First Assistant Solicitor General Roberto A. Gianzon And Solicitor Francisco Carreon For Oppositor And Appellant. Gregorio Perfecto In His Own Behalf

G.R. No. L-2348             February 27, 1950 GREGORIO PERFECTO, plaintiff-appellee, vs. BIBIANO MEER, Collector of Internal Revenue, defendant-appellant. First Assistant Solicitor General Roberto A. Gianzon and Solicitor Francisco Carreon for oppositor and appellant. Gregorio Perfecto in his own behalf. BENGZON, J.: In April, 1947 the Collector of Internal Revenue required Mr. Justice Gregorio Perfecto to pay income tax upon his salary as member of this Court during the year 1946. After paying the amount (P802), he instituted this action in the Manila Court of First Instance contending that the assessment was illegal, his salary not being taxable for the reason that imposition of taxes thereon would reduce it in violation of the Constitution. The Manila judge upheld his contention, and required the refund of the amount collected. The defendant appealed. The death of Mr. Justice Perfecto has freed us from the embarrassment of passing upon the claim of a colleague. Still, as the outcome indirectly affects all the members of the Court, consideration of the matter is not without its vexing feature. Yet adjudication may not be declined, because (a) we are not legally disqualified; (b) jurisdiction may not be renounced, ad it is the defendant who appeals to this Court, and there is no other tribunal to which the controversy may be referred; (c) supreme courts in the United States have decided similar disputes relating to themselves; (d) the question touches all the members of the judiciary from top to bottom; and (e) the issue involves the right of other constitutional officers whose compensation is equally protected by the Constitution, for instance, the President, the AuditorGeneral and the members of the Commission on Elections. Anyway the subject has been thoroughly discussed in many American lawsuits and opinions, and we shall hardly do nothing more than to borrow therefrom and to compare their conclusions to local conditions. There shall be little occasion to formulate new propositions, for the situation is not unprecedented. Our Constitution provides in its Article VIII, section 9, that the members of the Supreme Court and all judges of inferior courts "shall receive such compensation as may be fixed by law, which shall not be diminished during their continuance in office." It also provides that "until Congress shall provide otherwise, the Chief Justice of the Supreme Court shall receive an annual compensation of sixteen thousand pesos". When in 1945 Mr. Justice

Perfecto assumed office, Congress had not "provided otherwise", by fixing a different salary for associate justices. He received salary at the rate provided by the Constitution, i.e., fifteen thousand pesos a year. Now, does the imposition of an income tax upon this salary in 1946 amount to a diminution thereof?. A note found at page 534 of volume 11 of the American Law Reports answers the question in the affirmative. It says: Where the Constitution of a state provides that the salaries of its judicial officers shall not be dismissed during their continuance in office, it had been held that the state legislature cannot impose a tax upon the compensation paid to the judges of its court. New Orleans v. Lea (1859) 14 La. Ann. 194; Opinion of Attorney-General if N. C. (1856) 48 N. C. (3 Jones, L.) Appx. 1; Re Taxation of Salaries of Judges (1902) 131 N. C. 692, 42 S. E. 970; Com. ex. rel. Hepburn v. Mann (1843) 5 Watts & S,. (Pa.) 403 [but see to the contrary the earlier and much criticized case of Northumberland county v. Chapman (1829) 2 Rawle (Pa.) 73]* A different rule prevails in Wisconsin, according to the same annotation. Another state holding the contrary view is Missouri. The Constitution of the United States, likes ours, forbids the diminution of the compensation of Judges of the Supreme Court and of inferior courts. The Federal Governments has an income tax law. Does it embrace the salaries of federal judges? In answering this question, we should consider four periods: First period. No attempts was made to tax the compensation of Federal judges up to 1862 1. Second period. 1862-1918. In July, 1862, a statute was passed subjecting the salaries of "civil officers of the United States" to an income tax of three per cent. Revenue officers, construed it as including the compensation of all judges; but Chief Justice Taney, speaking for the judiciary, wrote to the Secretary of the Treasury a letter of protest saying, among other things: The act in question, as you interpret it, diminishes the compensation of every judge 3 per cent, and if it can be diminished to that extent by the name of a tax, it may, in the same way, be reduced from time to time, at the pleasure of the legislature. The judiciary is one of the three great departments of the government, created and established by the Constitution. Its duties

and powers are specifically set forth, and are of a character that requires it to be perfectly independent of the two other departments, and in order to place it beyond the reach and above even the suspicion of any such influence, the power to reduce their compensation is expressly withheld from Congress, and excepted from their powers of legislation. Language could not be more plain than that used in the Constitution. It is, moreover, one of its most important and essential provisions. For the articles which limits the powers of the legislative and executive branches of the government, and those which provide safeguards for the protection of the citizen in his person and property, would be of little value without a judiciary to uphold and maintain them, which was free from every influence, direct and indirect, that might by possibility in times of political excitement warp their judgments. Upon these grounds I regard an act of Congress retaining in the Treasury a portion of the Compensation of the judges, as unconstitutional and void2. The protest was unheeded, although it apparently bore the approval of the whole Supreme Court, that ordered it printed among its records. But in 1869 Attorney-General Hoar upon the request of the Secretary of the Treasury rendered an opinion agreeing with the Chief Justice. The collection of the tax was consequently discontinued and the amounts theretofore received were all refunded. For half a century thereafter judges' salaries were not taxed as income.3 Third period. 1919-1938. The Federal Income Tax Act of February 24, 1919 expressly provided that taxable income shall include "the compensation of the judges of the Supreme Court and inferior courts of the United States". Under such Act, Walter Evans, United States judge since 1899, paid income tax on his salary; and maintaining that the impost reduced his compensation, he sued to recover the money he had delivered under protest. He was upheld in 1920 by the Supreme Court in an epoch-making decision.*, explaining the purpose, history and meaning of the Constitutional provision forbidding impairment of judicial salaries and the effect of an income tax upon the salary of a judge. With what purpose does the Constitution provide that the compensation of the judges "shall not be diminished during their continuance in office"? Is it primarily to benefit the judges, or rather to promote the public weal by giving them that independence which makes for an impartial and courageous discharge of the judicial

function? Does the provision merely forbid direct diminution, such as expressly reducing the compensation from a greater to a less sum per year, and thereby leave the way open for indirect, yet effective, diminution, such as withholding or calling back a part as tax on the whole? Or does it mean that the judge shall have a sure and continuing right to the compensation, whereon he confidently may rely for his support during his continuance in office, so that he need have no apprehension lest his situation in this regard may be changed to his disadvantage? The Constitution was framed on the fundamental theory that a larger measure of liberty and justice would be assured by vesting the three powers — the legislative, the executive, and the judicial — in separate departments, each relatively independent of the others and it was recognized that without this independence — if it was not made both real and enduring — the separation would fail of its purpose. all agreed that restraints and checks must be imposed to secure the requisite measure of independence; for otherwise the legislative department, inherently the strongest, might encroach on or even come to dominate the others, and the judicial, naturally the weakest, might be dwarf or swayed by the other two, especially by the legislative. The particular need for making the judiciary independent was elaborately pointed our by Alexander Hamilton in the Federalist, No. 78, from which we excerpt the following: xxx     xxx     xxx At a later period John Marshall, whose rich experience as lawyer, legislator, and chief justice enable him to speak as no one else could, tersely said (debates Va. Gonv. 1829-1831, pp. 616, 619): . . . Our courts are the balance wheel of our whole constitutional system; and our is the only constitutional system so balanced and controlled. Other constitutional systems lacks complete poise and certainly of operation because they lack the support and interpretation of authoritative, undisputable courts of law. It is clear beyond all need of exposition that for the definite maintenance of constitutional understandings it is indispensable, alike for the preservation of the liberty of the individual and for the preservation of the integrity of the powers of the government, that there should be some nonpolitical forum in which those understandings can be impartially debated and determined. That forum our courts supply. There the individual may assert his rights; there the government must accept definition of its authority. There the individual may challenge the legality of governmental action and have it adjudged by the test of fundamental

principles, and that test the government must abide; there the government can check the too aggressive self-assertion of the individual and establish its power upon lines which all can comprehend and heed. The constitutional powers of the courts constitute the ultimate safeguard alike of individual privilege and of governmental prerogative. It is in this sense that our judiciary is the balance wheel of our entire system; it is meant to maintain that nice adjustment between individual rights and governmental powers which constitutes political liberty. Constitutional government in the United States, pp. 17, 142. Conscious in the nature and scope of the power being vested in the national courts, recognizing that they would be charge with responsibilities more delicate and important than any ever before confide to judicial tribunals, and appreciating that they were to be, in the words of George Washington, "the keystone of our political fabric", the convention with unusual accord incorporated in the Constitution the provision that the judges "shall hold their offices during good behavior, and shall at stated times receive for their services a compensation which shall not be diminished during their continuance in office." Can there be any doubt that the two things thus coupled in place — the clause in respect of tenure during good behaviour and that in respect of an undiminishable compensationwere equally coupled in purpose? And is it not plain that their purposes was to invest the judges with an independence in keeping with the delicacy and importance of their task, and with the imperative need for its impartial and fearless performance? Mr. Hamilton said in explanation and support of the provision (Federalist No. 79): "Next to permanency in office, nothing can contribute more to the independence of the judges than a fixed provision for their support. . . . In the general course of human nature, a power over a man's subsistence amounts to a power over his will. xxx     xxx     xxx These considerations make it very plain, as we think, that the primary purpose of the prohibition against diminution was not to benefit the judges, but, like the clause in respect of tenure, to attract good and competent men to the bench, and to promote that independence of action and judgment which is essential to the maintenance of the guaranties, limitations, and pervading principles of the constitution, and to the admiration of justice without respect to persons, and with equal concern for the poor and the rich. xxx     xxx     xxx

But it is urged that what plaintiff was made to pay back was an income tax, and that a like tax was exacted of others engaged in private employment. If the tax in respect of his compensation be prohibited, it can find no justification in the taxation of other income as to which there is no prohibition, for, of course, doing what the Constitution permits gives no license to do what it prohibits. The prohibition is general, contains no excepting words, and appears to be directed against all diminution, whether for one purpose or another; and the reason for its adoption, as publicly assigned at the time and commonly accepted ever since, make with impelling force for the conclusion that the fathers of the Constitution intended to prohibit diminution by taxation as well as otherwise, that they regarded the independence of the judges as of far greater importance than any revenue that could come from taxing their salaries. (American law Reports, annotated, Vol. 11, pp. 522-25; Evans vs. Gore, supra.) In September 1, 1919, Samuel J. Graham assumed office as judge of the Unites States court of claims. His salary was taxed by virtue of the same time income tax of February 24, 1919. At the time he qualified, a statute fixed his salary at P7,500. He filed action for reimbursement, submitting the same theory on which Evans v. Gore had been decided. The Supreme Court of the United States in 1925 reaffirmed that decision. It overruled the distinction offered by Solicitor-General Beck that Judge Graham took office after the income tax had been levied on judicial salaries, (Evans qualified before), and that Congress had power "to impose taxes which should apply to the salaries of Federal judges appointed after the enactment of the taxing statute." (The law had made no distinction as to judges appointed before or after its passage) Fourth period. 1939 — Foiled in their previous attempts, the Revenue men persisted, and succeeded in inserting in the United States Revenue Act of June, 1932 the modified proviso that "gross income" on which taxes were payable included the compensation "of judges of courts of the United States taking office after June 6, 1932". Joseph W. Woodrough qualified as United States circuit judge on May 1, 1933. His salary as judge was taxed, and before the Supreme Court of the United States the issue of decrease of remuneration again came up. That court, however, ruled against him, declaring (in 1939) that Congress had the power to adopt the law. It said: The question immediately before us is whether Congress exceeded its constitutional power in providing that United States judges

appointed after the Revenue Act of 1932 shall not enjoy immunity from the incidence of taxation to which everyone else within the defined classes of income is subjected. Thereby, of course, Congress has committed itself to the position that a nondiscriminatory tax laid generally on net income is not, when applied to the income of federal judge, a diminution of his salary within the prohibition of Article 3, Sec. 1 of the Constitution. To suggest that it makes inroads upon the independence of judges who took office after the Congress has thus charged them with the common duties of citizenship, by making them bear their aliquot share of the cost of maintaining the Government, is to trivialize the great historic experience on which the framers based the safeguards of Article 3, Sec. 1. To subject them to a general tax is merely to recognize that judges also are citizens, and that their particular function in government does not generate an immunity from sharing with their fellow citizens the material burden of the government whose Constitution and laws they are charged with administering. (O'Malley vs. Woodrough, 59 S. Ct. 838, A. L. R. 1379.) Now, the case for the defendant-appellant Collector of Internal Revenue is premised mainly on this decision (Note A). He claims it holds "that federal judges are subject to the payment of income taxes without violating the constitutional prohibition against the reduction of their salaries during their continuance in office", and that it "is a complete repudiation of the ratio decidenci of Evans vs. Gore". To grasp the full import of the O'Malley precedent, we should bear in mind that: 1. It does not entirely overturn Miles vs. Graham. "To the extent that what the Court now says is inconsistent with what said in Miles vs. Graham, the latter can not survive", Justice Frankfurter announced. 2. It does not expressly touch nor amend the doctrine in Evans vs, Gore, although it indicates that the Congressional Act in dispute avoided in part the consequences of that case. Carefully analyzing the three cases (Evans, Miles and O'Malley) and piecing them together, the logical conclusion may be reached that although Congress may validly declare by law that salaries of judges appointed thereafter shall be taxed as income (O'Malley vs. Woodrough) it may not tax the salaries of those judges already in office at the time of such declaration because such taxation would diminish their salaries (Evans vs. Gore; Miles vs. Graham). In this manner the rationalizing principle that will harmonize the allegedly discordant decision may be condensed.

