respondents.
CLIMACO, District 1, and Rep. ERICO BASILIO A.
FABIAN, District 2, City of Zamboanga, petitioners,
CARLO B. GOMEZ, GERARDO S. DILIG, NESARIO G. The MILF is a rebel group which was established in March General Framework for the Resumption of Peace Talks
AWAT, JOSELITO C. ALISUAG and RICHALEX G. 1984 when, under the leadership of the late Salamat Between the GRP and the MILF. The MILF thereafter
JAGMIS, as citizens and residents of Hashim, it splintered from the Moro National Liberation Front suspended all its military actions.5
Palawan, petitioners-in-intervention. (MNLF) then headed by Nur Misuari, on the ground, among
others, of what Salamat perceived to be the manipulation of
Formal peace talks between the parties were held in Tripoli,
the MNLF away from an Islamic basis towards Marxist-
x--------------------------------------------x Libya from June 20-22, 2001, the outcome of which was the
Maoist orientations.1
GRP-MILF Tripoli Agreement on Peace (Tripoli Agreement
2001) containing the basic principles and agenda on the
MARINO RIDAO and KISIN BUXANI, petitioners-in-
The signing of the MOA-AD between the GRP and the MILF following aspects of the
intervention.
was not to materialize, however, for upon motion of negotiation: Security Aspect, Rehabilitation Aspect,
petitioners, specifically those who filed their cases before the and Ancestral Domain Aspect. With regard to the Ancestral
x--------------------------------------------x scheduled signing of the MOA-AD, this Court issued a Domain Aspect, the parties in Tripoli Agreement 2001 simply
Temporary Restraining Order enjoining the GRP from agreed "that the same be discussed further by the Parties in
signing the same. their next meeting."
MUSLIM LEGAL ASSISTANCE FOUNDATION, INC
(MUSLAF), respondent-in-intervention.
The MOA-AD was preceded by a long process of negotiation A second round of peace talks was held in Cyberjaya,
and the concluding of several prior agreements between the Malaysia on August 5-7, 2001 which ended with the signing
x--------------------------------------------x two parties beginning in 1996, when the GRP-MILF peace of the Implementing Guidelines on the Security Aspect of the
negotiations began. On July 18, 1997, the GRP and MILF Tripoli Agreement 2001 leading to a ceasefire status
MUSLIM MULTI-SECTORAL MOVEMENT FOR PEACE & Peace Panels signed the Agreement on General Cessation between the parties. This was followed by the Implementing
DEVELOPMENT (MMMPD), respondent-in-intervention. of Hostilities. The following year, they signed the General Guidelines on the Humanitarian Rehabilitation and
Framework of Agreement of Intent on August 27, 1998. Development Aspects of the Tripoli Agreement 2001, which
was signed on May 7, 2002 at Putrajaya, Malaysia.
x--------------------------------------------x Nonetheless, there were many incidence of violence
The Solicitor General, who represents respondents,
between government forces and the MILF from 2002 to
summarizes the MOA-AD by stating that the same
DECISION 2003.
contained, among others, the commitment of the parties to
pursue peace negotiations, protect and respect human
CARPIO MORALES, J.: rights, negotiate with sincerity in the resolution and pacific Meanwhile, then MILF Chairman Salamat Hashim passed
settlement of the conflict, and refrain from the use of threat away on July 13, 2003 and he was replaced by Al Haj
or force to attain undue advantage while the peace Murad, who was then the chief peace negotiator of the MILF.
Subject of these consolidated cases is the extent of the negotiations on the substantive agenda are on-going.2 Murad's position as chief peace negotiator was taken over by
powers of the President in pursuing the peace Mohagher Iqbal.6
process.While the facts surrounding this controversy center
on the armed conflict in Mindanao between the government Early on, however, it was evident that there was not going to
and the Moro Islamic Liberation Front (MILF), the legal issue be any smooth sailing in the GRP-MILF peace process. In 2005, several exploratory talks were held between the
involved has a bearing on all areas in the country where Towards the end of 1999 up to early 2000, the MILF parties in Kuala Lumpur, eventually leading to the crafting of
there has been a long-standing armed conflict. Yet again, the attacked a number of municipalities in Central Mindanao the draft MOA-AD in its final form, which, as mentioned, was
Court is tasked to perform a delicate balancing act. It must and, in March 2000, it took control of the town hall of set to be signed last August 5, 2008.
uncompromisingly delineate the bounds within which the Kauswagan, Lanao del Norte.3 In response, then President
President may lawfully exercise her discretion, but it must do Joseph Estrada declared and carried out an "all-out-war"
II. STATEMENT OF THE PROCEEDINGS
so in strict adherence to the Constitution, lest its ruling against the MILF.
unduly restricts the freedom of action vested by that same
Constitution in the Chief Executive precisely to enable her to Before the Court is what is perhaps the most contentious
When President Gloria Macapagal-Arroyo assumed office,
pursue the peace process effectively. "consensus" ever embodied in an instrument - the MOA-AD
the military offensive against the MILF was suspended and
which is assailed principally by the present petitions bearing
the government sought a resumption of the peace talks. The
docket numbers 183591, 183752, 183893, 183951 and
I. FACTUAL ANTECEDENTS OF THE PETITIONS MILF, according to a leading MILF member, initially
183962.
responded with deep reservation, but when President Arroyo
asked the Government of Malaysia through Prime Minister
On August 5, 2008, the Government of the Republic of the Mahathir Mohammad to help convince the MILF to return to Commonly impleaded as respondents are the GRP Peace
Philippines (GRP) and the MILF, through the Chairpersons the negotiating table, the MILF convened its Central Panel on Ancestral Domain7 and the Presidential Adviser on
of their respective peace negotiating panels, were scheduled Committee to seriously discuss the matter and, eventually, the Peace Process (PAPP) Hermogenes Esperon, Jr.
to sign a Memorandum of Agreement on the Ancestral decided to meet with the GRP.4
Domain (MOA-AD) Aspect of the GRP-MILF Tripoli
Agreement on Peace of 2001 in Kuala Lumpur, Malaysia. On July 23, 2008, the Province of North Cotabato8 and Vice-
The parties met in Kuala Lumpur on March 24, 2001, with Governor Emmanuel Piñol filed a petition, docketed as G.R.
the talks being facilitated by the Malaysian government, the No. 183591, for Mandamus and Prohibition with Prayer for
parties signing on the same date the Agreement on the the Issuance of Writ of Preliminary Injunction and Temporary
Restraining Order.9 Invoking the right to information on Various parties moved to intervene and were granted leave and initiated the MOA vis-à-vis ISSUES Nos. 4
matters of public concern, petitioners seek to compel of court to file their petitions-/comments-in-intervention. and 5;
respondents to disclose and furnish them the complete and Petitioners-in-Intervention include Senator Manuel A. Roxas,
official copies of the MOA-AD including its attachments, and former Senate President Franklin Drilon and Atty. Adel
4. Whether there is a violation of the people's right
to prohibit the slated signing of the MOA-AD, pending the Tamano, the City of Isabela21 and Mayor Cherrylyn Santos-
to information on matters of public concern (1987
disclosure of the contents of the MOA-AD and the holding of Akbar, the Province of Sultan Kudarat22 and Gov. Suharto
Constitution, Article III, Sec. 7) under a state policy
a public consultation thereon. Supplementarily, petitioners Mangudadatu, the Municipality of Linamon in Lanao del
of full disclosure of all its transactions involving
pray that the MOA-AD be declared unconstitutional.10 Norte,23 Ruy Elias Lopez of Davao City and of the Bagobo
public interest (1987 Constitution, Article II, Sec.
tribe, Sangguniang Panlungsod member Marino Ridao and
28) including public consultation under Republic
businessman Kisin Buxani, both of Cotabato City; and
This initial petition was followed by another one, docketed Act No. 7160 (LOCAL GOVERNMENT CODE OF
lawyers Carlo Gomez, Gerardo Dilig, Nesario Awat, Joselito
as G.R. No. 183752, also for Mandamus and 1991)[;]
Alisuag, Richalex Jagmis, all of Palawan City. The Muslim
Prohibition11 filed by the City of Zamboanga,12 Mayor Celso
Legal Assistance Foundation, Inc. (Muslaf) and the Muslim
Lobregat, Rep. Ma. Isabelle Climaco and Rep. Erico Basilio
Multi-Sectoral Movement for Peace and Development If it is in the affirmative, whether prohibition under
Fabian who likewise pray for similar injunctive reliefs.
(MMMPD) filed their respective Comments-in-Intervention. Rule 65 of the 1997 Rules of Civil Procedure is an
Petitioners herein moreover pray that the City of Zamboanga
appropriate remedy;
be excluded from the Bangsamoro Homeland and/or
Bangsamoro Juridical Entity and, in the alternative, that the By subsequent Resolutions, the Court ordered the
MOA-AD be declared null and void. consolidation of the petitions. Respondents filed Comments 5. Whether by signing the MOA, the Government
on the petitions, while some of petitioners submitted their of the Republic of the Philippines would be
respective Replies. BINDING itself
By Resolution of August 4, 2008, the Court issued a
Temporary Restraining Order commanding and directing
public respondents and their agents to cease and desist from Respondents, by Manifestation and Motion of August 19, a) to create and recognize the
formally signing the MOA-AD.13 The Court also required the 2008, stated that the Executive Department shall thoroughly Bangsamoro Juridical Entity (BJE) as a
Solicitor General to submit to the Court and petitioners the review the MOA-AD and pursue further negotiations to separate state, or a juridical, territorial or
official copy of the final draft of the MOA-AD,14 to which she address the issues hurled against it, and thus moved to political subdivision not recognized by
complied.15 dismiss the cases. In the succeeding exchange of pleadings, law;
respondents' motion was met with vigorous opposition from
petitioners.
Meanwhile, the City of Iligan16 filed a petition for Injunction b) to revise or amend the Constitution
and/or Declaratory Relief, docketed as G.R. No. 183893, and existing laws to conform to the
praying that respondents be enjoined from signing the MOA- The cases were heard on oral argument on August 15, 22 MOA;
AD or, if the same had already been signed, from and 29, 2008 that tackled the following principal issues:
implementing the same, and that the MOA-AD be declared
unconstitutional. Petitioners herein additionally implead c) to concede to or recognize the claim
1. Whether the petitions have become moot and of the Moro Islamic Liberation Front for
Executive Secretary Eduardo Ermita as respondent.
academic ancestral domain in violation of Republic
Act No. 8371 (THE INDIGENOUS
The Province of Zamboanga del Norte,17 Governor Rolando PEOPLES RIGHTS ACT OF 1997),
(i) insofar as the mandamus aspect is
Yebes, Vice-Governor Francis Olvis, Rep. Cecilia Jalosjos- particularly Section 3(g) & Chapter VII
concerned, in view of the disclosure of
Carreon, Rep. Cesar Jalosjos, and the members 18 of the (DELINEATION, RECOGNITION OF
official copies of the final draft of the
Sangguniang Panlalawigan of Zamboanga del Norte filed on ANCESTRAL DOMAINS)[;]
Memorandum of Agreement (MOA); and
August 15, 2008 a petition for Certiorari, Mandamus and
Prohibition,19 docketed as G.R. No. 183951. They pray, inter
alia, that the MOA-AD be declared null and void and without If in the affirmative, whether the Executive Branch
(ii) insofar as the prohibition aspect
has the authority to so bind the Government of the
operative effect, and that respondents be enjoined from involving the Local Government Units is
executing the MOA-AD. Republic of the Philippines;
concerned, if it is considered that
consultation has become fait
accompli with the finalization of the draft; 6. Whether the inclusion/exclusion of the Province
On August 19, 2008, Ernesto Maceda, Jejomar Binay, and
Aquilino Pimentel III filed a petition for Prohibition, 20docketed of North Cotabato, Cities of Zamboanga, Iligan
as G.R. No. 183962, praying for a judgment prohibiting and and Isabela, and the Municipality of Linamon,
2. Whether the constitutionality and the legality of
Lanao del Norte in/from the areas covered by the
permanently enjoining respondents from formally signing and the MOA is ripe for adjudication;
executing the MOA-AD and or any other agreement derived projected Bangsamoro Homeland is a justiciable
therefrom or similar thereto, and nullifying the MOA-AD for question; and
3. Whether respondent Government of the
being unconstitutional and illegal. Petitioners
herein additionally implead as respondent the MILF Peace Republic of the Philippines Peace Panel
7. Whether desistance from signing the MOA
Negotiating Panel represented by its Chairman Mohagher committed grave abuse of discretion amounting to
derogates any prior valid commitments of the
lack or excess of jurisdiction when it negotiated
Iqbal. Government of the Republic of the Philippines.24
The Court, thereafter, ordered the parties to submit their Muslim territories. For instance, areas like dar-ul- The Bangsamoro people are acknowledged as having
respective Memoranda. Most of the parties submitted their mua'hada (land of compact) and dar-ul-sulh (land of treaty) the right to self-governance, which right is said to be rooted
memoranda on time. referred to countries which, though under a secular regime, on ancestral territoriality exercised originally under the
maintained peaceful and cooperative relations with Muslim suzerain authority of their sultanates and the Pat a
States, having been bound to each other by treaty or Pangampong ku Ranaw. The sultanates were described as
III. OVERVIEW OF THE MOA-AD
agreement. Dar-ul-aman (land of order), on the other hand, states or "karajaan/kadatuan" resembling a body politic
referred to countries which, though not bound by treaty with endowed with all the elements of a nation-state in the
As a necessary backdrop to the consideration of the Muslim States, maintained freedom of religion for Muslims.28 modern sense.34
objections raised in the subject five petitions and six
petitions-in-intervention against the MOA-AD, as well as the
It thus appears that the "compact rights entrenchment" The MOA-AD thus grounds the right to self-governance of
two comments-in-intervention in favor of the MOA-AD, the
emanating from the regime of dar-ul-mua'hada and dar-ul- the Bangsamoro people on the past suzerain authority of the
Court takes an overview of the MOA.
sulh simply refers to all other agreements between the MILF sultanates. As gathered, the territory defined as the
and the Philippine government - the Philippines being the Bangsamoro homeland was ruled by several sultanates and,
The MOA-AD identifies the Parties to it as the GRP and the land of compact and peace agreement - that partake of the specifically in the case of the Maranao, by the Pat a
MILF. nature of a treaty device, "treaty" being broadly defined as Pangampong ku Ranaw, a confederation of independent
"any solemn agreement in writing that sets out principalities (pangampong) each ruled by datus and sultans,
understandings, obligations, and benefits for both parties none of whom was supreme over the others.35
Under the heading "Terms of Reference" (TOR), the MOA- which provides for a framework that elaborates the principles
AD includes not only four earlier agreements between the declared in the [MOA-AD]."29
GRP and MILF, but also two agreements between the GRP The MOA-AD goes on to describe the Bangsamoro people
and the MNLF: the 1976 Tripoli Agreement, and the Final as "the ‘First Nation' with defined territory and with a system
Peace Agreement on the Implementation of the 1976 Tripoli The MOA-AD states that the Parties "HAVE AGREED AND of government having entered into treaties of amity and
Agreement, signed on September 2, 1996 during the ACKNOWLEDGED AS FOLLOWS," and starts with its main commerce with foreign nations."
administration of President Fidel Ramos. body.
The term "First Nation" is of Canadian origin referring to the
The MOA-AD also identifies as TOR two local statutes - the The main body of the MOA-AD is divided into four indigenous peoples of that territory, particularly those known
organic act for the Autonomous Region in Muslim Mindanao strands, namely, Concepts and Principles, Territory, as Indians. In Canada, each of these indigenous peoples is
(ARMM)25 and the Indigenous Peoples Rights Act Resources, and Governance. equally entitled to be called "First Nation," hence, all of them
(IPRA),26 and several international law instruments - the ILO are usually described collectively by the plural "First
Convention No. 169 Concerning Indigenous and Tribal Nations."36 To that extent, the MOA-AD, by identifying the
A. CONCEPTS AND PRINCIPLES
Peoples in Independent Countries in relation to the UN Bangsamoro people as "the First Nation" - suggesting its
Declaration on the Rights of the Indigenous Peoples, and the exclusive entitlement to that designation - departs from the
UN Charter, among others. This strand begins with the statement that it is "the birthright Canadian usage of the term.
of all Moros and all Indigenous peoples of Mindanao to
identify themselves and be accepted as ‘Bangsamoros.'" It
The MOA-AD includes as a final TOR the generic category The MOA-AD then mentions for the first time the
defines "Bangsamoro people" as the natives or original
of "compact rights entrenchment emanating from the regime "Bangsamoro Juridical Entity" (BJE) to which it grants the
inhabitants of Mindanao and its adjacent islands including
of dar-ul-mua'hada (or territory under compact) and dar-ul- authority and jurisdiction over the Ancestral Domain and
Palawan and the Sulu archipelago at the time of conquest or
sulh (or territory under peace agreement) that partakes the Ancestral Lands of the Bangsamoro.37
colonization, and their descendants whether mixed or of full
nature of a treaty device."
blood, including their spouses.30
B. TERRITORY
During the height of the Muslim Empire, early Muslim jurists
Thus, the concept of "Bangsamoro," as defined in this strand
tended to see the world through a simple dichotomy: there
of the MOA-AD, includes not only "Moros" as traditionally The territory of the Bangsamoro homeland is described as
was the dar-ul-Islam (the Abode of Islam) and dar-ul-
understood even by Muslims,31 but all indigenous peoples of the land mass as well as the maritime, terrestrial, fluvial and
harb (the Abode of War). The first referred to those lands
Mindanao and its adjacent islands. The MOA-AD adds that alluvial domains, including the aerial domain and the
where Islamic laws held sway, while the second denoted
the freedom of choice of indigenous peoples shall be atmospheric space above it, embracing the Mindanao-Sulu-
those lands where Muslims were persecuted or where
respected. What this freedom of choice consists in has not Palawan geographic region.38
Muslim laws were outlawed or ineffective.27 This way of
been specifically defined.
viewing the world, however, became more complex through
the centuries as the Islamic world became part of the More specifically, the core of the BJE is defined as the
international community of nations. The MOA-AD proceeds to refer to the "Bangsamoro present geographic area of the ARMM - thus constituting the
homeland," the ownership of which is vested exclusively in following areas: Lanao del Sur, Maguindanao, Sulu, Tawi-
the Bangsamoro people by virtue of their prior rights of Tawi, Basilan, and Marawi City. Significantly, this core
As Muslim States entered into treaties with their neighbors,
occupation.32 Both parties to the MOA-AD acknowledge also includes certain municipalities of Lanao del Norte that
even with distant States and inter-governmental
that ancestral domain does not form part of the public voted for inclusion in the ARMM in the 2001 plebiscite.39
organizations, the classical division of the world into dar-ul-
domain.33
Islam and dar-ul-harb eventually lost its meaning. New terms
were drawn up to describe novel ways of perceiving non-
Outside of this core, the BJE is to cover other provinces, environmental protection and equitable sharing of incomes defined powers and functions in the Comprehensive
cities, municipalities and barangays, which are grouped into and revenues involving the bodies of water adjacent to or Compact.
two categories, Category A and Category B. Each of these between the islands forming part of the ancestral domain. 47
areas is to be subjected to a plebiscite to be held on different
The MOA-AD provides that its provisions requiring
dates, years apart from each other. Thus, Category A areas
With regard to the right of exploring for, producing, and "amendments to the existing legal framework" shall take
are to be subjected to a plebiscite not later than twelve (12)
obtaining all potential sources of energy, petroleum, fossil effect upon signing of the Comprehensive Compact and
months following the signing of the MOA-AD.40 Category B
fuel, mineral oil and natural gas, the jurisdiction and control upon effecting the aforesaid amendments, with due regard to
areas, also called "Special Intervention Areas," on the other
thereon is to be vested in the BJE "as the party having the non-derogation of prior agreements and within the
hand, are to be subjected to a plebiscite twenty-five (25)
control within its territorial jurisdiction." This right carries stipulated timeframe to be contained in the Comprehensive
years from the signing of a separate agreement - the
the proviso that, "in times of national emergency, when Compact. As will be discussed later, much of the present
Comprehensive Compact.41
public interest so requires," the Central Government may, for controversy hangs on the legality of this provision.
a fixed period and under reasonable terms as may be
The Parties to the MOA-AD stipulate that the BJE shall have agreed upon by both Parties, assume or direct the operation
The BJE is granted the power to build, develop and maintain
jurisdiction over all natural resources within its of such resources.48
its own institutions inclusive of civil service, electoral,
"internalwaters," defined as extending fifteen (15) kilometers
financial and banking, education, legislation, legal,
from the coastline of the BJE area;42 that the BJE shall also
The sharing between the Central Government and the BJE economic, police and internal security force, judicial system
have "territorial waters," which shall stretch beyond the BJE
of total production pertaining to natural resources is to be and correctional institutions, the details of which shall be
internal waters up to the baselines of the Republic of the
75:25 in favor of the BJE.49 discussed in the negotiation of the comprehensive compact.
Philippines (RP) south east and south west of mainland
Mindanao; and that within these territorial waters, the BJE
and the "Central Government" (used interchangeably with The MOA-AD provides that legitimate grievances of the As stated early on, the MOA-AD was set to be signed on
RP) shall exercise joint jurisdiction, authority and Bangsamoro people arising from any unjust dispossession of August 5, 2008 by Rodolfo Garcia and Mohagher Iqbal,
management over all natural resources.43 Notably, the their territorial and proprietary rights, customary land Chairpersons of the Peace Negotiating Panels of the GRP
jurisdiction over the internal waters is not similarly described tenures, or their marginalization shall be acknowledged. and the MILF, respectively. Notably, the penultimate
as "joint." Whenever restoration is no longer possible, reparation is to paragraph of the MOA-AD identifies the signatories as "the
be in such form as mutually determined by the Parties.50 representatives of the Parties," meaning the GRP and MILF
themselves, and not merely of the negotiating panels.53 In
The MOA-AD further provides for the sharing of minerals on
addition, the signature page of the MOA-AD states that it is
the territorial waters between the Central Government and The BJE may modify or cancel the forest concessions,
"WITNESSED BY" Datuk Othman Bin Abd Razak, Special
the BJE, in favor of the latter, through production sharing and timber licenses, contracts or agreements, mining
Adviser to the Prime Minister of Malaysia, "ENDORSED BY"
economic cooperation agreement.44 The activities which the concessions, Mineral Production and Sharing Agreements
Ambassador Sayed Elmasry, Adviser to Organization of the
Parties are allowed to conduct on the territorial waters are (MPSA), Industrial Forest Management Agreements (IFMA),
Islamic Conference (OIC) Secretary General and Special
enumerated, among which are the exploration and utilization and other land tenure instruments granted by the Philippine
Envoy for Peace Process in Southern Philippines, and
of natural resources, regulation of shipping and fishing Government, including those issued by the present ARMM.51
SIGNED "IN THE PRESENCE OF" Dr. Albert G. Romulo,
activities, and the enforcement of police and safety
Secretary of Foreign Affairs of RP and Dato' Seri Utama Dr.
measures.45 There is no similar provision on the sharing of
D. GOVERNANCE Rais Bin Yatim, Minister of Foreign Affairs, Malaysia, all of
minerals and allowed activities with respect to
whom were scheduled to sign the Agreement last August 5,
the internal waters of the BJE.
2008.
The MOA-AD binds the Parties to invite a multinational third-
C. RESOURCES party to observe and monitor the implementation of
the Comprehensive Compact. This compact is to embody Annexed to the MOA-AD are two documents containing the
the "details for the effective enforcement" and "the respective lists cum maps of the provinces, municipalities,
The MOA-AD states that the BJE is free to enter into any mechanisms and modalities for the actual implementation" of and barangays under Categories A and B earlier mentioned
economic cooperation and trade relations with foreign the MOA-AD. The MOA-AD explicitly provides that the in the discussion on the strand on TERRITORY.
countries and shall have the option to establish trade participation of the third party shall not in any way affect the
missions in those countries. Such relationships and status of the relationship between the Central Government
IV. PROCEDURAL ISSUES
understandings, however, are not to include aggression and the BJE.52
against the GRP. The BJE may also enter into environmental
cooperation agreements.46 A. RIPENESS
The "associative" relationship
between the Central Government
The external defense of the BJE is to remain the duty and and the BJE The power of judicial review is limited to actual cases or
obligation of the Central Government. The Central controversies.54 Courts decline to issue advisory opinions or
Government is also bound to "take necessary steps to to resolve hypothetical or feigned problems, or mere
The MOA-AD describes the relationship of the Central
ensure the BJE's participation in international meetings and academic questions.55 The limitation of the power of judicial
events" like those of the ASEAN and the specialized Government and the BJE as "associative," characterized by
review to actual cases and controversies defines the role
agencies of the UN. The BJE is to be entitled to participate in shared authority and responsibility. And it states that the
assigned to the judiciary in a tripartite allocation of power, to
structure of governance is to be based on executive,
Philippine official missions and delegations for the assure that the courts will not intrude into areas committed to
legislative, judicial, and administrative institutions with
negotiation of border agreements or protocols for the other branches of government.56
An actual case or controversy involves a conflict of legal The Solicitor General cites63 the following provisions of the Concrete acts under the MOA-AD are not necessary to
rights, an assertion of opposite legal claims, susceptible of MOA-AD: render the present controversy ripe. In Pimentel, Jr. v.
judicial resolution as distinguished from a hypothetical or Aguirre,65 this Court held:
abstract difference or dispute. There must be a contrariety of
TERRITORY
legal rights that can be interpreted and enforced on the basis
x x x [B]y the mere enactment of the questioned
of existing law and jurisprudence.57 The Court can decide the
law or the approval of the challenged action, the
constitutionality of an act or treaty only when a proper case xxxx
dispute is said to have ripened into a judicial
between opposing parties is submitted for judicial
controversy even without any other overt act.
determination.58
2. Toward this end, the Parties enter into the Indeed, even a singular violation of the
following stipulations: Constitution and/or the law is enough to awaken
Related to the requirement of an actual case or controversy judicial duty.
is the requirement of ripeness. A question is ripe for
adjudication when the act being challenged has had a direct xxxx
xxxx
adverse effect on the individual challenging it.59 For a case to
be considered ripe for adjudication, it is a prerequisite that d. Without derogating from the requirements of
something had then been accomplished or performed by prior agreements, the Government stipulates to By the same token, when an act of the President,
either branch before a court may come into the picture,60 and conduct and deliver, using all possible legal who in our constitutional scheme is a coequal of
the petitioner must allege the existence of an immediate or measures, within twelve (12) months following the Congress, is seriously alleged to have infringed
threatened injury to itself as a result of the challenged signing of the MOA-AD, a plebiscite covering the the Constitution and the laws x x x settling the
action.61 He must show that he has sustained or is areas as enumerated in the list and depicted in the dispute becomes the duty and the responsibility of
immediately in danger of sustaining some direct injury as a map as Category A attached herein (the "Annex"). the courts.66
result of the act complained of.62 The Annex constitutes an integral part of this
framework agreement. Toward this end, the
In Santa Fe Independent School District v. Doe,67 the United
The Solicitor General argues that there is no justiciable Parties shall endeavor to complete the
States Supreme Court held that the challenge to the
controversy that is ripe for judicial review in the present negotiations and resolve all outstanding issues on
constitutionality of the school's policy allowing student-led
the Comprehensive Compact within fifteen (15)
petitions, reasoning that prayers and speeches before games was ripe for
months from the signing of the MOA-AD.
adjudication, even if no public prayer had yet been led under
the policy, because the policy was being challenged as
The unsigned MOA-AD is simply a list of
xxxx unconstitutional on its face.68
consensus points subject to further negotiations
and legislative enactments as well as
constitutional processes aimed at attaining a final GOVERNANCE That the law or act in question is not yet effective does not
peaceful agreement. Simply put, the MOA-AD negate ripeness. For example, in New York v. United
remains to be a proposal that does not States,69 decided in 1992, the United States Supreme Court
automatically create legally demandable rights and xxxx held that the action by the State of New York challenging the
obligations until the list of operative acts required provisions of the Low-Level Radioactive Waste Policy Act
have been duly complied with. x x x 7. The Parties agree that mechanisms and was ripe for adjudication even if the questioned provision
modalities for the actual implementation of this was not to take effect until January 1, 1996, because the
MOA-AD shall be spelt out in the Comprehensive parties agreed that New York had to take immediate action
xxxx
Compact to mutually take such steps to enable it to avoid the provision's consequences.70
to occur effectively.