By the way, Justice Frankfurter, writing the O'Malley decision, says the Evans precedent met with disfavor from legal scholarship opinion. Examining the issues of Harvard Law review at the time of Evans vs. Gore (Frankfurter is a Harvard graduate and professor), we found that such school publication criticized it. Believing this to be the "inarticulate consideration that may have influenced the grounds on which the case went off"4, we looked into the criticism, and discovered that it was predicated on the position that the 16th Amendment empowered Congress "to collect taxes on incomes from whatever source derived" admitting of no exception. Said the Harvard Law Journal: In the recent case of Evans vs. Gore the Supreme Court of the United States decided that by taxing the salary of a federal judge as a part of his income, Congress was in effect reducing his salary and thus violating Art. III, sec. 1, of the Constitution. Admitting for the present purpose that such a tax really is a reduction of salary, even so it would seem that the words of the amendment giving power to tax 'incomes, from whatever source derived', are sufficiently strong to overrule pro tanto the provisions of Art. III, sec. 1. But, two years ago, the court had already suggested that the amendment in no way extended the subjects open to federal taxation. The decision in Evans vs. Gore affirms that view, and virtually strikes from the amendment the words "from whatever source derived". (Harvard law Review, vol. 34, p. 70) The Unites States Court's shift of position5 might be attributed to the above detraction which, without appearing on the surface, led to Frankfurter's sweeping expression about judges being also citizens liable to income tax. But it must be remembered that undisclosed factor — the 16th Amendment — has no counterpart in the Philippine legal system. Our Constitution does not repeat it. Wherefore, as the underlying influence and the unuttered reason has no validity in this jurisdiction, the broad generality loses much of its force. Anyhow the O'Malley case declares no more than that Congress may validly enact a law taxing the salaries of judges appointed after its passage. Here in the Philippines no such law has been approved. Besides, it is markworthy that, as Judge Woodrough had qualified after the express legislative declaration taxing salaries, he could not very well complain. The United States Supreme Court probably had in mind what in other cases was maintained, namely, that the tax levied on the salary in effect decreased the emoluments of the office and therefore the judge qualified with such reduced emoluments.6

The O'Malley ruling does not cover the situation in which judges already in office are made to pay tax by executive interpretation, without express legislative declaration. That state of affairs is controlled by the administrative and judicial standards herein-before described in the "second period" of the Federal Government, namely, the views of Chief Justice Taney and of Attorney-General Hoar and the constant practice from 1869 to 1938, i.e., when the Income Tax Law merely taxes "income" in general, it does not include salaries of judges protected from diminution. In this connection the respondent would make capital of the circumstance that the Act of 1932, upheld in the O'Malley case, has subsequently been amended by making it applicable even to judges who took office before 1932. This shows, the appellant argues, that Congress interprets the O'Malley ruling to permit legislative taxation of the salary of judges whether appointed before the tax or after. The answer to this is that the Federal Supreme Court expressly withheld opinion on that amendment in the O'Malley case. Which is significant. Anyway, and again, there is here no congressional directive taxing judges' salaries. Wherefore, unless and until our Legislature approves an amendment to the Income Tax Law expressly taxing "that salaries of judges thereafter appointed", the O'Malley case is not relevant. As in the United States during the second period, we must hold that salaries of judges are not included in the word "income" taxed by the Income Tax Law. Two paramount circumstances may additionally be indicated, to wit: First, when the Income Tax Law was first applied to the Philippines 1913, taxable "income" did not include salaries of judicial officers when these are protected from diminution. That was the prevailing official belief in the United States, which must be deemed to have been transplanted here;7 and second, when the Philippine Constitutional Convention approved (in 1935) the prohibition against diminution off the judges' compensation, the Federal principle was known that income tax on judicial salaries really impairs them. Evans vs. Gore and Miles vs. Graham were then outstanding doctrines; and the inference is not illogical that in restraining the impairment of judicial compensation the Fathers of the Constitution intended to preclude taxation of the same.8 It seems that prior to the O'Malley decision the Philippine Government did not collect income tax on salaries of judges. This may be gleaned from General Circular No. 449 of the Department of Finance dated March 4, 1940, which says in part: xxx     xxx     xxx

The question of whether or not the salaries of judges should be taken into account in computing additional residence taxes is closely linked with the liability of judges to income tax on their salaries, in fact, whatever resolution is adopted with respect to either of said taxes be followed with respect to the other. The opinion of the Supreme Court of the United States in the case of O'Malley v. Woodrough, 59 S. Ct. 838, to which the attention of this department has been drawn, appears to have enunciated a new doctrine regarding the liability of judges to income tax upon their salaries. In view of the fact that the question is of great significance, the matter was taken up in the Council of State, and the Honorable, the Secretary of Justice was requested to give an opinion on whether or not, having in mind the said decision of the Supreme Court of the United States in the case of O'Malley v. Woodrough, there is justification in reversing our present ruling to the effect that judges are not liable to tax on their salaries. After going over the opinion of the court in the said case, the Honorable, the Secretary of Justice, stated that although the ruling of the Supreme Court of the United States is not binding in the Philippines, the doctrine therein enunciated has resolved the issue of the taxability of judges' salaries into a question of policy. Forthwith, His Excellency the President decided that the best policy to adopt would be to collect income and additional residence taxes from the President of the Philippines, the members of the Judiciary, and the Auditor General, and the undersigned was authorized to act accordingly. In view of the foregoing, income and additional residence taxes should be levied on the salaries received by the President of the Philippines, members of the Judiciary, and the Auditor General during the calendar year 1939 and thereafter. . . . . (Emphasis ours.) Of course, the Secretary of Justice correctly opined that the O'Malley decision "resolved the issue of taxability of judges' salaries into a question of policy." But that policy must be enunciated by Congressional enactment, as was done in the O'Malley case, not by Executive Fiat or interpretation. This is not proclaiming a general tax immunity for men on the bench. These pay taxes. Upon buying gasoline, or other commodities, they pay the corresponding duties. Owning real property, they pay taxes thereon. And on incomes other than their judicial salary, assessments are levied. It is only when the tax is charged directly on their salary and the effect of the tax is to diminish their official stipend — that the taxation must be resisted as an infringement of the fundamental charter. Judges would indeed be hapless guardians of the Constitution if they did not perceive and block encroachments upon their prerogatives in whatever form.

The undiminishable character of judicial salaries is not a mere privilege of judges — personal and therefore waivable — but a basic limitation upon legislative or executive action imposed in the public interest. (Evans vs. Gore) Indeed the exemption of the judicial salary from reduction by taxation is not really a gratuity or privilege. Let the highest court of Maryland speak: The exemption of the judicial compensation from reduction is not in any true sense a gratuity, privilege or exemption. It is essentially and primarily compensation based upon valuable consideration. The covenant on the part of the government is a guaranty whose fulfillment is as much as part of the consideration agreed as is the money salary. The undertaking has its own particular value to the citizens in securing the independence of the judiciary in crises; and in the establishment of the compensation upon a permanent foundation whereby judicial preferment may be prudently accepted by those who are qualified by talent, knowledge, integrity and capacity, but are not possessed of such a private fortune as to make an assured salary an object of personal concern. On the other hand, the members of the judiciary relinquish their position at the bar, with all its professional emoluments, sever their connection with their clients, and dedicate themselves exclusively to the discharge of the onerous duties of their high office. So, it is irrefutable that they guaranty against a reduction of salary by the imposition of a tax is not an exemption from taxation in the sense of freedom from a burden or service to which others are liable. The exemption for a public purpose or a valid consideration is merely a nominal exemption, since the valid and full consideration or the public purpose promoted is received in the place of the tax. Theory and Practice of Taxation (1900), D. A. Wells, p. 541. (Gordy vs. Dennis (Md.) 1939, 5 Atl. Rep. 2d Series, p. 80) It is hard to see, appellants asserts, how the imposition of the income tax may imperil the independence of the judicial department. The danger may be demonstrated. Suppose there is power to tax the salary of judges, and the judiciary incurs the displeasure of the Legislature and the Executive. In retaliation the income tax law is amended so as to levy a 30 per cent on all salaries of government officials on the level of judges. This naturally reduces the salary of the judges by 30 per cent, but they may not grumble because the tax is general on all receiving the same amount of earning, and affects the Executive and the Legislative branches in equal measure. However, means are provided thereafter in other laws, for the increase of salaries of the Executive and the Legislative branches, or their perquisites such as allowances, per diems, quarters, etc. that actually compensate for the 30 per cent reduction on their salaries. Result: Judges compensation is thereby

diminished during their incumbency thanks to the income tax law. Consequence: Judges must "toe the line" or else. Second consequence: Some few judges might falter; the great majority will not. But knowing the frailty of human nature, and this chink in the judicial armor, will the parties losing their cases against the Executive or the Congress believe that the judicature has not yielded to their pressure? Respondent asserts in argumentation that by executive order the President has subjected his salary to the income tax law. In our opinion this shows obviously that, without such voluntary act of the President, his salary would not be taxable, because of constitutional protection against diminution. To argue from this executive gesture that the judiciary could, and should act in like manner is to assume that, in the matter of compensation and power and need of security, the judiciary is on a par with the Executive. Such assumption certainly ignores the prevailing state of affairs. The judgment will be affirmed. So ordered. Moran, C.J., Pablo, Padilla, Tuason, Montemayor, Reyes and Torres, JJ., concur.

Separate Opinions OZAETA., J., dissenting: It is indeed embarrassing that this case was initiated by a member of this Court upon which devolves the duty to decide it finally. The question of whether the salaries of the judges, the members of the Commission on Elections, the Auditor General, and the President of the Philippines are immune from taxation, might have been raised by any interested party other than a justice of the Supreme Court with less embarrassment to the latter. The question is simple and not difficult of solution. We shall state our opinion as concisely as possible. The first income tax law of the Philippines was Act No. 2833, which was approved on March 7, 1919, to take effect on January 1, 1920. Section 1 (a) of said Act provided: There shall be levied, assessed, collected, and paid annually upon the entire net income received in the preceding calendar year from all sources by every individual, a citizen or resident of the Philippine

Islands, a tax of two per centum upon such income. . . . (Emphasis ours.) Section 2 (a) of said Act provided: Subject only to such exemptions and deductions as are hereinafter allowed, the taxable net income of a person shall include gains, profits, and income derived from salaries, wages or compensation for personal service of whatever kind and is whatever form paid, or from professions, vocations, businesses, trade, commerce, sales, or dealings in property, whether real or personal, growing out of the ownership or use of or interest in real or personal property, also from interest, rent, dividends, securities, or the transaction of any business carried on for gain or profit, or gains, profits, and income derived from any source whatever. That income tax law has been amended several times, specially as to the rates of the tax, but the above-quoted provisions (except as to the rate) have been preserved intact in the subsequent Acts. The present income tax law is Title II of the National Internal Revenue Code, Commonwealth Act No. 466, sections 21, 28 and 29 of which incorporate the texts of the above-quoted provisions of the original Act in exactly the same language. There can be no dispute whatsoever that judges (who are individuals) and their salaries (which are income) are as clearly comprehended within the above-quoted provisions of the law as if they were specifically mentioned therein; and in fact all judges had been and were paying income tax on their salaries when the Constitution of the Philippines was discussed and approved by the Constitutional Convention and when it was submitted to the people for confirmation in the plebiscite of May 14, 1935. Now, the Constitution provides that the members of the Supreme Court and all judges of inferior courts "shall receive such compensation as may be fixed by law, which shall not be diminished during their continuance in office." (Section 9, Article VIII, emphasis ours.)a The simple question is: In approving the provisions against the diminution of the compensation of judges and other specified officers during their continuance in office, did the framers of the Constitution intend to nullify the then existing income tax law insofar as it imposed a tax on the salaries of said officers ? If they did not, then the income tax law, which has been incorporated in the present National Internal Revenue Code, remains in force in its entirety and said officers cannot claim exemption therefrom on their salaries.