In the cases at bar, it is respectfully submitted that
The present petitions pray for Certiorari,71 Prohibition, and
this Honorable Court has no authority to pass
Any provisions of the MOA-AD requiring Mandamus. Certiorari and Prohibition are remedies granted
upon issues based on hypothetical or feigned
amendments to the existing legal framework shall by law when any tribunal, board or officer has acted, in the
constitutional problems or interests with no
come into force upon the signing of a case of certiorari, or is proceeding, in the case of prohibition,
concrete bases. Considering
Comprehensive Compact and upon effecting the without or in excess of its jurisdiction or with grave abuse of
the preliminary character of the MOA-AD, there
necessary changes to the legal framework with discretion amounting to lack or excess of
are no concrete acts that could possibly violate
due regard to non-derogation of prior jurisdiction.72 Mandamus is a remedy granted by law when
petitioners' and intervenors' rights since the acts
agreements and within the stipulated timeframe to any tribunal, corporation, board, officer or person unlawfully
complained of are mere contemplated
be contained in the Comprehensive neglects the performance of an act which the law specifically
steps toward the formulation of a final peace
agreement. Plainly, petitioners and intervenors' Compact.64 (Underscoring supplied) enjoins as a duty resulting from an office, trust, or station, or
unlawfully excludes another from the use or enjoyment of a
perceived injury, if at all, is merely imaginary and
right or office to which such other is entitled. 73 Certiorari,
illusory apart from being unfounded and based on The Solicitor General's arguments fail to persuade. Mandamus and Prohibition are appropriate remedies to raise
mere conjectures. (Underscoring supplied)
constitutional issues and to review and/or prohibit/nullify,
when proper, acts of legislative and executive officials.74
The authority of the GRP Negotiating Panel is defined by privilege to which he is lawfully entitled or that he is about to In the petitions at bar, petitioners Province of North
Executive Order No. 3 (E.O. No. 3), issued on February 28, be subjected to some burdens or penalties by reason of the Cotabato (G.R. No. 183591) Province of Zamboanga del
2001.75 The said executive order requires that "[t]he statute or act complained of.80 When the issue concerns a Norte (G.R. No. 183951), City of Iligan (G.R. No. 183893)
government's policy framework for peace, including the public right, it is sufficient that the petitioner is a citizen and and City of Zamboanga (G.R. No. 183752) and petitioners-
systematic approach and the administrative structure for has an interest in the execution of the laws.81 in-intervention Province of Sultan Kudarat, City of
carrying out the comprehensive peace process x x x be Isabela and Municipality of Linamon have locus standi in
governed by this Executive Order."76 view of the direct and substantial injury that they, as LGUs,
For a taxpayer, one is allowed to sue where there is an
would suffer as their territories, whether in whole or in part,
assertion that public funds are illegally disbursed or deflected
are to be included in the intended domain of the BJE. These
The present petitions allege that respondents GRP Panel to an illegal purpose, or that there is a wastage of public
petitioners allege that they did not vote for their inclusion in
and PAPP Esperon drafted the terms of the MOA-AD without funds through the enforcement of an invalid or
the ARMM which would be expanded to form the BJE
consulting the local government units or communities unconstitutional law.82 The Court retains discretion whether
territory. Petitioners' legal standing is thus beyond doubt.
affected, nor informing them of the proceedings. As will be or not to allow a taxpayer's suit.83
discussed in greater detail later, such omission, by itself,
constitutes a departure by respondents from their mandate In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar
In the case of a legislator or member of Congress, an act of
under E.O. No. 3. Binay and Aquilino Pimentel III would have no standing as
the Executive that injures the institution of Congress causes
citizens and taxpayers for their failure to specify that they
a derivative but nonetheless substantial injury that can be
would be denied some right or privilege or there would be
Furthermore, the petitions allege that the provisions of the questioned by legislators. A member of the House of
wastage of public funds. The fact that they are a former
MOA-AD violate the Constitution. The MOA-AD provides that Representatives has standing to maintain inviolate the
Senator, an incumbent mayor of Makati City, and a resident
"any provisions of the MOA-AD requiring amendments to the prerogatives, powers and privileges vested by the
of Cagayan de Oro, respectively, is of no consequence.
existing legal framework shall come into force upon the Constitution in his office.84
Considering their invocation of the transcendental
signing of a Comprehensive Compact and upon effecting the
importance of the issues at hand, however, the Court grants
necessary changes to the legal framework," implying an
An organization may be granted standing to assert the rights them standing.
amendment of the Constitution to accommodate the MOA-
of its members,85 but the mere invocation by the Integrated
AD. This stipulation, in effect, guaranteed to the MILF the
Bar of the Philippines or any member of the legal
amendment of the Constitution. Such act constitutes another Intervenors Franklin Drilon and Adel Tamano, in alleging
profession of the duty to preserve the rule of law does not
violation of its authority. Again, these points will be discussed their standing as taxpayers, assert that government funds
suffice to clothe it with standing.86
in more detail later. would be expended for the conduct of an illegal and
unconstitutional plebiscite to delineate the BJE territory. On
As regards a local government unit (LGU), it can seek relief that score alone, they can be given legal standing. Their
As the petitions allege acts or omissions on the part of
in order to protect or vindicate an interest of its own, and of allegation that the issues involved in these petitions are of
respondent that exceed their authority, by violating their
the other LGUs.87 "undeniable transcendental importance" clothes them with
duties under E.O. No. 3 and the provisions of the
added basis for their personality to intervene in these
Constitution and statutes, the petitions make a prima
petitions.
facie case for Certiorari, Prohibition, and Mandamus, and an Intervenors, meanwhile, may be given legal standing upon
actual case or controversy ripe for adjudication exists. When showing of facts that satisfy the requirements of the law
an act of a branch of government is seriously alleged to authorizing intervention,88 such as a legal interest in the With regard to Senator Manuel Roxas, his standing is
have infringed the Constitution, it becomes not only the matter in litigation, or in the success of either of the parties. premised on his being a member of the Senate and a citizen
right but in fact the duty of the judiciary to settle the to enforce compliance by respondents of the public's
dispute.77 constitutional right to be informed of the MOA-AD, as well as
In any case, the Court has discretion to relax the procedural on a genuine legal interest in the matter in litigation, or in the
technicality on locus standi, given the liberal attitude it has
success or failure of either of the parties. He thus possesses
B. LOCUS STANDI exercised, highlighted in the case of David v. Macapagal- the requisite standing as an intervenor.
Arroyo,89 where technicalities of procedure were brushed
aside, the constitutional issues raised being of paramount
For a party to have locus standi, one must allege "such a
public interest or of transcendental importance deserving the With respect to Intervenors Ruy Elias Lopez, as a former
personal stake in the outcome of the controversy as to
attention of the Court in view of their seriousness, novelty congressman of the 3rd district of Davao City, a taxpayer and
assure that concrete adverseness which sharpens the
and weight as precedents.90 The Court's forbearing stance a member of the Bagobo tribe; Carlo B. Gomez, et al., as
presentation of issues upon which the court so largely
on locus standi on issues involving constitutional issues has members of the IBP Palawan chapter, citizens and
depends for illumination of difficult constitutional
for its purpose the protection of fundamental rights. taxpayers; Marino Ridao, as taxpayer, resident and member
questions."78
of the Sangguniang Panlungsod of Cotabato City; and Kisin
Buxani, as taxpayer, they failed to allege any proper legal
In not a few cases, the Court, in keeping with its duty under interest in the present petitions. Just the same, the Court
Because constitutional cases are often public actions in
the Constitution to determine whether the other branches of exercises its discretion to relax the procedural technicality
which the relief sought is likely to affect other persons, a
government have kept themselves within the limits of the
preliminary question frequently arises as to this interest in on locus standi given the paramount public interest in the
Constitution and the laws and have not abused the discretion
the constitutional question raised.79 issues at hand.
given them, has brushed aside technical rules of
procedure.91
When suing as a citizen, the person complaining must allege Intervening respondents Muslim Multi-Sectoral Movement
that he has been or is about to be denied some right or for Peace and Development, an advocacy group for justice
and the attainment of peace and prosperity in Muslim Contrary then to the asseverations of respondents, the non- The MOA-AD is part of a series of agreements
Mindanao; and Muslim Legal Assistance Foundation signing of the MOA-AD and the eventual dissolution of the
Inc., a non-government organization of Muslim lawyers, GRP Peace Panel did not moot the present petitions. It
In the present controversy, the MOA-AD is a significant
allege that they stand to be benefited or prejudiced, as the bears emphasis that the signing of the MOA-AD did not push
part of a series of agreements necessary to carry out the
case may be, in the resolution of the petitions concerning the through due to the Court's issuance of a Temporary
Tripoli Agreement 2001. The MOA-AD which dwells on
MOA-AD, and prays for the denial of the petitions on the Restraining Order.
the Ancestral Domain Aspect of said Tripoli Agreement is the
grounds therein stated. Such legal interest suffices to clothe
third such component to be undertaken following the
them with standing.
Contrary too to respondents' position, the MOA-AD cannot implementation of the Security Aspect in August 2001 and
be considered a mere "list of consensus points," especially the Humanitarian, Rehabilitation and Development Aspect in
B. MOOTNESS given its nomenclature, the need to have it signed or May 2002.
initialed by all the parties concerned on August 5, 2008, and
the far-reaching Constitutional implications of these
Respondents insist that the present petitions have been Accordingly, even if the Executive Secretary, in his
"consensus points," foremost of which is the creation of the
rendered moot with the satisfaction of all the reliefs prayed Memorandum of August 28, 2008 to the Solicitor General,
BJE.
for by petitioners and the subsequent pronouncement of the has stated that "no matter what the Supreme Court ultimately
Executive Secretary that "[n]o matter what the Supreme decides[,] the government will not sign the MOA[-
Court ultimately decides[,] the government will not sign the In fact, as what will, in the main, be discussed, there is AD]," mootness will not set in in light of the terms of the
MOA."92 a commitment on the part of respondents to amend and Tripoli Agreement 2001.
effect necessary changes to the existing legal
framework for certain provisions of the MOA-AD to take
In lending credence to this policy decision, the Solicitor Need to formulate principles-guidelines
effect. Consequently, the present petitions are not confined
General points out that the President had already disbanded
to the terms and provisions of the MOA-AD, but to other on-
the GRP Peace Panel.93
going and future negotiations and agreements necessary Surely, the present MOA-AD can be renegotiated or another
for its realization. The petitions have not, therefore, been one will be drawn up to carry out the Ancestral Domain
In David v. Macapagal-Arroyo,94 this Court held that the rendered moot and academic simply by the public disclosure Aspect of the Tripoli Agreement 2001, in another or in any
"moot and academic" principle not being a magical formula of the MOA-AD,102 the manifestation that it will not be signed form, which could contain similar or significantly drastic
that automatically dissuades courts in resolving a case, it will as well as the disbanding of the GRP Panel not withstanding. provisions. While the Court notes the word of the Executive
decide cases, otherwise moot and academic, if it finds that Secretary that the government "is committed to securing an
(a) there is a grave violation of the Constitution;95 (b) the agreement that is both constitutional and equitable because
Petitions are imbued with paramount public interest
situation is of exceptional character and paramount public that is the only way that long-lasting peace can be assured,"
interest is involved;96 (c) the constitutional issue raised it is minded to render a decision on the merits in the present
requires formulation of controlling principles to guide the There is no gainsaying that the petitions are imbued with petitions to formulate controlling principles to guide the
bench, the bar, and the public;97 and (d) the case is capable paramount public interest, involving a significant part of the bench, the bar, the public and, most especially, the
of repetition yet evading review.98 country's territory and the wide-ranging political modifications government in negotiating with the MILF regarding
of affected LGUs. The assertion that the MOA-AD is Ancestral Domain.
subject to further legal enactments including possible
Another exclusionary circumstance that may be considered
Constitutional amendments more than ever provides
is where there is a voluntary cessation of the activity Respondents invite the Court's attention to the separate
impetus for the Court to formulate controlling principles
complained of by the defendant or doer. Thus, once a suit is opinion of then Chief Justice Artemio Panganiban
to guide the bench, the bar, the public and, in this case,
filed and the doer voluntarily ceases the challenged conduct, in Sanlakas v. Reyes104 in which he stated that the doctrine
the government and its negotiating entity.
it does not automatically deprive the tribunal of power to hear of "capable of repetition yet evading review" can override
and determine the case and does not render the case moot mootness, "provided the party raising it in a proper case has
especially when the plaintiff seeks damages or prays for Respondents cite Suplico v. NEDA, et al.103 where the Court been and/or continue to be prejudiced or damaged as a
injunctive relief against the possible recurrence of the did not "pontificat[e] on issues which no longer legitimately direct result of their issuance." They contend that the Court
violation.99 constitute an actual case or controversy [as this] will do more must have jurisdiction over the subject matter for the doctrine
harm than good to the nation as a whole." to be invoked.
The present petitions fall squarely into these exceptions to
thus thrust them into the domain of judicial review. The The present petitions must be differentiated from Suplico. The present petitions all contain prayers for Prohibition over
grounds cited above in David are just as applicable in the Primarily, in Suplico, what was assailed and eventually which this Court exercises original jurisdiction. While G.R.
present cases as they were, not only in David, but also cancelled was a stand-alone government procurement No. 183893 (City of Iligan v. GRP) is a petition for Injunction
in Province of Batangas v. Romulo100 and Manalo v. contract for a national broadband network involving a one- and Declaratory Relief, the Court will treat it as one for
Calderon101 where the Court similarly decided them on the time contractual relation between two parties-the Prohibition as it has far reaching implications and raises
merits, supervening events that would ordinarily have government and a private foreign corporation. As the issues questions that need to be resolved.105 At all events, the Court
rendered the same moot notwithstanding. therein involved specific government procurement policies has jurisdiction over most if not the rest of the petitions.
and standard principles on contracts, the majority opinion
in Suplico found nothing exceptional therein, the factual
Petitions not mooted Indeed, the present petitions afford a proper venue for the
circumstances being peculiar only to the transactions and
Court to again apply the doctrine immediately referred to as
parties involved in the controversy.
what it had done in a number of landmark cases. 106 There is
a reasonable expectation that petitioners, particularly the In the 1976 case of Baldoza v. Hon. Judge Dimaano,110 the x x x [T]he right to information "contemplates
Provinces of North Cotabato, Zamboanga del Norte and Court ruled that access to public records is predicated on the inclusion of negotiations leading to the
Sultan Kudarat, the Cities of Zamboanga, Iligan and Isabela, right of the people to acquire information on matters of public consummation of the transaction." Certainly, a
and the Municipality of Linamon, will again be subjected to concern since, undoubtedly, in a democracy, the pubic has a consummated contract is not a requirement for the
the same problem in the future as respondents' actions are legitimate interest in matters of social and political exercise of the right to information. Otherwise, the
capable of repetition, in another or any form. significance. people can never exercise the right if no contract
is consummated, and if one is consummated, it
may be too late for the public to expose its defects.