Section 2 of Article XVI of the Constitution provides that all laws of the Philippine Islands shall remain operative, unless inconsistent with this Constitution, until amended, altered, modified. or repealed by the Congress of the Philippines. In resolving the question at bar, we must take into consideration the following well-settled rules: "A constitution shall be held to be prepared and adopted in reference to existing statutory laws, upon the provisions of which in detail it must depend to be set in practical operation" (People vs. Potter, 47 N. Y. 375; People vs. Draper, 15 N. Y. 537; Cass vs. Dillon, 2 Ohio St. 607; People vs. N. Y., 25 Wend. (N. Y. 22). (Barry vs. Traux, 3 A. & E. Ann. Cas 191, 193.). Courts are bound to presume that the people adopting a constitution are familiar with the previous and existing laws upon the subjects to which its provisions relate, and upon which they express their judgment and opinion in its adoption (Baltimore vs. State, 15 Md. 376, 480; 74 Am. Dec. 572; State vs. Mace, 5 Md. 337; Bandel vs. Isaac, 13 Md. 202; Manly vs. State, 7 Md. 135; Hamilton vs. St. Louis County Ct., 15 Mo. 5; People vs. Gies, 25 Mich. 83; Servis vs. Beatty, 32 Miss. 52; Pope vs. Phifer, 3 Heisk. (Tenn.) 686; People vs. Harding, 53 Mich. 48, 51 Am. Rep. 95; Creve Coeur Lake Ice Co. vs. Tamm, 138 Mo. 385, 39 S. W. Rep. 791). (Idem.) A constitutional provision must be presumed to have been framed and adopted in the light and understanding of prior and existing laws and with reference to them. Constitutions, like statutes, are properly to be expounded in the light of conditions existing at the time of their adoption, the general spirit of the times, and the prevailing sentiments among the people. Reference may be made to the historical facts relating to the original or political institutions of the community or to prior well-known practices and usages. (11 Am. Ju., Constitutional Law, 676-678.) The salaries provided in the Constitution for the Chief Justice and each associate Justice, respectively, of the Supreme Court were the same salaries ]which they were receiving at the time the Constitution was framed and adopted and on which they were paying income tax under the existing income tax law. It seems clear to us that for them to receive the same salaries, subject to the same tax, after the adoption of the Constitution as before does not involve any diminution at all. The fact that the plaintiff was not a member of the Court when the Constitution took effect, makes no difference. The salaries of justices and judges were subject to income tax

when he was appointed in the early part of 1945. In fact he must have declared and paid income tax on his salary for 19454 — he claimed exemption only beginning 1946. It seems likewise clear that when the framers of the Constitution fixed those salaries, they must have taken into consideration that the recipients were paying income tax thereon. There was no necessity to provide expressly that said salaries shall be subject to income tax because they knew that already so provided. On the other hand, if exemption from any tax on said salaries had been intended, it would have been specifically to so provide, instead of merely saying that the compensation as fixed "shall not be diminished during their continuance in office." In the light of the antecedents, the prohibition against diminution cannot be interpreted to include or refer to general taxation but to a law by which said salaries may be fixed. The sentence in question reads: "They shall receive such compensation as may be fixed by law, which shall not be diminished during their continuance in office." The next sentence reads: "Until the Congress shall provide otherwise, the Chief Justice of the Supreme Court shall receive an annual compensation of P16,000, and each associate Justice, P15,000." It is plain that the Constitution authorizes the Congress to pass a law fixing another rate of compensation, but that such rate must be higher than that which the justices receive at he time of its enactment or, if lower, it must not affect those justice already in office. In other words, Congress may approve a law increasing the salaries of the justices at any time, but it cannot approve a law decreasing their salaries unless such law is made effective only as to justices appointed after its approval. It would be a strained and unreasonable construction of the prohibition against diminution to read into it an exemption from taxation. There is no justification for the belief or assumption that the framers of the Constitution intended to exempt the salaries of said officers from taxes. They knew that it was and is the unavoidable duty of every citizen to bear his aliquot share of the cost of maintaining the Government; that taxes are the very blood that sustains the life of the Government. To make all citizens share the burden of taxation equitably, the Constitution expressly provides that "the rule of taxation shall be uniform." (Section 22 [1], Article VI.) We think it would be a contravention of this provision to read into the prohibition against diminution of the salaries of the judges and other specified officers an exemption from taxes on their salaries. How could the rule of income taxation be uniform if it should not be applied to a group of citizens in the same situation as other income earners ? It is to us inconceivable that the framers ever intended to relieve certain officers of the Government from sharing with their fellows citizens the material burden of the Government — to exempt their salaries from taxes. Moreover, the Constitution itself specifies what properties are exempt from taxes, namely: "Cemeteries, churches, and parsonages or convents appurtenant thereto, and all lands, buildings, and improvements

used exclusively for religious, charitable, or educational purposes." (Sec. 22 [3], Article VI.) The omission of the salaries in question from this enumeration is in itself an eloquent manifestation of intention to continue the imposition of taxes thereon as provided in the existing law. Inclusio est exclusio alterius. We have thus far read and construed the pertinent portions of our own Constitution and income tax law in the light of the antecedent circumstances and of the operative factors which prevailed at the time our Constitution was framed, independently of the construction now prevailing in the United States of similar provisions of the federal Constitution in relation to the present federal income tax law, under which the justices of the Supreme Court, and the federal judges are now, and since the case of O'Malley vs. Woodrough was decided on May 22, 1939, have been, paying income tax on their salaries. Were this a majority opinion, we could end here with the consequent reversal of the judgment appealed from. But ours is a voice in the wilderness, and we may permit ourselves to utter it with more vehemence and emphasis so that future players on this stage perchance may hear and heed it. Who knows? The Gospel itself was a voice in the wilderness at the time it was uttered. We have to comment on Anglo-American precedents since the majority decision from which we dissent is based on some of them. Indeed, the majority say they "hardly do nothing more than to borrow therefrom and to compare their conclusions to local conditions." which we shall presently show did not obtain in the United States at the time the federal and state Constitutions were adopted. We shall further show that in any event what they now borrow is not usable because it has long been withdrawn from circulation. When the American Constitution was framed and adopted, there was no income tax law in the United States. To this circumstance may be attributed the claim made by some federal judges headed by Chief Justice Taney, when under the Act of Congress of July 1, 1862, their salaries were subjected to an income tax, that such tax was a diminution of their salaries and therefore prohibited by the Constitution. Chief Justice Taney's claim and his protest against the tax were not heeded, but no federal judge deemed it proper to sue the Collector of Internal Revenue to recover the taxes they continued to pay under protest for several years. In 1869, the Secretary of the Treasury referred the question to Atty. General Hoar, and that officer rendered an opinion in substantial accord with Chief Justice Taney's protest, and also advised that the tax on the President's compensation was likewise invalid. No judicial pronouncement, however, was made of such invalidity until June 1, 1920, when the case of Evans vs. Gore (253 U.S. 245, 64 L. ed. 887) was decided upon the constitutionality of section 213 of the Act of February 24, 1919, which required the computation of incomes for the purpose of taxation to embrace all gains, profits, income and the like,

"including in the case of the President of the United States, the judges of the Supreme and inferior courts of the United States, [and others] . . . the compensation received as such." The Supreme Court of the United States, speaking through Mr. Justice Van Devanter, sustained the suit with the dissent of Justice Holmes and Brandeis. The doctrine of Evans vs. Gore holding in effect that an income tax on a judge's salary is a diminution thereof prohibited by the Constitution, was reaffirmed in 1925 in Miles vs. Graham, 69 L. ed 1067. In 1939, however, the case of O'Malley vs. Woodrough (59 S. Ct. 838, 122 A. L. R. 1379) was brought up to the test the validity of section 22 of the Revenue Act of June 6, 1932, which included in the "gross income," on the basis of which taxes were to be paid, the compensation of "judges of courts of the United States taking office after June 6, 1932." And in that case the Supreme Court of the United States, with only one dissent (that of Justice Butler), abandoned the doctrine of Evans vs. Gore  and Miles vs. Graham by holding: To subject them [the judges] to a general tax is merely to recognize that judges are also citizens, and that their particular function in government does not generate an immunity from sharing with their fellow citizens the material burden of the government whose Constitution and laws they are charged with administering. The decision also says: To suggest that it [the law in question] makes inroads upon the independence of judges who took office after Congress had thus charged them with the common duties of citizenship, by making them bear their aliquot share of the cost of maintaining the Government, is to trivialize the great historic experience on which the framers based the safeguard of Article 3, section 1. Commenting on the above-quoted portions of the latest decision of the Supreme Court of the United States on the subject, Prof. William Bennett, Munro, in his book, The Government of the United States, which is used as a text in various universities, says: ". . . All of which seems to be common sense, for surely the framers of the Constitution from ever cutting a judge's salary, did not intend to relieve all federal judges from the general obligations of citizenship. As for the President, he has never raised the issue; every occupant of the White House since 1913 has paid his income tax without protest. (Pages 371-372.)

We emphasize that the doctrine of Evans vs. Gore and Miles vs. Graham is no longer operative, and that all United States judges, including those who took office before June 6, 1932, are subject to and pay income tax on their salaries; for after the submission of O'Malley vs. Woodrough for decision the Congress of the United States, by section 3 of the Public Salary Act of 1939, amended section 22 (a) of the Revenue Act of June 6, 1932, so as to make it applicable to "judges of courts of the United States who took office on or before June 6, 1932." And the validity of that Act, in force for more than a decade, has not been challenged. Our colleagues import and transplant here the dead limbs of Evans vs. Gore and Miles vs. Graham and attempt to revive and nurture them with painstaking analyses and diagnoses that they had not suffered a fatal blow from O'Malley vs. Woodrough. We refuse to join this heroic attempt because we believe it is futile. They disregard the actual damage and minimize it by trying to discover the process by which it was inflicted and he motivations that led to the infliction. They say that the chief axe-wielder, Justice Frankfurter, was a Harvard graduate and professor and that the Harvard Law Journal had criticized Evans vs. Gore; that the dissenters in said case (Holmes and Brandeis) were Harvard men like Frankfurter; and that they believe this to be the "inarticulate consideration that may have influenced the grounds on which the case [O'Malley vs. Woodrough] went off." This argument is not valid, in our humble belief. It was not only the Harvard Law Journal that had criticized Evans vs. Gore. Justice Frankfurter and his colleagues said that the decision in that case "met with wide and steadily growing disfavor from legal scholarship and professional opinion," and they cited the following: Clark, Furthermore Limitations Upon Federal Income Taxation, 30 Yale L. J. 75; Corwin, Constitutional Law in 1919-1920, 15 Am. Pol. Sci. Rev. 635, 641644; Fellman, Diminution of Judicial Salaries, 24 Iowa L. Rev. 89; Lowndes, Taxing Income of Federal Judiciary, 19 Va. L. Rev. 153; Powell, Constitutional Law in 1919-1920, 19 Mich. L. Rev. 117, 118; Powell, The Sixteenth Amendment and Income from State Securities, National Income Tax Magazine (July, 1923), 5, 6; 20 Columbia L. Rev. 794; 43 Harvard L. Rev. 318; 20 Ill. L. Rev. 376; 45 Law Quarterly Rev. 291; 7 Va. L. Rev. 69; 3 University of Chicago L. Rev. 141. Justice Frankfurter and his colleagues also said that "Evans vs. Gore itself was rejected by most of the courts before whom the matter came after that decision." Is not the intention to throw Evans vs. Gore into the graveyard of abandoned cases manifest from all this and from the holding that judges are also citizens, liable to income tax on their salaries? The majority say that "unless and until our legislature approves an amendment to the income tax law expressly taxing 'the salaries of judges thereafter appointed,' the O'Malley case is not relevant." We have shown that

our income tax law taxes the salaries of judges as clearly as if they are specifically mentioned therein, and that said law took effect long before the adoption of the Constitution and long before the plaintiff was appointed. We agree that the purpose of the constitutional provision against diminution of the salaries of judges during their continuance in office is to safeguard the independence of the Judicial Department. But we disagree that to subject the salaries of judges to a general income tax law applicable to all income earners would in any way affect their independence. Our own experience since the income tax law went effect in 1920 is the best refutation of such assumption. The majority give an example by which the independence of judges may be imperiled thru the imposition of a tax on their salaries. They say: Suppose there is power to tax the salaries of judges and the judiciary incurs the displeasure of the Legislature and the Executive. In retaliation the income tax law is amended so as to levy a 30 per cent tax on all salaries of government officials on the level of judges, and by means of another law the salaries of the executive and the legislative branches are increased to compensate for the 30 per cent reduction of their salaries. To this we reply that if such a vindictive measure is ever resorted to (which we cannot imagine), we shall be the first ones to vote to strike it down as a palpable violation of the Constitution. There is no parity between such hypothetical law and the general income tax law invoked by the defendant in this case. We believe that an income tax law applicable only against the salaries of judges and not against those or all other income earners may be successfully assailed as being in contravention not only of the provision against diminution of the salaries of judges but also of the uniformity of the rule of taxation as well as of the equal protection clause of the Constitution. So the danger apprehended by the majority is not real but surely imaginary. We vote for the reversal of the judgment appealed from the dismissal of plaintiff's complaint.

G.R. No. L-6355-56             August 31, 1953 PASTOR M. ENDENCIA and FERNANDO JUGO, plaintiffs-appellees, vs. SATURNINO DAVID, as Collector of Internal Revenue, defendant-appellant. Office of the Solicitor General Juan R. Liwag and Solicitor Jose P. Alejandro for appellant. Manuel O. Chan for appellees. MONTEMAYOR, J.: This is a joint appeal from the decision of the Court of First Instance of Manila declaring section 13 of Republic Act No. 590 unconstitutional, and ordering the appellant Saturnino David as Collector of Internal Revenue to re-fund to Justice Pastor M. Endencia the sum of P1,744.45, representing the income tax collected on his salary as Associate Justice of the Court of Appeals in 1951, and to Justice Fernando Jugo the amount of P2,345.46, representing the income tax collected on his salary from January 1,1950 to October 19, 1950, as Presiding Justice of the Court of Appeals, and from October 20, 1950 to December 31,1950, as Associate Justice of the Supreme Court, without special pronouncement as to costs. Because of the similarity of the two cases, involving as they do the same question of law, they were jointly submitted for determination in the lower court. Judge Higinio B. Macadaeg presiding, in a rather exhaustive and well considered decision found and held that under the doctrine laid down by this Court in the case of Perfecto vs. Meer, 85 Phil., 552, the collection of income taxes from the salaries of Justice Jugo and Justice Endencia was a diminution of their compensation and therefore was in violation of the Constitution of the Philippines, and so ordered the refund of said taxes. We see no profit and necessity in again discussing and considering the proposition and the arguments pro and cons involved in the case of Perfecto vs. Meer, supra, which are raised, brought up and presented here. In that case, we have held despite the ruling enunciated by the United States Federal Supreme Court in the case of O 'Malley vs. Woodrought 307 U. S., 277, that taxing the salary of a judicial officer in the Philippines is a diminution of such salary and so violates the Constitution. We shall now confine our-selves to a discussion and determination of the remaining question of whether or not Republic Act No. 590, particularly section 13, can justify and legalize the collection of income tax on the salary of judicial officers. According to the brief of the Solicitor General on behalf of appellant Collector of Internal Revenue, our decision in the case of Perfecto vs. Meer, supra, was not received favorably by Congress, because immediately after its promulgation, Congress enacted Republic Act No. 590. To bring home his point, the Solicitor General reproduced what he considers the pertinent discussion in the Lower House of House Bill No. 1127 which became Republic Act No. 590.