It is with respect to the prayers for Mandamus that the x x x The incorporation of this right in the Constitution is a
petitions have become moot, respondents having, by recognition of the fundamental role of free exchange of
Compliance of August 7, 2008, provided this Court and information in a democracy. There can be no realistic Requiring a consummated contract will keep the
petitioners with official copies of the final draft of the MOA- perception by the public of the nation's problems, nor a public in the dark until the contract, which may be
AD and its annexes. Too, intervenors have been furnished, meaningful democratic decision-making if they are denied grossly disadvantageous to the government or
or have procured for themselves, copies of the MOA-AD. access to information of general interest. Information is even illegal, becomes fait accompli. This negates
needed to enable the members of society to cope with the the State policy of full transparency on matters of
exigencies of the times. As has been aptly observed: public concern, a situation which the framers of the
V. SUBSTANTIVE ISSUES
"Maintaining the flow of such information depends on Constitution could not have intended. Such a
protection for both its acquisition and its dissemination since, requirement will prevent the citizenry from
As culled from the Petitions and Petitions-in-Intervention, if either process is interrupted, the flow inevitably ceases." x participating in the public discussion of
there are basically two SUBSTANTIVE issues to be x x111 any proposed contract, effectively truncating a
resolved, one relating to the manner in which the MOA-AD basic right enshrined in the Bill of Rights. We can
was negotiated and finalized, the other relating to its allow neither an emasculation of a constitutional
In the same way that free discussion enables members of
provisions, viz: right, nor a retreat by the State of its avowed
society to cope with the exigencies of their time, access to
"policy of full disclosure of all its transactions
information of general interest aids the people in democratic
involving public interest."122 (Emphasis and italics
1. Did respondents violate constitutional and statutory decision-making by giving them a better perspective of the
in the original)
provisions on public consultation and the right to information vital issues confronting the nation112 so that they may be able
when they negotiated and later initialed the MOA-AD? to criticize and participate in the affairs of the government in
a responsible, reasonable and effective manner. It is by Intended as a "splendid symmetry"123 to the right to
ensuring an unfettered and uninhibited exchange of ideas information under the Bill of Rights is the policy of public
2. Do the contents of the MOA-AD violate the Constitution among a well-informed public that a government remains disclosure under Section 28, Article II of the Constitution
and the laws? responsive to the changes desired by the people.113 reading:

ON THE FIRST SUBSTANTIVE ISSUE The MOA-AD is a matter of public concern Sec. 28. Subject to reasonable conditions
prescribed by law, the State adopts and
Petitioners invoke their constitutional right to information implements a policy of full public disclosure of all
That the subject of the information sought in the present
on matters of public concern, as provided in Section 7, its transactions involving public interest.124
cases is a matter of public concern114 faces no serious
Article III on the Bill of Rights: challenge. In fact, respondents admit that the MOA-AD is
indeed of public concern.115 In previous cases, the Court The policy of full public disclosure enunciated in above-
Sec. 7. The right of the people to information on found that the regularity of real estate transactions entered in quoted Section 28 complements the right of access to
matters of public concern shall be recognized. the Register of Deeds,116 the need for adequate notice to the information on matters of public concern found in the Bill of
Access to official records, and to documents, and public of the various laws,117 the civil service eligibility of a Rights. The right to information guarantees the right of the
papers pertaining to official acts, transactions, or public employee,118 the proper management of GSIS funds people to demand information, while Section 28 recognizes
decisions, as well as to government research data allegedly used to grant loans to public officials,119 the the duty of officialdom to give information even if nobody
used as basis for policy development, shall be recovery of the Marcoses' alleged ill-gotten wealth,120 and demands.125
afforded the citizen, subject to such limitations as the identity of party-list nominees,121 among others, are
may be provided by law.107 matters of public concern. Undoubtedly, the MOA-AD
The policy of public disclosure establishes a concrete ethical
subject of the present cases is of public concern,
principle for the conduct of public affairs in a genuinely open
involving as it does the sovereignty and territorial integrity
As early as 1948, in Subido v. Ozaeta,108 the Court has of the State, which directly affects the lives of the public at
democracy, with the people's right to know as the
recognized the statutory right to examine and inspect public centerpiece. It is a mandate of the State to be accountable
large.
records, a right which was eventually accorded constitutional by following such policy.126 These provisions are vital to the
status. exercise of the freedom of expression and essential to hold
Matters of public concern covered by the right to information public officials at all times accountable to the people.127
include steps and negotiations leading to the consummation
The right of access to public documents, as enshrined in of the contract. In not distinguishing as to the executory
both the 1973 Constitution and the 1987 Constitution, has Whether Section 28 is self-executory, the records of the
nature or commercial character of agreements, the Court
been recognized as a self-executory constitutional right.109 has categorically ruled:
deliberations of the Constitutional Commission so disclose:
MR. SUAREZ. And since this is not self-executory, An essential element of these freedoms is to keep open a Filipinos as one community."134 Included as a component of
this policy will not be enunciated or will not be in continuing dialogue or process of communication between the comprehensive peace process is consensus-building and
force and effect until after Congress shall have the government and the people. It is in the interest of the empowerment for peace, which includes "continuing
provided it. State that the channels for free political discussion be consultations on both national and local levels to build
maintained to the end that the government may perceive and consensus for a peace agenda and process, and the
be responsive to the people's will.131Envisioned to mobilization and facilitation of people's participation in the
MR. OPLE. I expect it to influence the climate of
be corollary to the twin rights to information and disclosure is peace process."135
public ethics immediately but, of course, the
the design for feedback mechanisms.
implementing law will have to be enacted by
Congress, Mr. Presiding Officer.128 Clearly, E.O. No. 3 contemplates not just the conduct of
MS. ROSARIO BRAID. Yes. And lastly, Mr. a plebiscite to effectuate "continuing" consultations,
Presiding Officer, will the people be able to contrary to respondents' position that plebiscite is
The following discourse, after Commissioner Hilario Davide,
participate? Will the government provide "more than sufficient consultation."136
Jr., sought clarification on the issue, is enlightening.
feedback mechanisms so that the people can
participate and can react where the existing
Further, E.O. No. 3 enumerates the functions and
MR. DAVIDE. I would like to get some media facilities are not able to provide full
responsibilities of the PAPP, one of which is to
clarifications on this. Mr. Presiding Officer, did I get feedback mechanisms to the government? I
"[c]onduct regular dialogues with the National Peace Forum
the Gentleman correctly as having said that this is suppose this will be part of the government
(NPF) and other peace partners to seek relevant information,
not a self-executing provision? It would require a implementing operational mechanisms.
comments, recommendations as well as to render
legislation by Congress to implement?
appropriate and timely reports on the progress of the
MR. OPLE. Yes. I think through their elected comprehensive peace process."137 E.O. No. 3 mandates the
MR. OPLE. Yes. Originally, it was going to be self- representatives and that is how these courses take establishment of the NPF to be "the principal forum for the
executing, but I accepted an amendment from place. There is a message and a feedback, both PAPP to consult with and seek advi[c]e from the peace
Commissioner Regalado, so that the safeguards ways. advocates, peace partners and concerned sectors of society
on national interest are modified by the clause "as on both national and local levels, on the implementation of
may be provided by law" the comprehensive peace process, as well as for
xxxx
government[-]civil society dialogue and consensus-building
on peace agenda and initiatives."138
MR. DAVIDE. But as worded, does it not mean
MS. ROSARIO BRAID. Mr. Presiding Officer, may
that this will immediately take effect and
I just make one last sentence?
Congress may provide for reasonable In fine, E.O. No. 3 establishes petitioners' right to be
safeguards on the sole ground national interest? consulted on the peace agenda, as a corollary to the
I think when we talk about the feedback constitutional right to information and disclosure.
network, we are not talking about public
MR. OPLE. Yes. I think so, Mr. Presiding
officials but also network of private business
Officer, I said earlier that it should immediately PAPP Esperon committed grave abuse of discretion
o[r] community-based organizations that will
influence the climate of the conduct of public
be reacting. As a matter of fact, we will put more
affairs but, of course, Congress here may no
credence or credibility on the private network of The PAPP committed grave abuse of discretion when
longer pass a law revoking it, or if this is approved,
volunteers and voluntary community-based he failed to carry out the pertinent consultation. The furtive
revoking this principle, which is inconsistent with
organizations. So I do not think we are afraid that process by which the MOA-AD was designed and
this policy.129 (Emphasis supplied)
there will be another OMA in the crafted runs contrary to and in excess of the legal
making.132(Emphasis supplied) authority, and amounts to a whimsical, capricious,
Indubitably, the effectivity of the policy of public oppressive, arbitrary and despotic exercise thereof.
disclosure need not await the passing of a statute. As
The imperative of a public consultation, as a species of the
Congress cannot revoke this principle, it is merely directed to
right to information, is evident in the "marching orders" to The Court may not, of course, require the PAPP to conduct
provide for "reasonable safeguards." The complete and
respondents. The mechanics for the duty to disclose the consultation in a particular way or manner. It may,
effective exercise of the right to information necessitates that
information and to conduct public consultation regarding the however, require him to comply with the law and discharge
its complementary provision on public disclosure derive the
peace agenda and process is manifestly provided by E.O. the functions within the authority granted by the President.139
same self-executory nature. Since both provisions go hand-
No. 3.133 The preambulatory clause of E.O. No. 3 declares
in-hand, it is absurd to say that the broader130 right to
that there is a need to further enhance the contribution of
information on matters of public concern is already Petitioners are not claiming a seat at the negotiating table,
civil society to the comprehensive peace process by
enforceable while the correlative duty of the State to disclose contrary to respondents' retort in justifying the denial of
institutionalizing the people's participation.
its transactions involving public interest is not enforceable petitioners' right to be consulted. Respondents' stance
until there is an enabling law. Respondents cannot thus point manifests the manner by which they treat the salient
to the absence of an implementing legislation as an excuse One of the three underlying principles of the comprehensive provisions of E.O. No. 3 on people's participation. Such
in not effecting such policy. peace process is that it "should be community-based, disregard of the express mandate of the President is not
reflecting the sentiments, values and principles important to much different from superficial conduct toward token
all Filipinos" and "shall be defined not by the government provisos that border on classic lip service.140 It illustrates a
alone, nor by the different contending groups only, but by all
gross evasion of positive duty and a virtual refusal to perform pervasively and drastically result to the diaspora or In general, the objections against the MOA-AD center on the
the duty enjoined. displacement of a great number of inhabitants from their extent of the powers conceded therein to the BJE.
total environment. Petitioners assert that the powers granted to the BJE exceed
those granted to any local government under present laws,
As for respondents' invocation of the doctrine of executive
and even go beyond those of the present ARMM. Before
privilege, it is not tenable under the premises. The argument With respect to the indigenous cultural
assessing some of the specific powers that would have been
defies sound reason when contrasted with E.O. No. 3's communities/indigenous peoples (ICCs/IPs), whose interests
vested in the BJE, however, it would be useful to turn first to
explicit provisions on continuing consultation and dialogue are represented herein by petitioner Lopez and are
a general idea that serves as a unifying link to the different
on both national and local levels. The executive order even adversely affected by the MOA-AD, the ICCs/IPs have,
provisions of the MOA-AD, namely, the international
recognizes the exercise of the public's right even before under the IPRA, the right to participate fully at all levels of
law concept of association. Significantly, the MOA-AD
the GRP makes its official recommendations or before the decision-making in matters which may affect their rights,
explicitly alludes to this concept, indicating that the Parties
government proffers its definite propositions.141 It bear lives and destinies.147 The MOA-AD, an instrument
actually framed its provisions with it in mind.
emphasis that E.O. No. 3 seeks to elicit relevant advice, recognizing ancestral domain, failed to justify its non-
information, comments and recommendations from the compliance with the clear-cut mechanisms ordained in said
people through dialogue. Act,148 which entails, among other things, the observance of Association is referred to in paragraph 3 on TERRITORY,
the free and prior informed consent of the ICCs/IPs. paragraph 11 on RESOURCES, and paragraph 4 on
GOVERNANCE. It is in the last mentioned provision,
AT ALL EVENTS, respondents effectively waived the
however, that the MOA-AD most clearly uses it to describe
defense of executive privilege in view of their unqualified Notably, the IPRA does not grant the Executive Department
the envisioned relationship between the BJE and the Central
disclosure of the official copies of the final draft of the MOA- or any government agency the power to delineate and
Government.
AD. By unconditionally complying with the Court's August 4, recognize an ancestral domain claim by mere agreement or
2008 Resolution, without a prayer for the document's compromise. The recognition of the ancestral domain is
disclosure in camera, or without a manifestation that it was the raison d'etre of the MOA-AD, without which all other 4. The relationship between the Central
complying therewith ex abundante ad cautelam. stipulations or "consensus points" necessarily must fail. In Government and the Bangsamoro juridical
proceeding to make a sweeping declaration on ancestral entity shall be associative characterized by
domain, without complying with the IPRA, which is cited as shared authority and responsibility with a
Petitioners' assertion that the Local Government Code (LGC)
one of the TOR of the MOA-AD, respondents clearly structure of governance based on executive,
of 1991 declares it a State policy to "require all national
transcended the boundaries of their authority. As it legislative, judicial and administrative institutions
agencies and offices to conduct periodic consultations with
seems, even the heart of the MOA-AD is still subject to with defined powers and functions in the
appropriate local government units, non-governmental and
necessary changes to the legal framework. While paragraph comprehensive compact. A period of transition
people's organizations, and other concerned sectors of the
7 on Governance suspends the effectivity of all provisions shall be established in a comprehensive peace
community before any project or program is implemented in
requiring changes to the legal framework, such clause is compact specifying the relationship between the
their respective jurisdictions"142 is well-taken. The LGC
itself invalid, as will be discussed in the following section. Central Government and the BJE. (Emphasis and
chapter on intergovernmental relations puts flesh into this
underscoring supplied)
avowed policy:
Indeed, ours is an open society, with all the acts of the
government subject to public scrutiny and available always The nature of the "associative" relationship may have been
Prior Consultations Required. - No project or
to public cognizance. This has to be so if the country is to intended to be defined more precisely in the still to be forged
program shall be implemented by government
remain democratic, with sovereignty residing in the people Comprehensive Compact. Nonetheless, given that there is a
authorities unlessthe consultations mentioned in
and all government authority emanating from them.149 concept of "association" in international law, and the MOA-
Sections 2 (c) and 26 hereof are complied with,
AD - by its inclusion of international law instruments in its
and prior approval of the sanggunian concerned is
TOR- placed itself in an international legal context, that
obtained: Provided, That occupants in areas ON THE SECOND SUBSTANTIVE ISSUE
concept of association may be brought to bear in
where such projects are to be implemented shall
understanding the use of the term "associative" in the MOA-
not be evicted unless appropriate relocation sites
With regard to the provisions of the MOA-AD, there can be AD.