For purposes of reference, we are reproducing section 9, Article VIII of our Constitution:. SEC. 9. The members of the Supreme Court and all judges of inferior courts shall hold office during good behavior, until they reach the age of seventy years, or become incapacitated to discharge the duties of their office. They shall receive such compensation as may be fixed by law, which shall not be diminished during their continuance in office. Until the Congress shall provide otherwise, the Chief Justice of the Supreme Court shall receive an annual compensation of sixteen thousand pesos, and each Associate Justice, fifteen thousand pesos. As already stated construing and applying the above constitutional provision, we held in the Perfecto case that judicial officers are exempt from the payment of income tax on their salaries, because the collection thereof by the Government was a decrease or diminution of their salaries during their continuance in office, a thing which is expressly prohibited by the Constitution. Thereafter, according to the Solicitor General, because Congress did not favorably receive the decision in the Perfecto case, Congress promulgated Republic Act No. 590, if not to counteract the ruling in that decision, at least now to authorize and legalize the collection of income tax on the salaries of judicial officers. We quote section 13 of Republic Act No. 590: SEC 13. No salary wherever received by any public officer of the Republic of the Philippines shall be considered as exempt from the income tax, payment of which is hereby declared not to be dimunition of his compensation fixed by the Constitution or by law. So we have this situation. The Supreme Court in a decision interpreting the Constitution, particularly section 9, Article VIII, has held that judicial officers are exempt from payment of income tax on their salaries, because the collection thereof was a diminution of such salaries, specifically prohibited by the Constitution. Now comes the Legislature and in section 13, Republic Act No. 590, says that "no salary wherever received by any public officer of the Republic (naturally including a judicial officer) shall be considered as exempt from the income tax," and proceeds to declare that payment of said income tax is not a diminution of his compensation. Can the Legislature validly do this? May the Legislature lawfully declare the collection of income tax on the salary of a public official, specially a judicial officer, not a decrease of his salary, after the Supreme Court has found and decided otherwise? To determine this question, we shall have to go back to the fundamental principles regarding separation of powers. Under our system of constitutional government, the Legislative department is assigned the power to make and enact laws. The Executive department is charged with the execution of carrying out of the provisions of said laws. But the interpretation and application of said laws belong exclusively to the Judicial department. And this authority to interpret and apply the laws extends to the

Constitution. Before the courts can determine whether a law is constitutional or not, it will have to interpret and ascertain the meaning not only of said law, but also of the pertinent portion of the Constitution in order to decide whether there is a conflict between the two, because if there is, then the law will have to give way and has to be declared invalid and unconstitutional. Defining and interpreting the law is a judicial function and the legislative branch may not limit or restrict the power granted to the courts by the Constitution. (Bandy vs. Mickelson et al., 44N. W., 2nd 341, 342.) When it is clear that a statute transgresses the authority vested in the legislature by the Constitution, it is the duty of the courts to declare the act unconstitutional because they cannot shrink from it without violating their oaths of office. This duty of the courts to maintain the Constitution as the fundamental law of the state is imperative and unceasing; and, as Chief Justice Marshall said, whenever a statute is in violation of the fundamental law, the courts must so adjudge and thereby give effect to the Constitution. Any other course would lead to the destruction of the Constitution. Since the question as to the constitutionality of a statute is a judicial matter, the courts will not decline the exercise of jurisdiction upon the suggestion that action might be taken by political agencies in disregard of the judgment of the judicial tribunals. (11 Am. Jur., 714-715.) Under the American system of constitutional government, among the most important functions in trusted to the judiciary are the interpreting of Constitutions and, as a closely connected power, the determination of whether laws and acts of the legislature are or are not contrary to the provisions of the Federal and State Constitutions. (11 Am. Jur., 905.). By legislative fiat as enunciated in section 13, Republic Act NO. 590, Congress says that taxing the salary of a judicial officer is not a decrease of compensation. This is a clear example of interpretation or ascertainment of the meaning of the phrase "which shall not be diminished during their continuance in office," found in section 9, Article VIII of the Constitution, referring to the salaries of judicial officers. This act of interpreting the Constitution or any part thereof by the Legislature is an invasion of the well-defined and established province and jurisdiction of the Judiciary. The rule is recognized elsewhere that the legislature cannot pass any declaratory act, or act declaratory of what the law was before its passage, so as to give it any binding weight with the courts. A legislative definition of a word as used in a statute is not conclusive of its meaning as used elsewhere; otherwise, the legislature would be usurping a judicial function in defining a term. (11 Am. Jur., 914, emphasis supplied) The legislature cannot, upon passing a law which violates a constitutional provision, validate it so as to prevent an attack thereon in the courts, by a declaration that it shall be so construed as not to violate the constitutional inhibition. (11 Am. Jur., 919, emphasis supplied)

We have already said that the Legislature under our form of government is assigned the task and the power to make and enact laws, but not to interpret them. This is more true with regard to the interpretation of the basic law, the Constitution, which is not within the sphere of the Legislative department. If the Legislature may declare what a law means, or what a specific portion of the Constitution means, especially after the courts have in actual case ascertain its meaning by interpretation and applied it in a decision, this would surely cause confusion and instability in judicial processes and court decisions. Under such a system, a final court determination of a case based on a judicial interpretation of the law of the Constitution may be undermined or even annulled by a subsequent and different interpretation of the law or of the Constitution by the Legislative department. That would be neither wise nor desirable, besides being clearly violative of the fundamental, principles of our constitutional system of government, particularly those governing the separation of powers. So much for the constitutional aspect of the case. Considering the practical side thereof, we believe that the collection of income tax on a salary is an actual and evident diminution thereof. Under the old system where the in-come tax was paid at the end of the year or sometime thereafter, the decrease may not be so apparent and clear. All that the official who had previously received his full salary was called upon to do, was to fulfill his obligation and to exercise his privilege of paying his income tax on his salary. His salary fixed by law was received by him in the amount of said tax comes from his other sources of income, he may not fully realize the fact that his salary had been decreased in the amount of said income tax. But under the present system of withholding the income tax at the source, where the full amount of the income tax corresponding to his salary is computed in advance and divided into equal portions corresponding to the number of pay-days during the year and actually deducted from his salary corresponding to each payday, said official actually does not receive his salary in full, because the income tax is deducted therefrom every payday, that is to say, twice a month. Let us take the case of Justice Endencia. As Associate Justice of the Court of Appeals, his salary is fixed at p12,000 a year, that is to say, he should receive P1,000 a month or P500 every payday, — fifteenth and end of month. In the present case, the amount collected by the Collector of Internal Revenue on said salary is P1,744.45 for one year. Divided by twelve (months) we shall have P145.37 a month. And further dividing it by two paydays will bring it down to P72.685, which is the income tax deducted form the collected on his salary each half month. So, if Justice Endencia's salary as a judicial officer were not exempt from payment of the income tax, instead of receiving P500 every payday, he would be actually receiving P427.31 only, and instead of receiving P12,000 a year, he would be receiving but P10,255.55. Is it not therefor clear that every payday, his salary is actually decreased by P72.685 and every year is decreased by P1,744.45?

Reading the discussion in the lower House in connection with House Bill No. 1127, which became Republic Act No. 590, it would seem that one of the main reasons behind the enactment of the law was the feeling among certain legislators that members of the Supreme Court should not enjoy any exemption and that as citizens, out of patriotism and love for their country, they should pay income tax on their salaries. It might be stated in this connection that the exemption is not enjoyed by the members of the Supreme Court alone but also by all judicial officers including Justices of the Court of Appeals and judges of inferior courts. The exemption also extends to other constitutional officers, like the President of the Republic, the Auditor General, the members of the Commission on Elections, and possibly members of the Board of Tax Appeals, commissioners of the Public Service Commission, and judges of the Court of Industrial Relations. Compares to the number of all these officials, that of the Supreme Court Justices is relatively insignificant. There are more than 990 other judicial officers enjoying the exemption, including 15 Justices of the Court of Appeals, about 107 Judges of First Instance, 38 Municipal Judges and about 830 Justices of the Peace. The reason behind the exemption in the Constitution, as interpreted by the United States Federal Supreme Court and this Court, is to preserve the independence of the Judiciary, not only of this High Tribunal but of the other courts, whose present membership number more than 990 judicial officials. The exemption was not primarily intended to benefit judicial officers, but was grounded on public policy. As said by Justice Van Devanter of the United States Supreme Court in the case of Evans vs. Gore (253 U. S., 245): The primary purpose of the prohibition against diminution was not to benefit the judges, but, like the clause in respect of tenure, to attract good and competent men to the bench and to promote that independence of action and judgment which is essential to the maintenance of the guaranties, limitations and pervading principles of the Constitution and to the administration of justice without respect to person and with equal concern for the poor and the rich. Such being its purpose, it is to be construed, not as a private grant, but as a limitation imposed in the public interest; in other words, not restrictively, but in accord with its spirit and the principle on which it proceeds. Having in mind the limited number of judicial officers in the Philippines enjoying this exemption, especially when the great bulk thereof are justices of the peace, many of them receiving as low as P200 a month, and considering further the other exemptions allowed by the income tax law, such as P3,000 for a married person and P600 for each dependent, the amount of national revenue to be derived from income tax on the salaries of judicial officers, were if not for the constitutional exemption, could not be large or substantial. But even if it were otherwise, it should not affect, much less outweigh the purpose and the considerations that prompted the establishment of the constitutional exemption. In the same case of Evans vs.

Gore, supra, the Federal Supreme Court declared "that they (fathers of the Constitution) regarded the independence of the judges as far as greater importance than any revenue that could come from taxing their salaries. When a judicial officer assumed office, he does not exactly ask for exemption from payment of income tax on his salary, as a privilege . It is already attached to his office, provided and secured by the fundamental law, not primarily for his benefit, but based on public interest, to secure and preserve his independence of judicial thought and action. When we come to the members of the Supreme Court, this excemption to them is relatively of short duration. Because of the limited membership in this High Tribunal, eleven, and due to the high standards of experience, practice and training required, one generally enters its portals and comes to join its membership quite late in life, on the aver-age, around his sixtieth year, and being required to retire at seventy, assuming that he does not die or become incapacitated earlier, naturally he is not in a position to receive the benefit of exemption for long. It is rather to the justices of the peace that the exemption can give more benefit. They are relatively more numerous, and because of the meager salary they receive, they can less afford to pay the income tax on it and its diminution by the amount of the income tax if paid would be real, substantial and onerous. Considering exemption in the abstract, there is nothing unusual or abhorrent in it, as long as it is based on public policy or public interest. While all other citizens are subject to arrest when charged with the commission of a crime, members of the Senate and House of Representatives except in cases of treason, felony and breach of the peace are exempt from arrest, during their attendance in the session of the Legislature; and while all other citizens are generally liable for any speech, remark or statement, oral or written, tending to cause the dishonor, discredit or contempt of a natural or juridical person or to blacken the memory of one who is dead, Senators and Congressmen in making such statements during their sessions are extended immunity and exemption. And as to tax exemption, there are not a few citizens who enjoy this exemption. Persons, natural and juridical, are exempt from taxes on their lands, buildings and improvements thereon when used exclusively for educational purposes, even if they derive income therefrom. (Art. VI, Sec. 22 [3].) Holders of government bonds are exempted from the payment of taxes on the income or interest they receive therefrom (sec. 29 (b) [4], National Internal Revenue Code as amended by Republic Act No. 566). Payments or income received by any person residing in the Philippines under the laws of the United States administered by the United States Veterans Administration are exempt from taxation. (Republic Act No. 360). Funds received by officers and enlisted men of the Philippine Army who served in the Armed Forces of the United States, allowances earned by virtue of such services corresponding to the taxable years 1942 to 1945, inclusive, are exempted from income tax. (Republic

Act No. 210). The payment of wages and allowances of officers and enlisted men of the Army Forces of the Philippines sent to Korea are also exempted from taxation. (Republic Act No. 35). In other words, for reasons of public policy and public interest, a citizen may justifiably by constitutional provision or statute be exempted from his ordinary obligation of paying taxes on his income. Under the same public policy and perhaps for the same it not higher considerations, the framers of the Constitution deemed it wise and necessary to exempt judicial officers from paying taxes on their salaries so as not to decrease their compensation, thereby insuring the independence of the Judiciary. In conclusion we reiterate the doctrine laid down in the case of Perfecto vs. Meer, supra, to the effect that the collection of income tax on the salary of a judicial officer is a diminution thereof and so violates the Constitution. We further hold that the interpretation and application of the Constitution and of statutes is within the exclusive province and jurisdiction of the Judicial department, and that in enacting a law, the Legislature may not legally provide therein that it be interpreted in such a way that it may not violate a Constitutional prohibition, thereby tying the hands of the courts in their task of later interpreting said statute, specially when the interpretation sought and provided in said statute runs counter to a previous interpretation already given in a case by the highest court of the land. In the views of the foregoing considerations, the decision appealed from is hereby affirmed, with no pronouncement as to costs. Pablo, Bengzon, Padilla, Tuason, Reyes, and Labrador, JJ., concur.

Separate Opinions BAUTISTA ANGELO, J., concurring: Without expressing any opinion on the doctrine laid down by this Court in the case of Perfecto vs. Meer, G. R. No. L-2314, in view of the part I had in that case as former Solicitor General, I wish however to state that I concur in the opinion of the majority to the effect that section 13, Republic Act No. 590, in so far as it provides that taxing of the salary of a judicial officer shall be considered "not to be a diminution of his compensation fixed by the Constitution or by law", constitutes an invasion of the province and jurisdiction of the judiciary. In this sense, I am of the opinion that said section is null and void, it being a transgression of the fundamental principle underlying the separation of powers.

[G.R. No. L-78780. July 23, 1987.] DAVID G. NITAFAN, WENCESLAO M. POLO, and MAXIMO A. SAVELLANO, JR., Petitioners, v. COMMISSIONER OF INTERNAL REVENUE and THE FINANCIAL OFFICER, SUPREME COURT OF THE PHILIPPINES, Respondents.

RESOLUTION

MELENCIO-HERRERA, J.:

Petitioners, the duly appointed and qualified Judges presiding over Branches 52, 19 and 53, respectively, of the Regional Trial Court, National Capital Judicial Region, all with stations in Manila, seek to prohibit and/or perpetually enjoin respondents, the Commissioner of Internal Revenue and the Financial Officer of the Supreme Court, from making any deduction of withholding taxes from their salaries.chanrobles.com : virtual law library In a nutshell, they submit that "any tax withheld from their emoluments or compensation as judicial officers constitutes a decrease or diminution of their salaries, contrary to the provision of Section 10, Article VIII of the 1987 Constitution mandating that ‘(d)uring their continuance in office, their salary shall not be decreased,’ even as it is anathema to the ideal of an independent judiciary envisioned in and by said Constitution."cralaw virtua1aw library It may be pointed out that, early on, the Court had dealt with the matter administratively in response to representations that the Court direct its Finance Officer to discontinue the withholding of taxes from salaries of members of the Bench. Thus, on June 4, 1987, the Court en banc had reaffirmed the Chief Justice’s directive as follows:jgc:chanrobles.com.ph "RE: Question of exemption from income taxation. — The Court REAFFIRMED the Chief Justice’s previous and standing directive to the Fiscal Management and Budget Office of this Court to continue with the deduction of the withholding taxes from the salaries of the Justices of the Supreme Court as well as from the salaries of all other members of the judiciary."cralaw virtua1aw library That should have resolved the question. However, with the filing of this petition,

the Court has deemed it best to settle the legal issue raised through this judicial pronouncement. As will be shown hereinafter, the clear intent of the Constitutional Commission was to delete the proposed express grant of exemption from payment of income tax to members of the Judiciary, so as to "give substance to equality among the three branches of Government" in the words of Commissioner Rigos. In the course of the deliberations, it was further expressly made clear, specially with regard to Commissioner Joaquin F. Bernas’ accepted amendment to the amendment of Commissioner Rigos, that the salaries of members of the Judiciary would be subject to the general income tax applied to all taxpayers. This intent was somehow and inadvertently not clearly set forth in the final text of the Constitution as approved and ratified in February, 1987 (infra, pp. 7-8). Although the intent may have been obscured by the failure to include in the General Provisions a proscription against exemption of any public officer or employee, including constitutional officers, from payment of income tax, the Court since then has authorized the continuation of the deduction of the withholding tax from the salaries of the members of the Supreme Court, as well as from the salaries of all other members of the Judiciary. The Court hereby makes of record that it had then discarded the ruling in Perfecto v. Meer and Endencia v. David, infra, that declared the salaries of members of the Judiciary exempt from payment of the income tax and considered such payment as a diminution of their salaries during their continuance in office. The Court hereby reiterates that the salaries of Justices and Judges are properly subject to a general income tax law applicable to all income earners and that payment of such income tax by Justices and Judges does not fall within the constitutional protection against decrease of their salaries during their continuance in office.chanrobles virtual lawlibrary A comparison of the Constitutional provisions involved is called for. The 1935 Constitution provided:jgc:chanrobles.com.ph ". . . (The members of the Supreme Court and all judges of inferior courts) shall receive such compensation as may be fixed by law, which shall not be diminished during their continuance in office . . ." 1 (Emphasis supplied). Under the 1973 Constitution, the same provision read:jgc:chanrobles.com.ph "The salary of the Chief Justice and of the Associate Justices of the Supreme Court, and of judges of inferior courts shall be fixed by law, which shall not be decreased during their continuance in office . . ." 2 (Emphasis ours). And in respect of income tax exemption, another provision in the same 1973

Constitution specifically stipulated:jgc:chanrobles.com.ph "No salary or any form of emolument of any public officer or employee, including constitutional officers, shall be exempt from payment of income tax." 3 The provision in the 1987 Constitution, which petitioners rely on, reads:jgc:chanrobles.com.ph "The salary of the Chief Justice and of the Associate Justices of the Supreme Court, and of judges of lower courts shall be fixed by law. During their continuance in office, their salary shall not be decreased.." 4 (Emphasis supplied). The 1987 Constitution does not contain a provision similar to Section 6, Article XV of the 1973 Constitution, for which reason, petitioners claim that the intent of the framers is to revert to the original concept of "non-diminution" of salaries of judicial officers. The deliberations of the 1986 Constitutional Commission relevant to Section 10, Article VIII, negate such contention. The draft proposal of Section 10, Article VIII, of the 1987 Constitution read:jgc:chanrobles.com.ph "Section 13. The salary of the Chief Justice and the Associate Justices of the Supreme Court and of judges of the lower courts shall be fixed by law. During their continuance in office, their salary shall not be diminished nor subjected to income tax. Until the National Assembly shall provide otherwise, the Chief Justice shall receive an annual salary of _________ and each Associate Justice ____ pesos." 5 (Emphasis ours). During the debates on the draft Article (Committee Report No. 18), two Commissioners presented their objections to the provision on tax exemption, thus:chanrobles.com:cralaw:red "MS. AQUINO. Finally, on the matter of exemption from tax of the salary of justices, does this not violate the principle of the uniformity of taxation and the principle of equal protection of the law? After all, tax is levied not on the salary but on the combined income, such that when the judge receives a salary and it is comingled with the other income, we tax the income, not the salary. Why do we have to give special privileges to the salary of justices?

"MR. CONCEPCION. It is the independence of the judiciary. We prohibit the increase or decrease of their salary during their term. This is an indirect way of decreasing their salary and affecting the independence of the judges. "MS. AQUINO. I appreciate that to be in the nature of a clause to respect tenure, but the special privilege on taxation might, in effect, be a violation of the principle of uniformity in taxation and the equal protection clause. 6 x          x          x

"MR. OPLE. . . . "Of course, we share deeply the concern expressed by the sponsor, Commissioner Roberto Concepcion, for whom we have the highest respect, to surround the Supreme Court and the judicial system as a whole with the whole armor of defense against the executive and legislative invasion of their independence. But in so doing, some of the citizens outside, especially the humble government employees, might say that in trying to erect a bastion of justice, we might end up with the fortress of privileges, an island of extra territoriality under the Republic of the Philippines, because a good number of powers and rights accorded to the Judiciary here may not be enjoyed in the remotest degree by other employees of the government. "An example is the exception from income tax, which is a kind of economic immunity, which is, of course, denied to the entire executive department and the legislative." 7 And during the period of amendments on the draft Article, on July 14, 1986, Commissioner Cirilo A. Rigos proposed that the term "diminished" be changed to "decreased" and that the words "nor subjected to income tax" be deleted so as to "give substance to equality among the three branches in the government."cralaw virtua1aw library Commissioner Florenz D. Regalado, on behalf of the Committee on the Judiciary, defended the original draft and referred to the ruling of this Court in Perfecto v. Meer 8 that "the independence of the judges is of far greater importance than any revenue that could come from taxing their salaries." Commissioner Rigos then moved that the matter be put to a vote. Commissioner Joaquin G. Bernas stood up "in support of an amendment to the amendment with the request for a modification of the amendment," as follows:jgc:chanrobles.com.ph "FR. BERNAS. Yes. I am going to propose an amendment to the amendment saying

that it is not enough to drop the phrase ‘shall not be subjected to income tax,’ because if that is all that the Gentleman will do, then he will just fall back on the decision in Perfecto v. Meer and in Dencia v. David [should be Endencia and Jugo v. David, etc., 93 Phil. 696] which excludes them from income tax, but rather I would propose that the statement will read: ‘During their continuance in office, their salary shall not be diminished BUT MAY BE SUBJECT TO GENERAL INCOME TAX.’ In support of this position, I would say that the argument seems to be that the justice and judges should not be subjected to income tax because they already gave up the income from their practice. That is true also of Cabinet members and all other employees. And I know right now, for instance, there are many people who have accepted employment in the government involving a reduction of income and yet are still subject to income tax. So, they are not the only citizens whose income is reduced by accepting service in government."cralaw virtua1aw library Commissioner Rigos accepted the proposed amendment to the amendment. Commissioner Rustico F. de los Reyes, Jr. then moved for a suspension of the session. Upon resumption, Commissioner Bernas announced:jgc:chanrobles.com.ph "During the suspension, we came to an understanding with the original proponent, Commissioner Rigos, that his amendment on page 6,. line 4 would read: ‘During their continuance in office, their salary shall not be DECREASED.’ But this is on the understanding that there will be a provision in the Constitution similar to Section 6 of Article XV, the General Provisions of the 1973 Constitution, which says:chanrob1es virtual 1aw library ‘No salary or any form of emolument of any public officer or employee, including constitutional officers, shall be exempt from payment of income tax.’ "So, we put a period (.) after ‘DECREASED’ on the understanding that the salary of justices is subject to tax."cralaw virtua1aw library When queried about the specific Article in the General Provisions on nonexemption from tax of salaries of public officers, Commissioner Bernas replied:jgc:chanrobles.com.ph "FR. BERNAS. Yes, I do not know if such an article will be found in the General Provisions. But at any rate, when we put a period (.) after ‘DECREASED,’ it is on the understanding that the doctrine in Perfecto v. Meer and Dencia v. David will not apply anymore."cralaw virtua1aw library The amendment to the original draft, as discussed and understood, was finally

approved without objection.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph "THE PRESIDING OFFICER (Mr. Bengzon). The understanding, therefore, is that there will be a provision under the Article on General Provisions. Could Commissioner Rosario Braid kindly take note that the salaries of officials of the government including constitutional officers shall not be exempt from income tax? The amendment proposed herein and accepted by the Committee now reads as follows: ‘During their continuance in office, their salary shall not be DECREASED’; and the phrase ‘nor subjected to income tax’ is deleted." 9 The debates, interpellations and opinions expressed regarding the constitutional provision in question until it was finally approved by the Commission disclosed that the true intent of the framers of the 1987 Constitution, in adopting it, was to make the salaries of members of the Judiciary taxable. The ascertainment of that intent is but in keeping with the fundamental principle of constitutional construction that the intent of the framers of the organic law and of the people adopting it should be given effect. 10 The primary task in constitutional construction is to ascertain and thereafter assure the realization of the purpose of the framers and of the people in the adoption of the Constitution. 11 It may also be safely assumed that the people in ratifying the Constitution were guided mainly by the explanation offered by the framers. 12 Besides, construing Section 10, Articles VIII, of the 1987 Constitution, which, for clarity, is again reproduced hereunder:jgc:chanrobles.com.ph "The salary of the Chief Justice and of the Associate Justices of the Supreme Court, and of judges of lower courts shall be fixed by law. During their continuance in office, their salary shall not be decreased." (Emphasis supplied). it is plain that the Constitution authorizes Congress to pass a law fixing another rate of compensation of Justices and Judges but such rate must be higher than that which they are receiving at the time of enactment, or if lower, it would be applicable only to those appointed after its approval. It would be a strained construction to read into the provision an exemption from taxation in the light of the discussion in the Constitutional Commission. With the foregoing interpretation, and as stated heretofore, the ruling that "the imposition of income tax upon the salary of judges is a dimunition thereof, and so violates the Constitution" in Perfecto v. Meer, 13 as affirmed in Endencia v. David 14 must be declared discarded. The framers of the fundamental law, as the alter

ego of the people, have expressed in clear and unmistakable terms the meaning and import of Section 10, Article VIII, of the 1987 Constitution that they have adopted. Stated otherwise, we accord due respect to the intent of the people, through the discussions and deliberations of their representatives, in the spirit that all citizens should bear their aliquot part of the cost of maintaining the government and should share the burden of general income taxation equitably. WHEREFORE, the instant petition for Prohibition is hereby dismissed.

G.R. No. 122156 February 3, 1997 MANILA PRINCE HOTEL petitioner, vs. GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF THE GOVERNMENT CORPORATE COUNSEL, respondents. BELLOSILLO, J.: The FiIipino First Policy enshrined in the 1987 Constitution, i.e., in the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos,1 is in oked by petitioner in its bid to acquire 51% of the shares of the Manila Hotel Corporation (MHC) which owns the historic Manila Hotel. Opposing, respondents maintain that the provision is not self-executing but requires an implementing legislation for its enforcement. Corollarily, they ask whether the 51% shares form part of the national economy and patrimony covered by the protective mantle of the Constitution. The controversy arose when respondent Government Service Insurance System (GSIS), pursuant to the privatization program of the Philippine Government under Proclamation No. 50 dated 8 December 1986, decided to sell through public bidding 30% to 51% of the issued and outstanding shares of respondent MHC. The winning bidder, or the eventual "strategic partner," is to provide management expertise and/or an international marketing/reservation system, and financial support to strengthen the profitability and performance of the Manila Hotel.2 In a close bidding held on 18 September 1995 only two (2) bidders participated: petitioner Manila Prince Hotel Corporation, a Filipino 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 operator, which bid for the same number of shares at P44.00 per share, or P2.42 more than the bid of petitioner. Pertinent provisions of the bidding rules prepared by respondent GSIS state — I. EXECUTION OF THE NECESSARY CONTRACTS WITH GSIS/MHC — 1. The Highest Bidder must comply with the conditions set forth below by October 23, 1995 (reset to November 3, 1995) or the Highest Bidder will lose the right to purchase the Block of Shares and GSIS will instead offer the Block of Shares to the other Qualified Bidders: a. The Highest Bidder must negotiate and execute with the GSIS/MHC the Management Contract, International Marketing/Reservation System Contract or other type of contract specified by the Highest Bidder in its strategic plan for the Manila Hotel. . . . b. The Highest Bidder must execute the Stock Purchase and Sale Agreement with GSIS . . . . K. DECLARATION OF THE WINNING BIDDER/STRATEGIC PARTNER —