have been provided, in accordance with the
no question that they cannot all be accommodated under the
provisions of the Constitution.143 (Italics and
present Constitution and laws. Respondents have admitted
underscoring supplied) Keitner and Reisman state that
as much in the oral arguments before this Court, and the
MOA-AD itself recognizes the need to amend the existing
In Lina, Jr. v. Hon. Paño,144 the Court held that the above- legal framework to render effective at least some of its [a]n association is formed when two states of
stated policy and above-quoted provision of the LGU apply provisions. Respondents, nonetheless, counter that the unequal power voluntarily establish durable links.
only to national programs or projects which are to be MOA-AD is free of any legal infirmity because any provisions In the basic model, one state, the associate,
implemented in a particular local community. Among the therein which are inconsistent with the present legal delegates certain responsibilities to the other,
programs and projects covered are those that are critical to framework will not be effective until the necessary changes the principal, while maintaining its
the environment and human ecology including those that to that framework are made. The validity of this argument will international status as a state. Free
may call for the eviction of a particular group of people be considered later. For now, the Court shall pass upon how associations represent a middle ground
residing in the locality where these will be between integration and independence. x x
implemented.145 The MOA-AD is one peculiar program x150 (Emphasis and underscoring supplied)
The MOA-AD is inconsistent with the Constitution and
that unequivocally and unilaterally vests ownership of a
laws as presently worded.
vast territory to the Bangsamoro people,146 which could
For purposes of illustration, the Republic of the Marshall specialized UN agencies, and the continuing responsibility of The BJE is a far more powerful
Islands and the Federated States of Micronesia (FSM), the Central Government over external defense. Moreover, entity than the autonomous region
formerly part of the U.S.-administered Trust Territory of the the BJE's right to participate in Philippine official missions recognized in the Constitution
Pacific Islands,151 are associated states of the U.S. pursuant bearing on negotiation of border agreements, environmental
to a Compact of Free Association. The currency in these protection, and sharing of revenues pertaining to the bodies
It is not merely an expanded version of the ARMM, the
countries is the U.S. dollar, indicating their very close ties of water adjacent to or between the islands forming part of
status of its relationship with the national government being
with the U.S., yet they issue their own travel documents, the ancestral domain, resembles the right of the
fundamentally different from that of the ARMM. Indeed, BJE
which is a mark of their statehood. Their international legal governments of FSM and the Marshall Islands to be
is a state in all but name as it meets the criteria of a
status as states was confirmed by the UN Security Council consulted by the U.S. government on any foreign affairs
state laid down in the Montevideo Convention,154 namely,
and by their admission to UN membership. matter affecting them.
a permanent population, a defined territory, a government,
and a capacity to enter into relations with other states.
According to their compacts of free association, the Marshall These provisions of the MOA indicate, among other things,
Islands and the FSM generally have the capacity to conduct that the Parties aimed to vest in the BJE the status of
Even assuming arguendo that the MOA-AD would not
foreign affairs in their own name and right, such capacity an associated state or, at any rate, a status closely
necessarily sever any portion of Philippine territory, the
extending to matters such as the law of the sea, marine approximating it.
spirit animating it - which has betrayed itself by its use of
resources, trade, banking, postal, civil aviation, and cultural
the concept of association - runs counter to the national
relations. The U.S. government, when conducting its foreign
The concept of association is not recognized under the sovereignty and territorial integrity of the Republic.
affairs, is obligated to consult with the governments of the
present Constitution
Marshall Islands or the FSM on matters which it (U.S.
government) regards as relating to or affecting either The defining concept underlying the relationship
government. No province, city, or municipality, not even the ARMM, is between the national government and the BJE being
recognized under our laws as having an "associative" itself contrary to the present Constitution, it is not
relationship with the national government. Indeed, the surprising that many of the specific provisions of the
In the event of attacks or threats against the Marshall Islands
concept implies powers that go beyond anything ever MOA-AD on the formation and powers of the BJE are in
or the FSM, the U.S. government has the authority and
granted by the Constitution to any local or regional conflict with the Constitution and the laws.
obligation to defend them as if they were part of U.S.
government. It also implies the recognition of the associated
territory. The U.S. government, moreover, has the option of
entity as a state. The Constitution, however, does not
establishing and using military areas and facilities within Article X, Section 18 of the Constitution provides that "[t]he
contemplate any state in this jurisdiction other than the
these associated states and has the right to bar the military creation of the autonomous region shall be effective when
Philippine State, much less does it provide for a transitory
personnel of any third country from having access to these approved by a majority of the votes cast by the constituent
status that aims to prepare any part of Philippine territory for
territories for military purposes. units in a plebiscite called for the purpose, provided that only
independence.
provinces, cities, and geographic areas voting favorably
in such plebiscite shall be included in the autonomous
It bears noting that in U.S. constitutional and international
Even the mere concept animating many of the MOA-AD's region." (Emphasis supplied)
practice, free association is understood as an international
provisions, therefore, already requires for its validity the
association between sovereigns. The Compact of Free
amendment of constitutional provisions, specifically the
Association is a treaty which is subordinate to the associated As reflected above, the BJE is more of a state than an
following provisions of Article X:
nation's national constitution, and each party may terminate autonomous region. But even assuming that it is covered by
the association consistent with the right of independence. It the term "autonomous region" in the constitutional provision
has been said that, with the admission of the U.S.- SECTION 1. The territorial and political just quoted, the MOA-AD would still be in conflict with it.
associated states to the UN in 1990, the UN recognized that subdivisions of the Republic of the Philippines are Under paragraph 2(c) on TERRITORY in relation to 2(d) and
the American model of free association is actually based on the provinces, cities, municipalities, and 2(e), the present geographic area of the ARMM and, in
an underlying status of independence.152 barangays. There shall be autonomous addition, the municipalities of Lanao del Norte which voted
regions in Muslim Mindanao and the Cordilleras for inclusion in the ARMM during the 2001 plebiscite - Baloi,
as hereinafter provided. Munai, Nunungan, Pantar, Tagoloan and Tangkal - are
In international practice, the "associated state" arrangement
automatically part of the BJE without need of another
has usually been used as a transitional device of former
plebiscite, in contrast to the areas under Categories A and B
colonies on their way to full independence. Examples of SECTION 15. There shall be created autonomous
mentioned earlier in the overview. That the present
states that have passed through the status of associated regions in Muslim Mindanao and in the Cordilleras
components of the ARMM and the above-mentioned
states as a transitional phase are Antigua, St. Kitts-Nevis- consisting of provinces, cities, municipalities, and
municipalities voted for inclusion therein in 2001, however,
Anguilla, Dominica, St. Lucia, St. Vincent and Grenada. All geographical areas sharing common and
does not render another plebiscite unnecessary under the
have since become independent states.153 distinctive historical and cultural heritage,
Constitution, precisely because what these areas voted for
economic and social structures, and other relevant
then was their inclusion in the ARMM, not the BJE.
characteristics within the framework of this
Back to the MOA-AD, it contains many provisions which are
Constitution and the national sovereignty as
consistent with the international legal concept of association,
well as territorial integrity of the Republic of The MOA-AD, moreover, would not
specifically the following: the BJE's capacity to enter into
the Philippines. comply with Article X, Section 20 of
economic and trade relations with foreign countries, the
the Constitution
commitment of the Central Government to ensure the BJE's
participation in meetings and events in the ASEAN and the
since that provision defines the powers of autonomous nations. As the chief architect of foreign policy, "As used in this Organic Act, the phrase
regions as follows: the President acts as the country's mouthpiece "indigenous cultural community" refers to Filipino
with respect to international affairs. Hence, the citizens residing in the autonomous region who
President is vested with the authority to deal are:
SECTION 20. Within its territorial jurisdiction
with foreign states and governments, extend or
and subject to the provisions of this Constitution
withhold recognition, maintain diplomatic
and national laws, the organic act of autonomous (a) Tribal peoples. These are citizens whose
relations, enter into treaties, and otherwise
regions shall provide for legislative powers over: social, cultural and economic conditions
transact the business of foreign relations. In
distinguish them from other sectors of the national
the realm of treaty-making, the President has
community; and
(1) Administrative organization; the sole authority to negotiate with other
states. (Emphasis and underscoring supplied)
(b) Bangsa Moro people. These are citizens who
(2) Creation of sources of revenues;
are believers in Islam and who have retained
Article II, Section 22 of the Constitution must also be
some or all of their own social, economic,
amended if the scheme envisioned in the MOA-AD is to
(3) Ancestral domain and natural resources; cultural, and political institutions."
be effected. That constitutional provision states: "The State
recognizes and promotes the rights of indigenous cultural
(4) Personal, family, and property relations; communities within the framework of national unity and Respecting the IPRA, it lays down the prevailing procedure
development." (Underscoring for the delineation and recognition of ancestral domains. The
supplied) An associative arrangement does not uphold MOA-AD's manner of delineating the ancestral domain of the
(5) Regional urban and rural planning national unity. While there may be a semblance of unity Bangsamoro people is a clear departure from that
development; because of the associative ties between the BJE and the procedure. By paragraph 1 of Territory, the Parties simply
national government, the act of placing a portion of agree that, subject to the delimitations in the agreed
(6) Economic, social, and tourism development; Philippine territory in a status which, in international practice, Schedules, "[t]he Bangsamoro homeland and historic
has generally been a preparation for independence, is territory refer to the land mass as well as the maritime,
certainly not conducive to national unity. terrestrial, fluvial and alluvial domains, and the aerial
(7) Educational policies; domain, the atmospheric space above it, embracing the
Mindanao-Sulu-Palawan geographic region."
Besides being irreconcilable with the Constitution, the MOA-
(8) Preservation and development of the cultural AD is also inconsistent with prevailing statutory law,
heritage; and among which are R.A. No. 9054156 or the Organic Act of the Chapter VIII of the IPRA, on the other hand, lays down a
ARMM, and the IPRA.157 detailed procedure, as illustrated in the following provisions
(9) Such other matters as may be authorized by thereof:
law for the promotion of the general welfare of the Article X, Section 3 of the Organic Act of the ARMM is a
people of the region. (Underscoring supplied) bar to the adoption of the definition of "Bangsamoro SECTION 52. Delineation Process. - The
people" used in the MOA-AD. Paragraph 1 on Concepts and identification and delineation of ancestral domains
Again on the premise that the BJE may be regarded as an Principles states: shall be done in accordance with the following
autonomous region, the MOA-AD would require an procedures:
amendment that would expand the above-quoted provision. 1. It is the birthright of all Moros and all
The mere passage of new legislation pursuant to sub- Indigenous peoples of Mindanao to identify xxxx
paragraph No. 9 of said constitutional provision would not themselves and be accepted as
suffice, since any new law that might vest in the BJE the "Bangsamoros". The Bangsamoro people refers
powers found in the MOA-AD must, itself, comply with other to those who are natives or original inhabitants b) Petition for Delineation. - The process of
provisions of the Constitution. It would not do, for instance, to of Mindanao and its adjacent islands including delineating a specific perimeter may be initiated by
merely pass legislation vesting the BJE with treaty-making the NCIP with the consent of the ICC/IP
Palawan and the Sulu archipelago at the time of
power in order to accommodate paragraph 4 of the strand on conquest or colonization of its descendants concerned, or through a Petition for Delineation
RESOURCES which states: "The BJE is free to enter into whether mixed or of full blood. Spouses and their filed with the NCIP, by a majority of the members
any economic cooperation and trade relations with foreign of the ICCs/IPs;
descendants are classified as Bangsamoro. The
countries: provided, however, that such relationships and freedom of choice of the Indigenous people shall
understandings do not include aggression against the be respected. (Emphasis and underscoring c) Delineation Proper. - The official delineation of
Government of the Republic of the Philippines x x x." Under supplied) ancestral domain boundaries including census of
our constitutional system, it is only the President who has all community members therein, shall be
that power. Pimentel v. Executive Secretary155 instructs:
This use of the term Bangsamoro sharply contrasts with that immediately undertaken by the Ancestral Domains
Office upon filing of the application by the ICCs/IPs
found in the Article X, Section 3 of the Organic Act, which,
In our system of government, the President, being rather than lumping together the identities of the concerned. Delineation will be done in
the head of state, is regarded as the sole Bangsamoro and other indigenous peoples living in coordination with the community concerned and
organ and authority in external relations and is Mindanao, clearly distinguishes between Bangsamoro shall at all times include genuine involvement and
the country's sole representative with foreign people and Tribal peoples, as follows:
participation by the members of the communities technical descriptions, and a description of the Article II, Section 2 of the Constitution states that the
concerned; natural features and landmarks embraced therein; Philippines "adopts the generally accepted principles of
international law as part of the law of the land."
d) Proof Required. - Proof of Ancestral Domain f) Report of Investigation and Other Documents. -
Claims shall include the testimony of elders or A complete copy of the preliminary census and a Applying this provision of the Constitution, the Court,
community under oath, and other documents report of investigation, shall be prepared by the in Mejoff v. Director of Prisons,158 held that the Universal
directly or indirectly attesting to the possession or Ancestral Domains Office of the NCIP; Declaration of Human Rights is part of the law of the land on
occupation of the area since time immemorial by account of which it ordered the release on bail of a detained
such ICCs/IPs in the concept of owners which alien of Russian descent whose deportation order had not
g) Notice and Publication. - A copy of each
shall be any one (1) of the following authentic been executed even after two years. Similarly, the Court
document, including a translation in the native
documents: in Agustin v. Edu159 applied the aforesaid constitutional
language of the ICCs/IPs concerned shall be
provision to the 1968 Vienna Convention on Road Signs and
posted in a prominent place therein for at least
Signals.
1) Written accounts of the ICCs/IPs fifteen (15) days. A copy of the document shall
customs and traditions; also be posted at the local, provincial and regional
offices of the NCIP, and shall be published in a International law has long recognized the right to self-
newspaper of general circulation once a week for determination of "peoples," understood not merely as the
2) Written accounts of the ICCs/IPs
two (2) consecutive weeks to allow other claimants entire population of a State but also a portion thereof. In
political structure and institution;
to file opposition thereto within fifteen (15) days considering the question of whether the people of Quebec
from date of such publication: Provided, That in had a right to unilaterally secede from Canada, the Canadian
3) Pictures showing long term areas where no such newspaper exists, Supreme Court in REFERENCE RE SECESSION OF
occupation such as those of old broadcasting in a radio station will be a valid QUEBEC160 had occasion to acknowledge that "the right of a
improvements, burial grounds, sacred substitute: Provided, further, That mere posting people to self-determination is now so widely recognized in
places and old villages; shall be deemed sufficient if both newspaper and international conventions that the principle has acquired a
radio station are not available; status beyond ‘convention' and is considered a general
principle of international law."