The Highest Bidder will be declared the Winning Bidder/Strategic Partner after the following conditions are met: a. Execution of the necessary contracts with GSIS/MHC not later than October 23, 1995 (reset to November 3, 1995); and b. Requisite approvals from the GSIS/MHC and COP (Committee on Privatization)/OGCC (Office of the Government Corporate Counsel) are obtained.3 Pending the declaration of Renong Berhad as the winning bidder/strategic partner and the execution of the necessary contracts, petitioner in a letter to respondent GSIS dated 28 September 1995 matched the bid price of P44.00 per share tendered by Renong Berhad.4 In a subsequent letter dated 10 October 1995 petitioner sent a manager's check issued by Philtrust Bank for Thirty-three Million Pesos (P33.000.000.00) as Bid Security to match the bid of the Malaysian Group, Messrs.  Renong Berhad . . .5 which respondent GSIS refused to accept. On 17 October 1995, perhaps apprehensive that respondent GSIS has disregarded the tender of the matching bid and that the sale of 51% of the MHC may be hastened by respondent GSIS and consummated with Renong Berhad, petitioner came to this Court on prohibition and mandamus. On 18 October 1995 the Court issued a temporary restraining order enjoining respondents from perfecting and consummating the sale to the Malaysian firm. On 10 September 1996 the instant case was accepted by the Court En Banc after it was referred to it by the First Division. The case was then set for oral arguments with former Chief Justice Enrique M. Fernando and Fr. Joaquin G. Bernas, S.J., as amici curiae. In the main, petitioner invokes Sec. 10, second par., Art. XII, of the 1987 Constitution and submits that the Manila Hotel has been identified with the Filipino nation and has practically become a historical monument which reflects the vibrancy of Philippine heritage and culture.  It is a proud legacy of an earlier generation of Filipinos who believed in the nobility and sacredness of independence and its power and capacity to release the full potential of the Filipino people.  To all intents and purposes, it has become a part of the national patrimony.6 Petitioner also argues that since 51% of the shares of the MHC carries with it the ownership of the business of the hotel which is owned by respondent GSIS, a government-owned and controlled corporation, the hotel business of respondent GSIS being a part of the tourism industry is unquestionably a part of the national economy. Thus, any transaction involving 51% of the shares of stock of the MHC is clearly covered by the term national economy, to which Sec. 10, second par., Art. XII, 1987 Constitution, applies.7 It is also the thesis of petitioner that since Manila Hotel is part of the national patrimony and its business also unquestionably part of the national economy petitioner should be preferred after it has matched the bid offer of the Malaysian firm. For the bidding rules mandate that if for any reason, the Highest Bidder

cannot be awarded the Block of Shares, GSIS may offer this to the other Qualified Bidders that have validly submitted bids provided that these Qualified Bidders are willing to match the highest bid in terms of price per share.8 Respondents except. They maintain that: First, Sec. 10, second par., Art. XII, of the 1987 Constitution is merely a statement of principle and policy since it is not a selfexecuting provision and requires implementing legislation(s) . . . Thus, for the said provision to Operate, there must be existing laws "to lay down conditions under which business may be done."9 Second, granting that this provision is self-executing, Manila Hotel does not fall under the term national patrimony which only refers to lands of the public domain, waters, minerals, coal, petroleum and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna and all marine wealth in its territorial sea, and exclusive marine zone as cited in the first and second paragraphs of Sec. 2, Art. XII, 1987 Constitution. According to respondents, while petitioner speaks of the guests who have slept in the hotel and the events that have transpired therein which make the hotel historic, these alone do not make the hotel fall under the patrimony  of the nation. What is more, the mandate of the Constitution is addressed to the State, not to respondent GSIS which possesses a personality of its own separate and distinct from the Philippines as a State. Third, granting that the Manila Hotel forms part of the national patrimony, the constitutional provision invoked is still inapplicable since what is being sold is only 51% of the outstanding shares of the corporation, not the hotel building nor the land upon which the building stands. Certainly, 51% of the equity of the MHC cannot be considered part of the national patrimony. Moreover, if the disposition of the shares of the MHC is really contrary to the Constitution, petitioner should have questioned it right from the beginning and not after it had lost in the bidding. Fourth, the reliance by petitioner on par. V., subpar. J. 1., of the bidding rules which provides that if for any reason, the Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to the other Qualified Bidders that have validly submitted bids provided that these Qualified Bidders are willing to match the highest bid in terms of price per share, is misplaced. Respondents postulate that the privilege of submitting a matching bid has not yet arisen since it only takes place if for any reason, the Highest Bidder cannot be awarded the Block of Shares. Thus the submission by petitioner of a matching bid is premature since Renong Berhad could still very well be awarded the block of shares and the condition giving rise to the exercise of the privilege to submit a matching bid had not yet taken place. Finally, the prayer for prohibition grounded on grave abuse of discretion should fail since respondent GSIS did not exercise its discretion in a capricious, whimsical manner, and if ever it did abuse its discretion it was not so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law. Similarly, the petition for mandamus should fail as petitioner has

no clear legal right to what it demands and respondents do not have an imperative duty to perform the act required of them by petitioner. We now resolve. A constitution is a system of fundamental laws for the governance and administration of a nation. It is supreme, imperious, absolute and unalterable except by the authority from which it emanates. It has been defined as the  fundamental and paramount law of the nation. 10 It prescribes the permanent framework of a system of government, assigns to the different departments their respective powers and duties, and establishes certain fixed principles on which government is founded. The fundamental conception in other words is that it is a supreme law to which all other laws must conform and in accordance with which all private rights must be determined and all public authority administered. 11 Under the doctrine of constitutional supremacy, if a law or contract violates any norm of the constitution that law or contract whether promulgated by the legislative or by the executive branch or entered into by private persons for private purposes is null and void and without any force and effect. Thus, since the Constitution is the fundamental, paramount and supreme law of the nation, it is deemed written in every statute and contract. Admittedly, some constitutions are merely declarations of policies and principles. Their provisions command the legislature to enact laws and carry out the purposes of the framers who merely establish an outline of government providing for the different departments of the governmental machinery and securing certain fundamental and inalienable rights of citizens. 12 A provision which lays down a general principle, such as those found in Art. II of the 1987 Constitution, is usually not self-executing. But a provision which is complete in itself and becomes operative without the aid of supplementary or enabling legislation, or that which supplies sufficient rule by means of which the right it grants may be enjoyed or protected, is self-executing. Thus a constitutional provision is self-executing if the nature and extent of the right conferred and the liability imposed are fixed by the constitution itself, so that they can be determined by an examination and construction of its terms, and there is no language indicating that the subject is referred to the legislature for action. 13 As against constitutions of the past, modern constitutions have been generally drafted upon a different principle and have often become in effect extensive codes of laws intended to operate directly upon the people in a manner similar to that of statutory enactments, and the function of constitutional conventions has evolved into one more like that of a legislative body. Hence, unless it is expressly provided that a legislative act is necessary to enforce a constitutional mandate, the presumption now is that all provisions of the constitution are self-executing If the constitutional provisions are treated as requiring legislation instead of selfexecuting, the legislature would have the power to ignore and practically nullify the

mandate of the fundamental law.14 This can be cataclysmic. That is why the prevailing view is, as it has always been, that — . . . in case of doubt, the Constitution should be considered self-executing rather than non-self-executing . . . . Unless the contrary is clearly intended, the provisions of the Constitution should be considered self-executing, as a contrary rule would give the legislature discretion to determine when, or whether, they shall be effective. These provisions would be subordinated to the will of the lawmaking body, which could make them entirely meaningless by simply refusing to pass the needed implementing statute. 15 Respondents argue that Sec. 10, second par., Art. XII, of the 1987 Constitution is clearly not self-executing, as they quote from discussions on the floor of the 1986 Constitutional Commission — MR. RODRIGO. Madam President, I am asking this question as the Chairman of the Committee on Style. If the wording of "PREFERENCE" is given to QUALIFIED FILIPINOS," can it be understood as a preference to qualified Filipinos vis-avis Filipinos who are not qualified. So, why do we not make it clear? To qualified Filipinos as against aliens? THE PRESIDENT. What is the question of Commissioner Rodrigo? Is it to remove the word "QUALIFIED?". MR. RODRIGO. No, no, but say definitely "TO QUALIFIED FILIPINOS" as against whom? As against aliens or over aliens? MR. NOLLEDO. Madam President, I think that is understood. We use the word "QUALIFIED" because the existing laws or prospective laws will always lay down conditions under which business may be done.  For example, qualifications on the setting up of other financial structures, et cetera (emphasis supplied by respondents) MR. RODRIGO. It is just a matter of style. MR. NOLLEDO Yes, 16 Quite apparently, Sec. 10, second par., of Art XII is couched in such a way as not to make it appear that it is non-self-executing but simply for purposes of style. But, certainly, the legislature is not precluded from enacting other further laws to enforce the constitutional provision so long as the contemplated statute squares with the Constitution. Minor details may be left to the legislature without impairing the self-executing nature of constitutional provisions. In self-executing constitutional provisions, the legislature may still enact legislation to facilitate the exercise of powers directly granted by the constitution, further the operation of such a provision, prescribe a practice to be used for its enforcement, provide a convenient remedy for the protection of the rights secured or the determination thereof, or place reasonable safeguards around the exercise of the right. The mere fact that legislation may supplement and add to or prescribe a penalty for the violation of a self-executing constitutional provision does not render

such a provision ineffective in the absence of such legislation. The omission from a constitution of any express provision for a remedy for enforcing a right or liability is not necessarily an indication that it was not intended to be self-executing. The rule is that a self-executing provision of the constitution does not necessarily exhaust legislative power on the subject, but any legislation must be in harmony with the constitution, further the exercise of constitutional right and make it more available. 17 Subsequent legislation however does not necessarily mean that the subject constitutional provision is not, by itself, fully enforceable. Respondents also argue that the non-self-executing nature of Sec. 10, second par., of Art. XII is implied from the tenor of the first and third paragraphs of the same section which undoubtedly are not self-executing. 18 The argument is flawed. If the first and third paragraphs are not self-executing because Congress is still to enact measures to encourage the formation and operation of enterprises fully owned by Filipinos, as in the first paragraph, and the State still needs legislation to regulate and exercise authority over foreign investments within its national jurisdiction, as in the third paragraph, then a fortiori, by the same logic, the second paragraph can only be self-executing as it does not by its language require any legislation in order to give preference to qualified Filipinos in the grant of rights, privileges and concessions covering the national economy and patrimony. A constitutional provision may be self-executing in one part and non-self-executing in another. 19 Even the cases cited by respondents holding that certain constitutional provisions are merely statements of principles and policies, which are basically not selfexecuting and only placed in the Constitution as moral incentives to legislation, not as judicially enforceable rights — are simply not in point. Basco v. Philippine Amusements and Gaming Corporation 20 speaks of constitutional provisions on personal dignity, 21 the sanctity of family life, 22 the vital role of the youth in nationbuilding 23 the promotion of social justice, 24 and the values of education. 25 Tolentino v. Secretary of Finance  26 refers to the constitutional provisions on social justice and human rights 27 and on education. 28 Lastly, Kilosbayan, Inc. v. Morato  29 cites provisions on the promotion of general welfare, 30 the sanctity of family life, 31 the vital role of the youth in nation-building 32 and the promotion of total human liberation and development. 33 A reading of these provisions indeed clearly shows that they are not judicially enforceable constitutional rights but merely guidelines for legislation. The very terms of the provisions manifest that they are only principles upon which the legislations must be based. Res ipsa loquitur. On the other hand, Sec. 10, second par., Art. XII of the of the 1987 Constitution is a mandatory, positive command which is complete in itself and which needs no further guidelines or implementing laws or rules for its enforcement. From its very words the provision does not require any legislation to put it in operation. It is per se judicially enforceable When our Constitution mandates that [i]n the grant of

rights, privileges, and concessions covering national economy and patrimony, the State shall give preference to qualified Filipinos, it means just that — qualified Filipinos shall be preferred. And when our Constitution declares that a right exists in certain specified circumstances an action may be maintained to enforce such right notwithstanding the absence of any legislation on the subject; consequently, if there is no statute especially enacted to enforce such constitutional right, such right enforces itself by its own inherent potency and puissance, and from which all legislations must take their bearings. Where there is a right there is a remedy. Ubi jus ibi remedium. As regards our national patrimony, a member of the 1986 Constitutional Commission 34 explains — The patrimony of the Nation that should be conserved and developed refers not only to out rich natural resources but also to the cultural heritage of out race. It also refers to our intelligence in arts, sciences and letters. Therefore, we should develop not only our lands, forests, mines and other natural resources but also the mental ability or faculty of our people. We agree. In its plain and ordinary meaning, the term patrimony pertains to heritage. 35 When the Constitution speaks of national patrimony, it refers not only to the natural resources of the Philippines, as the Constitution could have very well used the term natural resources, but also to the cultural heritage of the Filipinos. Manila Hotel has become a landmark — a living testimonial of Philippine heritage. While it was restrictively an American hotel when it first opened in 1912, it immediately evolved to be truly Filipino, Formerly a concourse for the elite, it has since then become the venue of various significant events which have shaped Philippine history. It was called the Cultural Center of the 1930's. It was the site of the festivities during the inauguration of the Philippine Commonwealth. Dubbed as the Official Guest House of the Philippine Government. it plays host to dignitaries and official visitors who are accorded the traditional Philippine hospitality. 36 The history of the hotel has been chronicled in the book The Manila Hotel:  The Heart and Memory of a City. 37 During World War II the hotel was converted by the Japanese Military Administration into a military headquarters. When the American forces returned to recapture Manila the hotel was selected by the Japanese together with Intramuros as the two (2) places fro their final stand. Thereafter, in the 1950's and 1960's, the hotel became the center of political activities, playing host to almost every political convention. In 1970 the hotel reopened after a renovation and reaped numerous international recognitions, an acknowledgment of the Filipino talent and ingenuity. In 1986 the hotel was the site of a failed coup d' etat  where an aspirant for vice-president was "proclaimed" President of the Philippine Republic. For more than eight (8) decades Manila Hotel has bore mute witness to the triumphs and failures, loves and frustrations of the Filipinos; its existence is