4) Historical accounts, including pacts
and agreements concerning boundaries h) Endorsement to NCIP. - Within fifteen (15) days
entered into by the ICCs/IPs concerned from publication, and of the inspection process, Among the conventions referred to are the International
with other ICCs/IPs; the Ancestral Domains Office shall prepare a Covenant on Civil and Political Rights161 and the
report to the NCIP endorsing a favorable action International Covenant on Economic, Social and Cultural
upon a claim that is deemed to have sufficient Rights162 which state, in Article 1 of both covenants, that all
5) Survey plans and sketch maps; proof. However, if the proof is deemed insufficient, peoples, by virtue of the right of self-determination, "freely
the Ancestral Domains Office shall require the determine their political status and freely pursue their
6) Anthropological data; submission of additional evidence: Provided, That economic, social, and cultural development."
the Ancestral Domains Office shall reject any claim
that is deemed patently false or fraudulent after
7) Genealogical surveys; The people's right to self-determination should not, however,
inspection and verification: Provided, further, That
be understood as extending to a unilateral right of secession.
in case of rejection, the Ancestral Domains Office
A distinction should be made between the right of internal
8) Pictures and descriptive histories of shall give the applicant due notice, copy furnished
and external self-determination. REFERENCE RE
traditional communal forests and hunting all concerned, containing the grounds for denial.
SECESSION OF QUEBEC is again instructive:
grounds; The denial shall be appealable to the NCIP:
Provided, furthermore, That in cases where there
are conflicting claims among ICCs/IPs on the "(ii) Scope of the Right to Self-determination
9) Pictures and descriptive histories of boundaries of ancestral domain claims, the
traditional landmarks such as Ancestral Domains Office shall cause the
mountains, rivers, creeks, ridges, hills, contending parties to meet and assist them in 126. The recognized sources of international law
terraces and the like; and establish that the right to self-determination of a
coming up with a preliminary resolution of the
people is normally fulfilled
conflict, without prejudice to its full adjudication
through internal self-determination - a people's
10) Write-ups of names and places according to the section below.
pursuit of its political, economic, social and
derived from the native dialect of the cultural development within the framework of
community. xxxx an existing state. A right to external self-
determination (which in this case potentially
e) Preparation of Maps. - On the basis of such takes the form of the assertion of a right to
To remove all doubts about the irreconcilability of the MOA-
investigation and the findings of fact based unilateral secession) arises in only the most
AD with the present legal system, a discussion of not only
thereon, the Ancestral Domains Office of the NCIP extreme of cases and, even then, under
the Constitution and domestic statutes, but also of
shall prepare a perimeter map, complete with carefully defined circumstances. x x x
international law is in order, for
External self-determination can be defined as x x x [I]n the absence of express provisions in scholarship as well as international, regional, and state
in the following statement from the Declaration international treaties, the right of disposing of practices, to refer to groups with distinct cultures, histories,
on Friendly Relations, supra, as national territory is essentially an attribute of and connections to land (spiritual and otherwise) that have
the sovereignty of every State. Positive been forcibly incorporated into a larger governing society.
International Law does not recognize the right These groups are regarded as "indigenous" since they are
The establishment of a sovereign and
of national groups, as such, to separate the living descendants of pre-invasion inhabitants of lands
independent State, the free association or
themselves from the State of which they form now dominated by others. Otherwise stated, indigenous
integration with an independent State or the
part by the simple expression of a wish, any peoples, nations, or communities are culturally distinctive
emergence into any other political status freely
more than it recognizes the right of other States to groups that find themselves engulfed by settler societies
determined by a peopleconstitute modes of
claim such a separation. Generally speaking, the born of the forces of empire and conquest.164 Examples of
implementing the right of self-determination by that
grant or refusal of the right to a portion of its groups who have been regarded as indigenous peoples are
people. (Emphasis added)
population of determining its own political fate the Maori of New Zealand and the aboriginal peoples of
by plebiscite or by some other method, is, Canada.
127. The international law principle of self- exclusively, an attribute of the sovereignty of
determination has evolved within a framework every State which is definitively constituted. A
As with the broader category of "peoples," indigenous
of respect for the territorial integrity of existing dispute between two States concerning such a
peoples situated within states do not have a general right to
states. The various international documents that question, under normal conditions therefore, bears
independence or secession from those states under
support the existence of a people's right to self- upon a question which International Law leaves
international law,165 but they do have rights amounting to
determination also contain parallel statements entirely to the domestic jurisdiction of one of the
what was discussed above as the right to internal self-
supportive of the conclusion that the exercise of States concerned. Any other solution would
determination.
such a right must be sufficiently limited to prevent amount to an infringement of sovereign rights of a
threats to an existing state's territorial integrity or State and would involve the risk of creating
the stability of relations between sovereign states. difficulties and a lack of stability which would not In a historic development last September 13, 2007, the UN
only be contrary to the very idea embodied in term General Assembly adopted the United Nations Declaration
"State," but would also endanger the interests of on the Rights of Indigenous Peoples (UN DRIP)
x x x x (Emphasis, italics and underscoring
the international community. If this right is not through General Assembly Resolution 61/295. The vote
supplied) possessed by a large or small section of a nation, was 143 to 4, the Philippines being included among those in
neither can it be held by the State to which the favor, and the four voting against being Australia, Canada,
The Canadian Court went on to discuss the exceptional national group wishes to be attached, nor by any New Zealand, and the U.S. The Declaration clearly
cases in which the right to external self-determination can other State. (Emphasis and underscoring supplied) recognized the right of indigenous peoples to self-
arise, namely, where a people is under colonial rule, is determination, encompassing the right to autonomy or
subject to foreign domination or exploitation outside a self-government, to wit:
The Committee held that the dispute concerning the Aaland
colonial context, and - less definitely but asserted by a Islands did not refer to a question which is left by
number of commentators - is blocked from the meaningful
international law to the domestic jurisdiction of Finland, Article 3
exercise of its right to internal self-determination. The Court thereby applying the exception rather than the rule
ultimately held that the population of Quebec had no right to elucidated above. Its ground for departing from the general
secession, as the same is not under colonial rule or foreign Indigenous peoples have the right to self-
rule, however, was a very narrow one, namely, the Aaland
domination, nor is it being deprived of the freedom to make determination. By virtue of that right they freely
Islands agitation originated at a time when Finland was
political choices and pursue economic, social and cultural undergoing drastic political transformation. The internal determine their political status and freely pursue
development, citing that Quebec is equitably represented in their economic, social and cultural development.
situation of Finland was, according to the Committee, so
legislative, executive and judicial institutions within Canada, abnormal that, for a considerable time, the conditions
even occupying prominent positions therein. required for the formation of a sovereign State did not exist. Article 4
In the midst of revolution, anarchy, and civil war, the
The exceptional nature of the right of secession is further legitimacy of the Finnish national government was disputed
by a large section of the people, and it had, in fact, been Indigenous peoples, in exercising their right to self-
exemplified in the REPORT OF THE INTERNATIONAL
chased from the capital and forcibly prevented from carrying determination, have the right
COMMITTEE OF JURISTS ON THE LEGAL ASPECTS OF
to autonomy or self-government in matters
THE AALAND ISLANDS QUESTION.163 There, Sweden out its duties. The armed camps and the police were divided
into two opposing forces. In light of these circumstances, relating to their internal and local affairs, as
presented to the Council of the League of Nations the
Finland was not, during the relevant time period, a well as ways and means for financing their
question of whether the inhabitants of the Aaland Islands
"definitively constituted" sovereign state. The Committee, autonomous functions.
should be authorized to determine by plebiscite if the
archipelago should remain under Finnish sovereignty or be therefore, found that Finland did not possess the right to
incorporated in the kingdom of Sweden. The Council, before withhold from a portion of its population the option to Article 5
resolving the question, appointed an International Committee separate itself - a right which sovereign nations generally
composed of three jurists to submit an opinion on the have with respect to their own populations.
preliminary issue of whether the dispute should, based on Indigenous peoples have the right to maintain and
international law, be entirely left to the domestic jurisdiction strengthen their distinct political, legal, economic,
Turning now to the more specific category social and cultural institutions, while retaining their
of Finland. The Committee stated the rule as follows: of indigenous peoples, this term has been used, in right to participate fully, if they so choose, in the
political, economic, social and cultural life of the elders, women, youth, children and persons with 3. States shall provide effective mechanisms for
State. disabilities. just and fair redress for any such activities, and
appropriate measures shall be taken to mitigate
adverse environmental, economic, social, cultural
Self-government, as used in international legal discourse Article 26
or spiritual impact.
pertaining to indigenous peoples, has been understood as
equivalent to "internal self-determination."166 The extent of
1. Indigenous peoples have the right to the
self-determination provided for in the UN DRIP is more Article 37
lands, territories and resources which they
particularly defined in its subsequent articles, some of which
have traditionally owned, occupied or
are quoted hereunder:
otherwise used or acquired. 1. Indigenous peoples have the right to the
recognition, observance and enforcement of
Article 8 treaties, agreements and other constructive
2. Indigenous peoples have the right to own, use,
arrangements concluded with States or their
develop and control the lands, territories and
successors and to have States honour and respect
1. Indigenous peoples and individuals have the resources that they possess by reason of
such treaties, agreements and other constructive
right not to be subjected to forced assimilation or traditional ownership or other traditional
arrangements.
destruction of their culture. occupation or use, as well as those which they
have otherwise acquired.
2. Nothing in this Declaration may be interpreted
2. States shall provide effective mechanisms
as diminishing or eliminating the rights of
for prevention of, and redress for: 3. States shall give legal recognition and
indigenous peoples contained in treaties,
protection to these lands, territories and resources.
agreements and other constructive arrangements.
Such recognition shall be conducted with due
(a) Any action which has the aim or effect of
respect to the customs, traditions and land tenure
depriving them of their integrity as distinct
systems of the indigenous peoples concerned. Article 38
peoples, or of their cultural values or ethnic
identities;
Article 30 States in consultation and cooperation with
indigenous peoples, shall take the appropriate
(b) Any action which has the aim or effect of
measures, including legislative measures, to
dispossessing them of their lands, territories 1. Military activities shall not take place in the
achieve the ends of this Declaration.
or resources; lands or territories of indigenous peoples, unless
justified by a relevant public interest or otherwise
freely agreed with or requested by the indigenous Assuming that the UN DRIP, like the Universal Declaration
(c) Any form of forced population transfer
peoples concerned. on Human Rights, must now be regarded as embodying
which has the aim or effect of violating or
customary international law - a question which the Court
undermining any of their rights;
need not definitively resolve here - the obligations
2. States shall undertake effective consultations
enumerated therein do not strictly require the Republic to
with the indigenous peoples concerned, through
(d) Any form of forced assimilation or integration; grant the Bangsamoro people, through the instrumentality of
appropriate procedures and in particular through
the BJE, the particular rights and powers provided for in the
their representative institutions, prior to using their
MOA-AD. Even the more specific provisions of the UN DRIP
(e) Any form of propaganda designed to lands or territories for military activities.
are general in scope, allowing for flexibility in its application
promote or incite racial or ethnic
by the different States.
discrimination directed against them.
Article 32
There is, for instance, no requirement in the UN DRIP that
Article 21
1. Indigenous peoples have the right to determine States now guarantee indigenous peoples their own police
and develop priorities and strategies for the and internal security force. Indeed, Article 8 presupposes
1. Indigenous peoples have the right, without development or use of their lands or territories and that it is the State which will provide protection for indigenous
discrimination, to the improvement of their other resources. peoples against acts like the forced dispossession of their
economic and social conditions, including, inter lands - a function that is normally performed by police
alia, in the areas of education, employment, officers. If the protection of a right so essential to indigenous
2. States shall consult and cooperate in good faith people's identity is acknowledged to be the responsibility of
vocational training and retraining, housing,
with the indigenous peoples concerned through the State, then surely the protection of rights less significant
sanitation, health and social security.
their own representative institutions in order to
to them as such peoples would also be the duty of States.
obtain their free and informed consent prior to the Nor is there in the UN DRIP an acknowledgement of the right
2. States shall take effective measures and, where approval of any project affecting their lands or of indigenous peoples to the aerial domain and atmospheric
appropriate, special measures to ensure territories and other resources, particularly in
space. What it upholds, in Article 26 thereof, is the right of
continuing improvement of their economic and connection with the development, utilization or indigenous peoples to the lands, territories and resources
social conditions. Particular attention shall be paid exploitation of mineral, water or other resources. which they have traditionally owned, occupied or otherwise
to the rights and special needs of indigenous used or acquired.
Moreover, the UN DRIP, while upholding the right of Notwithstanding the suspensive clause, however, require administrative action, new legislation
indigenous peoples to autonomy, does not obligate States to respondents, by their mere act of incorporating in the MOA- or even constitutional amendments.
grant indigenous peoples the near-independent status of an AD the provisions thereof regarding the associative
associated state. All the rights recognized in that document relationship between the BJE and the Central Government,
x x x x (Emphasis supplied)
are qualified in Article 46 as follows: have already violated the Memorandum of Instructions From
The President dated March 1, 2001, which states that the
"negotiations shall be conducted in accordance with x x x the The MOA-AD, therefore, may reasonably be perceived as an
1. Nothing in this Declaration may
principles of the sovereignty and territorial integrityof the attempt of respondents to address, pursuant to this provision
be interpreted as implying for any State, people,
Republic of the Philippines." (Emphasis supplied) of E.O. No. 3, the root causes of the armed conflict in
group or person any right to engage in any activity
Establishing an associative relationship between the BJE Mindanao. The E.O. authorized them to "think outside the
or to perform any act contrary to the Charter of the
and the Central Government is, for the reasons already box," so to speak. Hence, they negotiated and were set on
United Nations or construed as authorizing or
discussed, a preparation for independence, or worse, an signing the MOA-AD that included various social, economic,
encouraging any action which would
implicit acknowledgment of an independent status already and political reforms which cannot, however, all be
dismember or impair, totally or in part, the
prevailing. accommodated within the present legal framework, and
territorial integrity or political unity of
which thus would require new legislation and constitutional
sovereign and independent States.
amendments.