impressed with public interest; its own historicity associated with our struggle for sovereignty, independence and nationhood. Verily, Manila Hotel has become part of our national economy and patrimony. For sure, 51% of the equity of the MHC comes within the purview of the constitutional shelter for it comprises the majority and controlling stock, so that anyone who acquires or owns the 51% will have actual control and management of the hotel. In this instance, 51% of the MHC cannot be disassociated from the hotel and the land on which the hotel edifice stands. Consequently, we cannot sustain respondents' claim that the Filipino First Policy provision is not applicable since what is being sold is only 51% of the outstanding shares of the corporation, not the Hotel building nor the land upon which the building stands. 38 The argument is pure sophistry. The term qualified Filipinos as used in Our Constitution also includes corporations at least 60% of which is owned by Filipinos. This is very clear from the proceedings of the 1986 Constitutional Commission THE PRESIDENT. Commissioner Davide is recognized. MR. DAVIDE. I would like to introduce an amendment to the Nolledo amendment. And the amendment would consist in substituting the words "QUALIFIED FILIPINOS" with the following: "CITIZENS OF THE PHILIPPINES OR CORPORATIONS OR ASSOCIATIONS WHOSE CAPITAL OR CONTROLLING STOCK IS WHOLLY OWNED BY SUCH CITIZENS. x x x           x x x          x x x MR. MONSOD. Madam President, apparently the proponent is agreeable, but we have to raise a question. Suppose it is a corporation that is 80-percent Filipino, do we not give it preference? MR. DAVIDE. The Nolledo amendment would refer to an individual Filipino. What about a corporation wholly owned by Filipino citizens? MR. MONSOD. At least 60 percent, Madam President. MR. DAVIDE. Is that the intention? MR. MONSOD. Yes, because, in fact, we would be limiting it if we say that the preference should only be 100-percent Filipino. MR: DAVIDE. I want to get that meaning clear because "QUALIFIED FILIPINOS" may refer only to individuals and not to juridical personalities or entities. MR. MONSOD. We agree, Madam President. 39 x x x           x x x          x x x MR. RODRIGO. Before we vote, may I request that the amendment be read again. MR. NOLLEDO. The amendment will read: "IN THE GRANT OF RIGHTS, PRIVILEGES AND CONCESSIONS COVERING THE NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS." And the word "Filipinos" here, as intended by the proponents, will include not only individual Filipinos but also Filipino-controlled entities or entities fully-controlled by Filipinos. 40 The phrase preference to qualified Filipinos was explained thus —

MR. FOZ. Madam President, I would like to request Commissioner Nolledo to please restate his amendment so that I can ask a question. MR. NOLLEDO. "IN THE GRANT OF RIGHTS, PRIVILEGES AND CONCESSIONS COVERING THE NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS." MR FOZ. In connection with that amendment, if a foreign enterprise is qualified and a Filipino enterprise is also qualified, will the Filipino enterprise still be given a preference? MR. NOLLEDO. Obviously. MR. FOZ. If the foreigner is more qualified in some aspects than the Filipino enterprise, will the Filipino still be preferred? MR. NOLLEDO. The answer is "yes." MR. FOZ. Thank you, 41 Expounding further on the Filipino First Policy provision Commissioner Nolledo continues — MR. NOLLEDO. Yes, Madam President. Instead of "MUST," it will be "SHALL — THE STATE SHALL GlVE PREFERENCE TO QUALIFIED FILIPINOS. This embodies the socalled "Filipino First" policy. That means that Filipinos should be given preference in the grant of concessions, privileges and rights covering the national patrimony. 42 The exchange of views in the sessions of the Constitutional Commission regarding the subject provision was still further clarified by Commissioner Nolledo 43 — Paragraph 2 of Section 10 explicitly mandates the "Pro-Filipino" bias in all economic concerns. It is better known as the FILIPINO FIRST Policy . . . This provision was never found in previous Constitutions . . . . The term "qualified Filipinos" simply means that preference shall be given to those citizens who can make a viable contribution to the common good, because of credible competence and efficiency. It certainly does NOT mandate the pampering and preferential treatment to Filipino citizens or organizations that are incompetent or inefficient, since such an indiscriminate preference would be counter productive and inimical to the common good. In the granting of economic rights, privileges, and concessions, when a choice has to be made between a "qualified foreigner" end a "qualified Filipino," the latter shall be chosen over the former." Lastly, the word  qualified is also determinable. Petitioner was so considered by respondent GSIS and selected as one of the qualified bidders. It was pre-qualified by respondent GSIS in accordance with its own guidelines so that the sole inference here is that petitioner has been found to be possessed of proven management expertise in the hotel industry, or it has significant equity ownership in another hotel company, or it has an overall management and marketing proficiency to successfully operate the Manila Hotel. 44

The penchant to try to whittle away the mandate of the Constitution by arguing that the subject provision is not self-executory and requires implementing legislation is quite disturbing. The attempt to violate a clear constitutional provision — by the government itself — is only too distressing. To adopt such a line of reasoning is to renounce the duty to ensure faithfulness to the Constitution. For, even some of the provisions of the Constitution which evidently need implementing legislation have juridical life of their own and can be the source of a judicial remedy. We cannot simply afford the government a defense that arises out of the failure to enact further enabling, implementing or guiding legislation. In fine, the discourse of Fr. Joaquin G. Bernas, S.J., on constitutional government is apt — The executive department has a constitutional duty to implement laws, including the Constitution, even before Congress acts — provided that there are discoverable legal standards for executive action. When the executive acts, it must be guided by its own understanding of the constitutional command and of applicable laws. The responsibility for reading and understanding the Constitution and the laws is not the sole prerogative of Congress. If it were, the executive would have to ask Congress, or perhaps the Court, for an interpretation every time the executive is confronted by a constitutional command. That is not how constitutional government operates. 45 Respondents further argue that the constitutional provision is addressed to the State, not to respondent GSIS which by itself possesses a separate and distinct personality. This argument again is at best specious. It is undisputed that the sale of 51% of the MHC could only be carried out with the prior approval of the State acting through respondent Committee on Privatization. As correctly pointed out by Fr. Joaquin G. Bernas, S.J., this fact alone makes the sale of the assets of respondents GSIS and MHC a "state action." In constitutional jurisprudence, the acts of persons distinct from the government are considered "state action" covered by the Constitution (1) when the activity it engages in is a "public function;" (2) when the government is so significantly involved with the private actor as to make the government responsible for his action; and, (3) when the government has approved or authorized the action. It is evident that the act of respondent GSIS in selling 51% of its share in respondent MHC comes under the second and third categories of "state action." Without doubt therefore the transaction. although entered into by respondent GSIS, is in fact a transaction of the State and therefore subject to the constitutional command. 46 When the Constitution addresses the State it refers not only to the people but also to the government as elements of the State. After all, government is composed of three (3) divisions of power — legislative, executive and judicial. Accordingly, a constitutional mandate directed to the State is correspondingly directed to the three(3) branches of government. It is undeniable that in this case the subject constitutional injunction is addressed among others to the Executive Department

and respondent GSIS, a government instrumentality deriving its authority from the State. It should be stressed that while the Malaysian firm offered the higher bid it is not yet the winning bidder. The bidding rules expressly provide that the highest bidder shall only be declared the winning bidder after it has negotiated and executed the necessary contracts, and secured the requisite approvals. Since the "Filipino First Policy provision of the Constitution bestows preference on qualified Filipinos the mere tending of the highest bid is not an assurance that the highest bidder will be declared the winning bidder. Resultantly, respondents are not bound to make the award yet, nor are they under obligation to enter into one with the highest bidder. For in choosing the awardee respondents are mandated to abide by the dictates of the 1987 Constitution the provisions of which are presumed to be known to all the bidders and other interested parties. Adhering to the doctrine of constitutional supremacy, the subject constitutional provision is, as it should be, impliedly written in the bidding rules issued by respondent GSIS, lest the bidding rules be nullified for being violative of the Constitution. It is a basic principle in constitutional law that all laws and contracts must conform with the fundamental law of the land. Those which violate the Constitution lose their reason for being. Paragraph V. J. 1 of the bidding rules provides that [if] for any reason the Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to other Qualified Bidders that have validly submitted bids provided that these Qualified Bidders are willing to match the highest bid in terms of price per share. 47 Certainly, the constitutional mandate itself is reason enough not to award the block of shares immediately to the foreign bidder notwithstanding its submission of a higher, or even the highest, bid. In fact, we cannot conceive of a stronger reason than the constitutional injunction itself. In the instant case, where a foreign firm submits the highest bid in a public bidding concerning the grant of rights, privileges and concessions covering the national economy and patrimony, thereby exceeding the bid of a Filipino, there is no question that the Filipino will have to be allowed to match the bid of the foreign entity. And if the Filipino matches the bid of a foreign firm the award should go to the Filipino. It must be so if we are to give life and meaning to the Filipino First Policy provision of the 1987 Constitution. For, while this may neither be expressly stated nor contemplated in the bidding rules, the constitutional fiat is, omnipresent to be simply disregarded. To ignore it would be to sanction a perilous skirting of the basic law. This Court does not discount the apprehension that this policy may discourage foreign investors. But the Constitution and laws of the Philippines are understood to be always open to public scrutiny. These are given factors which investors must consider when venturing into business in a foreign jurisdiction. Any person

therefore desiring to do business in the Philippines or with any of its agencies or instrumentalities is presumed to know his rights and obligations under the Constitution and the laws of the forum. The argument of respondents that petitioner is now estopped from questioning the sale to Renong Berhad since petitioner was well aware from the beginning that a foreigner could participate in the bidding is meritless. Undoubtedly, Filipinos and foreigners alike were invited to the bidding. But foreigners may be awarded the sale only if no Filipino qualifies, or if the qualified Filipino fails to match the highest bid tendered by the foreign entity. In the case before us, while petitioner was already preferred at the inception of the bidding because of the constitutional mandate, petitioner had not yet matched the bid offered by Renong Berhad. Thus it did not have the right or personality then to compel respondent GSIS to accept its earlier bid. Rightly, only after it had matched the bid of the foreign firm and the apparent disregard by respondent GSIS of petitioner's matching bid did the latter have a cause of action. Besides, there is no time frame for invoking the constitutional safeguard unless perhaps the award has been finally made. To insist on selling the Manila Hotel to foreigners when there is a Filipino group willing to match the bid of the foreign group is to insist that government be treated as any other ordinary market player, and bound by its mistakes or gross errors of judgment, regardless of the consequences to the Filipino people. The miscomprehension of the Constitution is regrettable. Thus we would rather remedy the indiscretion while there is still an opportunity to do so than let the government develop the habit of forgetting that the Constitution lays down the basic conditions and parameters for its actions. Since petitioner has already matched the bid price tendered by Renong Berhad pursuant to the bidding rules, respondent GSIS is left with no alternative but to award to petitioner the block of shares of MHC and to execute the necessary agreements and documents to effect the sale in accordance not only with the bidding guidelines and procedures but with the Constitution as well. The refusal of respondent GSIS to execute the corresponding documents with petitioner as provided in the bidding rules after the latter has matched the bid of the Malaysian firm clearly constitutes grave abuse of discretion. The Filipino First Policy is a product of Philippine nationalism. It is embodied in the 1987 Constitution not merely to be used as a guideline for future legislation but primarily to be enforced; so must it be enforced. This Court as the ultimate guardian of the Constitution will never shun, under any reasonable circumstance, the duty of upholding the majesty of the Constitution which it is tasked to defend. It is worth emphasizing that it is not the intention of this Court to impede and diminish, much less undermine, the influx of foreign investments. Far from it, the Court encourages and welcomes more business opportunities but avowedly sanctions the preference for Filipinos whenever such preference is ordained by the Constitution. The position

of the Court on this matter could have not been more appropriately articulated by Chief Justice Narvasa — As scrupulously as it has tried to observe that it is not its function to substitute its judgment for that of the legislature or the executive about the wisdom and feasibility of legislation economic in nature, the Supreme Court has not been spared criticism for decisions perceived as obstacles to economic progress and development . . . in connection with a temporary injunction issued by the Court's First Division against the sale of the Manila Hotel to a Malaysian Firm and its partner, certain statements were published in a major daily to the effect that injunction "again demonstrates that the Philippine legal system can be a major obstacle to doing business here. Let it be stated for the record once again that while it is no business of the Court to intervene in contracts of the kind referred to or set itself up as the judge of whether they are viable or attainable, it is its bounden duty to make sure that they do not violate the Constitution or the laws, or are not adopted or implemented with grave abuse of discretion amounting to lack or excess of jurisdiction. It will never shirk that duty, no matter how buffeted by winds of unfair and ill-informed criticism. 48 Privatization of a business asset for purposes of enhancing its business viability and preventing further losses, regardless of the character of the asset, should not take precedence over non-material values. A commercial, nay even a budgetary, objective should not be pursued at the expense of national pride and dignity. For the Constitution enshrines higher and nobler non-material values. Indeed, the Court will always defer to the Constitution in the proper governance of a free society; after all, there is nothing so sacrosanct in any economic policy as to draw itself beyond judicial review when the Constitution is involved. 49 Nationalism is inherent, in the very concept of the Philippines being a democratic and republican state, with sovereignty residing in the Filipino people and from whom all government authority emanates. In nationalism, the happiness and welfare of the people must be the goal. The nation-state can have no higher purpose. Any interpretation of any constitutional provision must adhere to such basic concept. Protection of foreign investments, while laudible, is merely a policy. It cannot override the demands of nationalism. 50 The Manila Hotel or, for that matter, 51% of the MHC, is not just any commodity to be sold to the highest bidder solely for the sake of privatization. We are not talking about an ordinary piece of property in a commercial district. We are talking about a historic relic that has hosted many of the most important events in the short history of the Philippines as a nation. We are talking about a hotel where heads of states would prefer to be housed as a strong manifestation of their desire to cloak the dignity of the highest state function to their official visits to the Philippines. Thus the Manila Hotel has played and continues to play a significant role as an authentic repository of twentieth century Philippine history and culture. In this sense, it has

become truly a reflection of the Filipino soul — a place with a history of grandeur; a most historical setting that has played a part in the shaping of a country. 51 This Court cannot extract rhyme nor reason from the determined efforts of respondents to sell the historical landmark — this Grand Old Dame of hotels in Asia — to a total stranger. For, indeed, the conveyance of this epic exponent of the Filipino psyche to alien hands cannot be less than mephistophelian for it is, in whatever manner viewed, a veritable alienation of a nation's soul for some pieces of foreign silver. And so we ask: What advantage, which cannot be equally drawn from a qualified Filipino, can be gained by the Filipinos Manila Hotel — and all that it stands for — is sold to a non-Filipino? How much of national pride will vanish if the nation's cultural heritage is entrusted to a foreign entity? On the other hand, how much dignity will be preserved and realized if the national patrimony is safekept in the hands of a qualified, zealous and well-meaning Filipino? This is the plain and simple meaning of the Filipino First Policy provision of the Philippine Constitution. And this Court, heeding the clarion call of the Constitution and accepting the duty of being the elderly watchman of the nation, will continue to respect and protect the sanctity of the Constitution. WHEREFORE, respondents GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF THE GOVERNMENT CORPORATE COUNSEL are directed to CEASE and DESIST from selling 51% of the shares of the Manila Hotel Corporation to RENONG BERHAD, and to ACCEPT the matching bid of petitioner MANILA PRINCE HOTEL CORPORATION to purchase the subject 51% of the shares of the Manila Hotel Corporation at P44.00 per share and thereafter to execute the necessary clearances and to do such other acts and deeds as may be necessary for purpose. SO ORDERED. Regalado, Davide, Jr., Romero, Kapunan, Francisco and Hermosisima, Jr., JJ., concur.