Even apart from the above-mentioned Memorandum,
however, the MOA-AD is defective because the suspensive
Even if the UN DRIP were considered as part of the law of
clause is invalid, as discussed below. The inquiry on the legality of the "suspensive clause,"
the land pursuant to Article II, Section 2 of the Constitution, it
however, cannot stop here, because it must be
would not suffice to uphold the validity of the MOA-AD so as
asked whether the President herself may exercise the
to render its compliance with other laws unnecessary. The authority of the GRP Peace Negotiating Panel to
power delegated to the GRP Peace Panel under E.O. No.
negotiate with the MILF is founded on E.O. No. 3, Section
3, Sec. 4(a).
5(c), which states that there shall be established
It is, therefore, clear that the MOA-AD contains
Government Peace Negotiating Panels for negotiations with
numerous provisions that cannot be reconciled with the
different rebel groups to be "appointed by the President as The President cannot delegate a power that she herself does
Constitution and the laws as presently worded.
her official emissaries to conduct negotiations, dialogues, not possess. May the President, in the course of peace
Respondents proffer, however, that the signing of the MOA-
and face-to-face discussions with rebel groups." These negotiations, agree to pursue reforms that would require new
AD alone would not have entailed any violation of law or
negotiating panels are to report to the President, through the legislation and constitutional amendments, or should the
grave abuse of discretion on their part, precisely because it
PAPP on the conduct and progress of the negotiations. reforms be restricted only to those solutions which the
stipulates that the provisions thereof inconsistent with the
present laws allow? The answer to this question requires a
laws shall not take effect until these laws are amended. They
discussion of the extent of the President's power to
cite paragraph 7 of the MOA-AD strand on GOVERNANCE It bears noting that the GRP Peace Panel, in exploring
conduct peace negotiations.
quoted earlier, but which is reproduced below for lasting solutions to the Moro Problem through its
convenience: negotiations with the MILF, was not restricted by E.O. No. 3
only to those options available under the laws as they That the authority of the President to conduct peace
presently stand. One of the components of a comprehensive negotiations with rebel groups is not explicitly mentioned in
7. The Parties agree that the mechanisms and
peace process, which E.O. No. 3 collectively refers to as the the Constitution does not mean that she has no such
modalities for the actual implementation of this
"Paths to Peace," is the pursuit of social, economic, and authority. In Sanlakas v. Executive Secretary,168 in issue was
MOA-AD shall be spelt out in the Comprehensive
political reforms which may require new legislation or even the authority of the President to declare a state of rebellion -
Compact to mutually take such steps to enable it
constitutional amendments. Sec. 4(a) of E.O. No. 3, which an authority which is not expressly provided for in the
to occur effectively.
reiterates Section 3(a), of E.O. No. 125,167 states: Constitution. The Court held thus:

Any provisions of the MOA-AD requiring


SECTION 4. The Six Paths to Peace. - The "In her ponencia in Marcos v. Manglapus, Justice
amendments to the existing legal framework shall
components of the comprehensive peace process Cortes put her thesis into jurisprudence. There, the
come into force upon signing of a Comprehensive
comprise the processes known as the "Paths to Court, by a slim 8-7 margin, upheld the President's
Compact and upon effecting the necessary
Peace". These component processes are power to forbid the return of her exiled
changes to the legal framework with due regard to
interrelated and not mutually exclusive, and must predecessor. The rationale for the majority's ruling
non derogation of prior agreements and within the
therefore be pursued simultaneously in a rested on the President's
stipulated timeframe to be contained in the
coordinated and integrated fashion. They shall
Comprehensive Compact.
include, but may not be limited to, the following:
. . . unstated residual powers which
are implied from the grant of
Indeed, the foregoing stipulation keeps many controversial
a. PURSUIT OF SOCIAL, ECONOMIC AND executive power and which
provisions of the MOA-AD from coming into force until the
POLITICAL REFORMS. This component involves are necessary for her to comply with
necessary changes to the legal framework are
the vigorous implementation of various her duties under the
effected. While the word "Constitution" is not mentioned
policies, reforms, programs and projects Constitution. The powers of the
in the provision now under consideration or anywhere
aimed at addressing the root causes of internal President are not limited to what are
else in the MOA-AD, the term "legal framework" is
armed conflicts and social unrest. This may expressly enumerated in the article
certainly broad enough to include the Constitution.
on the Executive Department and in
scattered provisions of the setting up the rules by which the new democracy solutions that may require changes to the Constitution for
Constitution. This is so, will operate.170 their implementation. Being uniquely vested with the power
notwithstanding the avowed intent of the to conduct peace negotiations with rebel groups, the
members of the Constitutional President is in a singular position to know the precise nature
In the same vein, Professor Christine Bell, in her article on
Commission of 1986 to limit the powers of their grievances which, if resolved, may bring an end to
the nature and legal status of peace agreements, observed
of the President as a reaction to the hostilities.
that the typical way that peace agreements establish or
abuses under the regime of Mr. Marcos,
confirm mechanisms for demilitarization and demobilization
for the result was a limitation of specific
is by linking them to new constitutional The President may not, of course, unilaterally implement the
powers of the President, particularly
structures addressing governance, elections, and legal and solutions that she considers viable, but she may not be
those relating to the commander-in-chief 171
human rights institutions. prevented from submitting them as recommendations to
clause, but not a diminution of the
Congress, which could then, if it is minded, act upon them
general grant of executive power.
pursuant to the legal procedures for constitutional
In the Philippine experience, the link between peace
amendment and revision. In particular, Congress would have
agreements and constitution-making has been recognized by
Thus, the President's authority to declare a the option, pursuant to Article XVII, Sections 1 and 3 of the
no less than the framers of the Constitution. Behind the
state of rebellion springs in the main from her Constitution, to propose the recommended amendments or
provisions of the Constitution on autonomous regions 172 is
powers as chief executive and, at the same revision to the people, call a constitutional convention, or
the framers' intention to implement a particular peace
time, draws strength from her Commander-in- submit to the electorate the question of calling such a
agreement, namely, the Tripoli Agreement of 1976 between
Chief powers. x x x (Emphasis and underscoring convention.
the GRP and the MNLF, signed by then Undersecretary of
supplied)
National Defense Carmelo Z. Barbero and then MNLF
Chairman Nur Misuari. While the President does not possess constituent powers -
Similarly, the President's power to conduct peace as those powers may be exercised only by Congress, a
negotiations is implicitly included in her powers as Chief Constitutional Convention, or the people through initiative
MR. ROMULO. There are other speakers; so,
Executive and Commander-in-Chief. As Chief Executive, the and referendum - she may submit proposals for
although I have some more questions, I will
President has the general responsibility to promote public constitutional change to Congress in a manner that does not
reserve my right to ask them if they are not
peace, and as Commander-in-Chief, she has the more involve the arrogation of constituent powers.
covered by the other speakers. I have only two
specific duty to prevent and suppress rebellion and lawless
questions.
violence.169
In Sanidad v. COMELEC,174 in issue was the legality of then
President Marcos' act of directly submitting proposals for
I heard one of the Commissioners say that
As the experience of nations which have similarly gone constitutional amendments to a referendum, bypassing the
local autonomy already exists in the Muslim
through internal armed conflict will show, however, peace is interim National Assembly which was the body vested by the
region; it is working very well; it has, in fact,
rarely attained by simply pursuing a military solution. 1973 Constitution with the power to propose such
diminished a great deal of the problems. So, my
Oftentimes, changes as far-reaching as a fundamental amendments. President Marcos, it will be recalled, never
question is: since that already exists, why do we
reconfiguration of the nation's constitutional structure is convened the interim National Assembly. The majority
have to go into something new?
required. The observations of Dr. Kirsti Samuels are upheld the President's act, holding that "the urges of
enlightening, to wit: absolute necessity" compelled the President as the agent of
MR. OPLE. May I answer that on behalf of the people to act as he did, there being no interim National
Chairman Nolledo. Commissioner Yusup Assembly to propose constitutional amendments. Against
x x x [T]he fact remains that a successful political
Abubakar is right that certain definite steps have this ruling, Justices Teehankee and Muñoz Palma vigorously
and governance transition must form the core of
been taken to implement the provisions of the dissented. The Court's concern at present, however, is not
any post-conflict peace-building mission. As we
Tripoli Agreement with respect to an with regard to the point on which it was then divided in that
have observed in Liberia and Haiti over the last ten
autonomous region in Mindanao. This is a controversial case, but on that which was not disputed by
years, conflict cessation without modification of the
good first step, but there is no question that either side.
political environment, even where state-building is
this is merely a partial response to the Tripoli
undertaken through technical electoral assistance
Agreement itself and to the fuller standard of
and institution- or capacity-building, is unlikely to Justice Teehankee's dissent,175 in particular, bears noting.
regional autonomy contemplated in that
succeed. On average, more than 50 percent of While he disagreed that the President may directly submit
agreement, and now by state
states emerging from conflict return to conflict. proposed constitutional amendments to a referendum,
policy.173(Emphasis supplied)
Moreover, a substantial proportion of transitions implicit in his opinion is a recognition that he would have
have resulted in weak or limited democracies. upheld the President's action along with the majority had the
The constitutional provisions on autonomy and the statutes President convened the interim National Assembly and
enacted pursuant to them have, to the credit of their drafters, coursed his proposals through it. Thus Justice Teehankee
The design of a constitution and its constitution-
been partly successful. Nonetheless, the Filipino people are opined:
making process can play an important role in the
still faced with the reality of an on-going conflict between the
political and governance transition. Constitution-
Government and the MILF. If the President is to be expected
making after conflict is an opportunity to create a "Since the Constitution provides for the
to find means for bringing this conflict to an end and to
common vision of the future of a state and a road organization of the essential departments of
achieve lasting peace in Mindanao, then she must be given
map on how to get there. The constitution can be government, defines and delimits the powers of
the leeway to explore, in the course of peace negotiations,
partly a peace agreement and partly a framework each and prescribes the manner of the exercise of
such powers, and the constituent power has not amendments and revision, her mere recommendation need "consensus points" and, notably, the deadline for effecting
been granted to but has been withheld from the not be construed as an unconstitutional act. the contemplated changes to the legal framework.
President or Prime Minister, it follows that the
President's questioned decrees proposing and
The foregoing discussion focused on the President's Plainly, stipulation-paragraph 7 on GOVERNANCE
submitting constitutional amendments directly to
authority to propose constitutional amendments, since her is inconsistent with the limits of the President's authority
the people (without the intervention of the
authority to propose new legislation is not in controversy. It to propose constitutional amendments, it being a virtual
interim National Assembly in whom the power
has been an accepted practice for Presidents in this guarantee that the Constitution and the laws of the Republic
is expressly vested) are devoid of constitutional
jurisdiction to propose new legislation. One of the more of the Philippines will certainly be adjusted to conform to all
and legal basis."176 (Emphasis supplied)
prominent instances the practice is usually done is in the the "consensus points" found in the MOA-AD. Hence, it must
yearly State of the Nation Address of the President to be struck down as unconstitutional.
From the foregoing discussion, the principle may be inferred Congress. Moreover, the annual general appropriations bill
that the President - in the course of conducting peace has always been based on the budget prepared by the
A comparison between the "suspensive clause" of the MOA-
negotiations - may validly consider implementing even those President, which - for all intents and purposes - is a proposal
AD with a similar provision appearing in the 1996 final peace
policies that require changes to the Constitution, but she for new legislation coming from the President.179
agreement between the MNLF and the GRP is most
may not unilaterally implement them without the
instructive.
intervention of Congress, or act in any way as if the
The "suspensive clause" in the MOA-AD viewed in light
assent of that body were assumed as a certainty.
of the above-discussed standards
As a backdrop, the parties to the 1996 Agreement stipulated
that it would be implemented in two phases. Phase Icovered
Since, under the present Constitution, the people also have
Given the limited nature of the President's authority to a three-year transitional period involving the putting up of
the power to directly propose amendments through initiative
propose constitutional amendments, she cannot new administrative structures through Executive Order, such
and referendum, the President may also submit her
guaranteeto any third party that the required amendments as the Special Zone of Peace and Development (SZOPAD)
recommendations to the people, not as a formal proposal to
will eventually be put in place, nor even be submitted to a and the Southern Philippines Council for Peace and
be voted on in a plebiscite similar to what President Marcos
plebiscite. The most she could do is submit these proposals Development (SPCPD), while Phase II covered the
did in Sanidad, but for their independent consideration of
as recommendations either to Congress or the people, in establishment of the new regional autonomous
whether these recommendations merit being formally
whom constituent powers are vested. government through amendment or repeal of R.A. No. 6734,
proposed through initiative.
which was then the Organic Act of the ARMM.
Paragraph 7 on Governance of the MOA-AD states,
These recommendations, however, may amount to nothing
however, that all provisions thereof which cannot be The stipulations on Phase II consisted of specific
more than the President's suggestions to the people, for any
reconciled with the present Constitution and laws "shall agreements on the structure of the expanded autonomous
further involvement in the process of initiative by the Chief
come into force upon signing of a Comprehensive Compact region envisioned by the parties. To that extent, they are
Executive may vitiate its character as a genuine
and upon effecting the necessary changes to the legal similar to the provisions of the MOA-AD. There is, however,
"people's initiative." The only initiative recognized by the
framework." This stipulation does not bear the marks of a a crucial difference between the two agreements. While the
Constitution is that which truly proceeds from the people. As
suspensive condition - defined in civil law as a future MOA-AD virtually guarantees that the "necessary
the Court stated in Lambino v. COMELEC:177
and uncertain event - but of a term. It is not a question changes to the legal framework" will be put in place, the
of whether the necessary changes to the legal framework GRP-MNLF final peace agreement states thus: "Accordingly,
"The Lambino Group claims that their initiative is will be effected, but when. That there is no uncertainty being these provisions [on Phase II] shall be recommended by the
the ‘people's voice.' However, the Lambino Group contemplated is plain from what follows, for the paragraph GRP to Congress for incorporation in the amendatory or
unabashedly states in ULAP Resolution No. 2006- goes on to state that the contemplated changes shall be repealing law."
02, in the verification of their petition with the "with due regard to non derogation of prior
COMELEC, that ‘ULAP maintains its unqualified agreements and within the stipulated timeframe to be
Concerns have been raised that the MOA-AD would have
support to the agenda of Her Excellency President contained in the Comprehensive Compact."
given rise to a binding international law obligation on the part
Gloria Macapagal-Arroyo for constitutional
of the Philippines to change its Constitution in conformity
reforms.' The Lambino Group thus admits that
Pursuant to this stipulation, therefore, it is mandatory for the thereto, on the ground that it may be considered either as a
their ‘people's' initiative is an ‘unqualified support
GRP to effect the changes to the legal framework binding agreement under international law, or a unilateral
to the agenda' of the incumbent President to
contemplated in the MOA-AD - which changes would include declaration of the Philippine government to the international
change the Constitution. This forewarns the Court
constitutional amendments, as discussed earlier. It bears community that it would grant to the Bangsamoro people all
to be wary of incantations of ‘people's voice' or
noting that, the concessions therein stated. Neither ground finds
‘sovereign will' in the present initiative."
sufficient support in international law, however.
By the time these changes are put in place, the MOA-AD
It will be observed that the President has authority, as stated
itself would be counted among the "prior agreements" The MOA-AD, as earlier mentioned in the overview thereof,
in her oath of office,178 only to preserve and defend the
from which there could be no derogation. would have included foreign dignitaries as signatories. In
Constitution. Such presidential power does not, however,
addition, representatives of other nations were invited to
extend to allowing her to change the Constitution, but simply
witness its signing in Kuala Lumpur. These circumstances
to recommend proposed amendments or revision. As long as What remains for discussion in the Comprehensive Compact
readily lead one to surmise that the MOA-AD would have
she limits herself to recommending these changes and would merely be the implementing details for these
had the status of a binding international agreement had it
submits to the proper procedure for constitutional
been signed. An examination of the prevailing principles in xxxx the same status as one which settles an
international law, however, leads to the contrary conclusion. international armed conflict which, essentially,
must be between two or more warring States.
40. Almost every conflict resolution will involve the
The Lomé Agreement cannot be characterised
The Decision on Challenge to Jurisdiction: Lomé Accord parties to the conflict and the mediator or facilitator
as an international instrument. x x x" (Emphasis,
Amnesty180 (the Lomé Accord case) of the Special Court of of the settlement, or persons or bodies under
italics and underscoring supplied)
Sierra Leone is enlightening. The Lomé Accord was a peace whose auspices the settlement took place but who
agreement signed on July 7, 1999 between the Government are not at all parties to the conflict, are not
of Sierra Leone and the Revolutionary United Front (RUF), a contracting parties and who do not claim any Similarly, that the MOA-AD would have been signed by
rebel group with which the Sierra Leone Government had obligation from the contracting parties or incur any representatives of States and international organizations not
been in armed conflict for around eight years at the time of obligation from the settlement. parties to the Agreement would not have sufficed to vest in it
signing. There were non-contracting signatories to the a binding character under international law.
agreement, among which were the Government of the
41. In this case, the parties to the conflict are
Togolese Republic, the Economic Community of West
the lawful authority of the State and the RUF In another vein, concern has been raised that the MOA-AD
African States, and the UN.
which has no status of statehood and is to all would amount to a unilateral declaration of the Philippine
intents and purposes a faction within the state. State, binding under international law, that it would comply
On January 16, 2002, after a successful negotiation between The non-contracting signatories of the Lomé with all the stipulations stated therein, with the result that it
the UN Secretary-General and the Sierra Leone Agreement were moral guarantors of the would have to amend its Constitution accordingly regardless
Government, another agreement was entered into by the UN principle that, in the terms of Article XXXIV of of the true will of the people. Cited as authority for this view
and that Government whereby the Special Court of Sierra the Agreement, "this peace agreement is is Australia v. France,181 also known as the Nuclear Tests
Leone was established. The sole purpose of the Special implemented with integrity and in good faith by Case, decided by the International Court of Justice (ICJ).
Court, an international court, was to try persons who bore both parties". The moral guarantors assumed
the greatest responsibility for serious violations of no legal obligation. It is recalled that the UN by
In the Nuclear Tests Case, Australia challenged before the
international humanitarian law and Sierra Leonean law its representative appended, presumably for
ICJ the legality of France's nuclear tests in the South Pacific.
committed in the territory of Sierra Leone since November avoidance of doubt, an understanding of the extent
France refused to appear in the case, but public statements
30, 1996. of the agreement to be implemented as not
from its President, and similar statements from other French
including certain international crimes.
officials including its Minister of Defence, that its 1974 series
Among the stipulations of the Lomé Accord was a provision of atmospheric tests would be its last, persuaded the ICJ to
for the full pardon of the members of the RUF with respect to 42. An international agreement in the nature of a dismiss the case.182 Those statements, the ICJ held,
anything done by them in pursuit of their objectives as treaty must create rights and obligations regulated amounted to a legal undertaking addressed to the
members of that organization since the conflict began. by international law so that a breach of its terms international community, which required no acceptance from
will be a breach determined under international other States for it to become effective.
law which will also provide principle means of
In the Lomé Accord case, the Defence argued that the
enforcement. The Lomé Agreement created
Accord created an internationally binding obligation not to Essential to the ICJ ruling is its finding that the French
neither rights nor obligations capable of being
prosecute the beneficiaries of the amnesty provided government intended to be bound to the international
regulated by international law. An agreement
therein, citing, among other things, the participation of community in issuing its public statements, viz:
such as the Lomé Agreement which brings to
foreign dignitaries and international organizations in the
an end an internal armed conflict no doubt
finalization of that agreement. The Special Court, however,
creates a factual situation of restoration of 43. It is well recognized that declarations made by
rejected this argument, ruling that the Lome Accord is not a
peace that the international community acting way of unilateral acts, concerning legal or factual
treaty and that it can only create binding obligations and
through the Security Council may take note of. situations, may have the effect of creating legal
rights between the parties in municipal law, not in
That, however, will not convert it to an obligations. Declarations of this kind may be, and
international law. Hence, the Special Court held, it is
international agreement which creates an often are, very specific. When it is the intention
ineffective in depriving an international court like it of
obligation enforceable in international, as of the State making the declaration that it
jurisdiction.
distinguished from municipal, law. A breach of should become bound according to its
the terms of such a peace agreement resulting in terms, that intention confers on the declaration
"37. In regard to the nature of a negotiated resumption of internal armed conflict or creating a the character of a legal undertaking, the State
settlement of an internal armed conflict it is easy threat to peace in the determination of the Security being thenceforth legally required to follow a
to assume and to argue with some degree of Council may indicate a reversal of the factual course of conduct consistent with the
plausibility, as Defence counsel for the situation of peace to be visited with possible legal declaration. An undertaking of this kind, if given
defendants seem to have done, that the mere consequences arising from the new situation of publicly, and with an intent to be bound, even
fact that in addition to the parties to the conflict created. Such consequences such as though not made within the context of international
conflict, the document formalizing the action by the Security Council pursuant to Chapter negotiations, is binding. In these circumstances,
settlement is signed by foreign heads of state VII arise from the situation and not from the nothing in the nature of a quid pro quo nor any
or their representatives and representatives of agreement, nor from the obligation imposed by it. subsequent acceptance of the declaration, nor
international organizations, means the Such action cannot be regarded as a remedy for even any reply or reaction from other States, is
agreement of the parties is internationalized so the breach. A peace agreement which settles required for the declaration to take effect, since
as to create obligations in international law. an internal armed conflict cannot be ascribed such a requirement would be inconsistent with the
strictly unilateral nature of the juridical act by which subject of that case was a statement made by the President to the parties to the conflict, the peace settlement is signed
the pronouncement by the State was made. of Mali, in an interview by a foreign press agency, that Mali by representatives of states and international organizations
would abide by the decision to be issued by a commission of does not mean that the agreement is internationalized so as
the Organization of African Unity on a frontier dispute then to create obligations in international law.
44. Of course, not all unilateral acts imply
pending between Mali and Burkina Faso.
obligation; but a State may choose to take up a
certain position in relation to a particular Since the commitments in the MOA-AD were not addressed
matter with the intention of being bound-the Unlike in the Nuclear Tests Case, the ICJ held that the to States, not to give legal effect to such commitments would
intention is to be ascertained by interpretation statement of Mali's President was not a unilateral act with not be detrimental to the security of international intercourse
of the act. When States make statements by legal implications. It clarified that its ruling in the Nuclear - to the trust and confidence essential in the relations among
which their freedom of action is to be limited, a Tests case rested on the peculiar circumstances surrounding States.
restrictive interpretation is called for. the French declaration subject thereof, to wit:
In one important respect, the circumstances surrounding the
xxxx 40. In order to assess the intentions of the author MOA-AD are closer to that of Burkina Faso wherein, as
of a unilateral act, account must be taken of all the already discussed, the Mali President's statement was not
factual circumstances in which the act occurred. held to be a binding unilateral declaration by the ICJ. As in
51. In announcing that the 1974 series of
For example, in the Nuclear Tests cases, the that case, there was also nothing to hinder the Philippine
atmospheric tests would be the last, the
Court took the view that since the applicant panel, had it really been its intention to be bound to other
French Government conveyed to the world at
States were not the only ones concerned at the States, to manifest that intention by formal agreement. Here,
large, including the Applicant, its intention
possible continuance of atmospheric testing that formal agreement would have come about by the
effectively to terminate these tests. It was
by the French Government, that Government's inclusion in the MOA-AD of a clear commitment to be legally
bound to assume that other States might take
unilateral declarations had ‘conveyed to the bound to the international community, not just the MILF, and
note of these statements and rely on their
world at large, including the Applicant, its by an equally clear indication that the signatures of the
being effective. The validity of these
intention effectively to terminate these participating states-representatives would constitute an
statements and their legal consequences must
tests‘ (I.C.J. Reports 1974, p. 269, para. 51; p. acceptance of that commitment. Entering into such a formal
be considered within the general framework of
474, para. 53). In the particular circumstances agreement would not have resulted in a loss of face for the
the security of international intercourse, and
of those cases, the French Government could Philippine government before the international community,
the confidence and trust which are so essential in
not express an intention to be bound otherwise which was one of the difficulties that prevented the French
the relations among States. It is from the actual
than by unilateral declarations. It is difficult to Government from entering into a formal agreement with
substance of these statements, and from the
see how it could have accepted the terms of a other countries. That the Philippine panel did not enter into
circumstances attending their making, that the
negotiated solution with each of the applicants such a formal agreement suggests that it had no intention to
legal implications of the unilateral act must be
without thereby jeopardizing its contention be bound to the international community. On that ground, the
deduced. The objects of these statements are
that its conduct was lawful. The circumstances MOA-AD may not be considered a unilateral declaration
clear and they were addressed to the
of the present case are radically under international law.
international community as a whole, and the
different. Here, there was nothing to hinder the
Court holds that they constitute an
Parties from manifesting an intention to accept
undertaking possessing legal effect. The Court The MOA-AD not being a document that can bind the
the binding character of the conclusions of the
considers *270 that the President of the Republic, Philippines under international law notwithstanding,
Organization of African Unity Mediation
in deciding upon the effective cessation of respondents' almost consummated act of guaranteeing
Commission by the normal method: a formal
atmospheric tests, gave an undertaking to the amendments to the legal framework is, by itself,
agreement on the basis of reciprocity. Since no
international community to which his words were sufficient to constitute grave abuse of discretion. The
agreement of this kind was concluded between the
addressed. x x x (Emphasis and underscoring grave abuse lies not in the fact that they considered, as a
Parties, the Chamber finds that there are no
supplied) solution to the Moro Problem, the creation of a state within a
grounds to interpret the declaration made by Mali's
state, but in their brazen willingness to guarantee that
head of State on 11 April 1975 as a unilateral act
Congress and the sovereign Filipino people would give
As gathered from the above-quoted ruling of the ICJ, public with legal implications in regard to the present
their imprimatur to their solution. Upholding such an act
statements of a state representative may be construed as case. (Emphasis and underscoring supplied)
would amount to authorizing a usurpation of the constituent
a unilateral declaration only when the following conditions
powers vested only in Congress, a Constitutional
are present: the statements were clearly addressed to the
Assessing the MOA-AD in light of the above criteria, it would Convention, or the people themselves through the process of
international community, the state intended to be bound to
not have amounted to a unilateral declaration on the part of initiative, for the only way that the Executive can ensure the
that community by its statements, and that not to give legal
the Philippine State to the international community. The outcome of the amendment process is through an undue
effect to those statements would be detrimental to the
Philippine panel did not draft the same with the clear influence or interference with that process.
security of international intercourse. Plainly, unilateral
intention of being bound thereby to the international
declarations arise only in peculiar circumstances.
community as a whole or to any State, but only to the MILF.
The sovereign people may, if it so desired, go to the extent
While there were States and international organizations
of giving up a portion of its own territory to the Moros for the
The limited applicability of the Nuclear Tests Case ruling was involved, one way or another, in the negotiation and
sake of peace, for it can change the Constitution in any it
recognized in a later case decided by the ICJ projected signing of the MOA-AD, they participated merely
wants, so long as the change is not inconsistent with what, in
entitled Burkina Faso v. Mali,183 also known as the Case as witnesses or, in the case of Malaysia, as facilitator. As
Concerning the Frontier Dispute. The public declaration held in the Lomé Accord case, the mere fact that in addition
international law, is known as Jus Cogens.184 Respondents, only to reasonable safeguards or limitations as may be unconditionally disclosed the official copies of the final draft
however, may not preempt it in that decision. provided by law. of the MOA-AD, for judicial compliance and public scrutiny.

SUMMARY The contents of the MOA-AD is a matter of paramount public In sum, the Presidential Adviser on the Peace Process
concern involving public interest in the highest order. In committed grave abuse of discretion when he failed to carry
declaring that the right to information contemplates steps out the pertinent consultation process, as mandated by E.O.
The petitions are ripe for adjudication. The failure of
and negotiations leading to the consummation of the No. 3, Republic Act No. 7160, and Republic Act No. 8371.
respondents to consult the local government units or
contract, jurisprudence finds no distinction as to the The furtive process by which the MOA-AD was designed and
communities affected constitutes a departure by respondents
executory nature or commercial character of the agreement. crafted runs contrary to and in excess of the legal authority,
from their mandate under E.O. No. 3. Moreover, respondents
and amounts to a whimsical, capricious, oppressive, arbitrary
exceeded their authority by the mere act of guaranteeing
and despotic exercise thereof. It illustrates a gross evasion
amendments to the Constitution. Any alleged violation of the An essential element of these twin freedoms is to keep a
of positive duty and a virtual refusal to perform the duty
Constitution by any branch of government is a proper matter continuing dialogue or process of communication between
enjoined.
for judicial review. the government and the people. Corollary to these twin rights
is the design for feedback mechanisms. The right to public
consultation was envisioned to be a species of these public The MOA-AD cannot be reconciled with the present
As the petitions involve constitutional issues which are of
rights. Constitution and laws. Not only its specific provisions but the
paramount public interest or of transcendental impor