Separate Opinions PADILLA, J., concurring: I concur with the  ponencia  of Mr. Justice Bellosillo. At the same time, I would like to expound a bit more on the concept of national patrimony as including within its scope and meaning institutions such as the Manila Hotel. It is argued by petitioner that the Manila Hotel comes under "national patrimony" over which qualified Filipinos have the preference, in ownership and operation. The Constitutional provision on point states: xxx xxx xxx In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall Give preference to qualified Filipinos.1

Petitioner's argument, I believe, is well taken. Under the 1987 Constitution, "national patrimony" consists of the natural resources provided by Almighty God (Preamble) in our territory (Article I) consisting of land, sea, and air.2 study of the 1935 Constitution, where the concept of "national patrimony" originated, would show that its framers decided to adopt the even more comprehensive expression "Patrimony of the Nation" in the belief that the phrase encircles a concept embracing not only their natural resources of the country but practically everything that belongs to the Filipino people, the tangible and the material as well as the intangible and the spiritual assets and possessions of the people. It is to be noted that the framers did not stop with conservation. They knew that conservation alone does not spell progress; and that this may be achieved only through development as a correlative factor to assure to the people not only the exclusive ownership, but also the exclusive benefits of their national patrimony).3 Moreover, the concept of national patrimony has been viewed as referring not only to our rich natural resources but also to the cultural heritage of our race.4 There is no doubt in my mind that the Manila Hotel is very much a part of our national patrimony and, as such, deserves constitutional protection as to who shall own it and benefit from its operation. This institution has played an important role in our nation's history, having been the venue of many a historical event, and serving as it did, and as it does, as the Philippine Guest House for visiting foreign heads of state, dignitaries, celebrities, and others.5 It is therefore our duty to protect and preserve it for future generations of Filipinos. As President Manuel L. Quezon once said, we must exploit the natural resources of our country, but we should do so with. an eye to the welfare of the future generations. In other words, the leaders of today are the trustees of the patrimony of our race. To preserve our national patrimony and reserve it for Filipinos was the intent of the distinguished gentlemen who first framed our Constitution. Thus, in debating the need for nationalization of our lands and natural resources, one expounded that we should "put more teeth into our laws, and; not make the nationalization of our lands and natural resources a subject of ordinary legislation but of constitutional enactment"6 To quote further: "Let not our children be mere tenants and trespassers in their own country. Let us preserve and bequeath to them what is rightfully theirs, free from all foreign liens and encumbrances".7 Now, a word on preference. In my view "preference to qualified Filipinos", to be meaningful, must refer not only to things that are peripheral, collateral, or tangential. It must touch and affect the very "heart of the existing order." In the field of public bidding in the acquisition of things that pertain to the national patrimony, preference to qualified Filipinos must allow a qualified Filipino to match or equal the higher bid of a non-Filipino; the preference shall not operate only when the bids of the qualified Filipino and the non-Filipino are equal in which case,

the award should undisputedly be made to the qualified Filipino. The Constitutional preference should give the qualified Filipino an opportunity to match or equal the higher bid of the non-Filipino bidder if the preference of the qualified Filipino bidder is to be significant at all. It is true that in this present age of globalization of attitude towards foreign investments in our country, stress is on the elimination of barriers to foreign trade and investment in the country. While government agencies, including the courts should re-condition their thinking to such a trend, and make it easy and even attractive for foreign investors to come to our shores, yet we should not preclude ourselves from reserving to us Filipinos certain areas where our national identity, culture and heritage are involved. In the hotel industry, for instance, foreign investors have established themselves creditably, such as in the Shangri-La, the Nikko, the Peninsula, and Mandarin Hotels. This should not stop us from retaining 51% of the capital stock of the Manila Hotel Corporation in the hands of Filipinos. This would be in keeping with the intent of the Filipino people to preserve our national patrimony, including our historical and cultural heritage in the hands of Filipinos. VITUG, J.,  concurring: I agree with Mr. Justice Josue N. Bellosillo on his clear-cut statements, shared by Mr. Justice Reynato S. Puno in a well written separate (dissenting) opinion, that: First, the provision in our fundamental law which provides that "(I)n the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos"1 is self-executory. The provision verily does not need, although it can obviously be amplified or regulated by, an enabling law or a set of rules. Second, the term "patrimony" does not merely refer to the country's natural resources but also to its cultural heritage. A "historical landmark," to use the words of Mr. Justice Justo P. Torres, Jr., Manila Hotel has now indeed become part of Philippine heritage. Third, the act of the Government Service Insurance System ("GSIS"), a government entity which derives its authority from the State, in selling 51% of its share in MHC should be considered an act of the State subject to the Constitutional mandate. On the pivotal issue of the degree of "preference to qualified Filipinos," I find it somewhat difficult to take the same path traversed by the forceful reasoning of Justice Puno. In the particular case before us, the only meaningful preference, it seems, would really be to allow the qualified Filipino to match the foreign bid for, as a particular matter, I cannot see any bid that literally calls for millions of dollars to be at par (to the last cent) with another. The magnitude of the magnitude of the bids is such that it becomes hardly possible for the competing bids to stand exactly "equal" which alone, under the dissenting view, could trigger the right of preference.

It is most unfortunate that Renong Berhad has not been spared this great disappointment, a letdown that it did not deserve, by a simple and timely advise of the proper rules of bidding along with the peculiar constitutional implications of the proposed transaction. It is also regrettable that the Court at time is seen, to instead, be the refuge for bureaucratic inadequate which create the perception that it even takes on non-justiciable controversies. All told, I am constrained to vote for granting the petition. MENDOZA, J.,  concurring in the judgment: I take the view that in the context of the present controversy the only way to enforce the constitutional mandate that "[i]n the grant of rights, privileges and concessions covering the national patrimony the State shall give preference to qualified Filipinos"1 is to allow petitioner Philippine corporation to equal the bid of the Malaysian firm Renong Berhad for the purchase of the controlling shares of stocks in the Manila Hotel Corporation. Indeed, it is the only way a qualified Filipino of Philippine corporation can be given preference in the enjoyment of a right, privilege or concession given by the State, by favoring it over a foreign national corporation. Under the rules on public bidding of the Government Service and Insurance System, if petitioner and the Malaysian firm had offered the same price per share, "priority [would be given] to the bidder seeking the larger ownership interest in MHC,"2 so that petitioner bid for more shares, it would be preferred to the Malaysian corporation for that reason and not because it is a Philippine corporation. Consequently, it is only in cases like the present one, where an alien corporation is the highest bidder, that preferential treatment of the Philippine corporation is mandated not by declaring it winner but by allowing it "to match the highest bid in terms of price per share" before it is awarded the shares of stocks.3 That, to me, is what "preference to qualified Filipinos" means in the context of this case — by favoring Filipinos whenever they are at a disadvantage vis-a-vis foreigners. This was the meaning given in Co Chiong v.  Cuaderno4 to a 1947 statute giving "preference to Filipino citizens in the lease of public market stalls."5 This Court upheld the cancellation of existing leases covering market stalls occupied by persons who were not Filipinos and the award thereafter of the stalls to qualified Filipino vendors as ordered by the Department of Finance. Similarly, in Vda. de Salgado v. De la Fuente,6 this Court sustained the validity of a municipal ordinance passed pursuant to the statute (R.A. No. 37), terminating existing leases of public market stalls and granting preference to Filipino citizens in the issuance of new licenses for the occupancy of the stalls. In Chua Lao v. Raymundo,7 the preference granted under the statute was held to apply to cases in which Filipino vendors sought the same stalls occupied by alien vendors in the public markets even if there were available other stalls as good as those occupied by aliens. "The law, apparently, is applicable whenever there is a conflict of interest between Filipino

applicants and aliens for lease of stalls in public markets, in which situation the right to preference immediately arises."8 Our legislation on the matter thus antedated by a quarter of a century efforts began only in the 1970s in America to realize the promise of equality, through affirmative action and reverse discrimination programs designed to remedy past discrimination against colored people in such areas as employment, contracting and licensing.9 Indeed, in vital areas of our national economy, there are situations in which the only way to place Filipinos in control of the national economy as contemplated in the Constitution 10 is to give them preferential treatment where they can at least stand on equal footing with aliens. There need be no fear that thus preferring Filipinos would either invite foreign retaliation or deprive the country of the benefit of foreign capital or know-how. We are dealing here not with common trades of common means of livelihood which are open to aliens in our midst, 11 but with the sale of government property, which is like the grant of government largess of benefits and concessions covering the national economy" and therefore no one should begrudge us if we give preferential treatment to our citizens. That at any rate is the command of the Constitution. For the Manila Hotel is a business owned by the Government. It is being privatized. Privatization should result in the relinquishment of the business in favor of private individuals and groups who are Filipino citizens, not in favor of aliens. Nor should there be any doubt that by awarding the shares of stocks to petitioner we would be trading competence and capability for nationalism. Both petitioner and the Malaysian firm are qualified, having hurdled the prequalification process. 12 It is only the result of the public bidding that is sought to be modified by enabling petitioner to up its bid to equal the highest bid. Nor, finally, is there any basis for the suggestion that to allow a Filipino bidder to match the highest bid of an alien could encourage speculation, since all that a Filipino entity would then do would be not to make a bid or make only a token one and, after it is known that a foreign bidder has submitted the highest bid, make an offer matching that of the foreign firm. This is not possible under the rules on public bidding of the GSIS. Under these rules there is a minimum bid required (P36.87 per share for a range of 9 to 15 million shares). 13 Bids below the minimum will not be considered. On the other hand, if the Filipino entity, after passing the prequalification process, does not submit a bid, he will not be allowed to match the highest bid of the foreign firm because this is a privilege allowed only to those who have "validly submitted bids." 14 The suggestion is, to say the least, fanciful and has no basis in fact. For the foregoing reasons, I vote to grant the petition. TORRES, JR., J.,  separate opinion: Constancy in law is not an attribute of a judicious mind. I say this as we are not confronted in the case at bar with legal and constitutional issues — and yet I am

driven so to speak on the side of history. The reason perhaps is due to the belief that in the words of Justice Oliver Wendell Holmes, Jr., a "page of history is worth a volume of logic." I will, however, attempt to share my thoughts on whether the Manila Hotel has a historical and cultural aspect within the meaning of the constitution and thus, forming part of the "patrimony of the nation". Section 10, Article XII of the 1987 Constitution provides: xxx xxx xxx In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos. The State shall regulate and exercise authority over foreign investments within its national goals and priorities. The foregoing provisions should be read in conjunction with Article II of the same Constitution pertaining to "Declaration of Principles and State Policies" which ordain — The State shall develop a self-reliant and independent national economy effectively by Filipinos. (Sec. 19). Interestingly, the matter of giving preference to "qualified Filipinos" was one of the highlights in the 1987 Constitution Commission proceedings thus: x x x           x x x          x x x MR. NOLLEDO. The Amendment will read: "IN THE GRANT OF RIGHTS, PRIVILEGES AND CONCESSIONS COVERING THE NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS". And the word "Filipinos" here, as intended by the proponents, will include not only individual Filipinos but also Filipino-Controlled entities fully controlled by Filipinos (Vol. III, Records of the Constitutional Commission, p. 608). MR. MONSOD. We also wanted to add, as Commissioner Villegas said, this committee and this body already approved what is known as the Filipino First policy which was suggested by Commissioner de Castro. So that it is now in our Constitution (Vol. IV, Records of the Constitutional Commission, p. 225). Commissioner Jose Nolledo explaining the provision adverted to above, said: MR. NOLLEDO. In the grant of rights, privileges and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos. MR. FOZ. In connection with that amendment, if a foreign enterprise is qualified and the Filipinos enterprise is also qualified, will the Filipino enterprise still be given a preference? MR. NOLLEDO. Obviously. MR. FOZ. If the foreigner is more qualified in some aspects than the Filipino enterprise, will the Filipino still be preferred:?

MR. NOLLEDO. The answer is "yes". (Vol. III, p. 616, Records of the Constitutional Commission). The nationalistic provisions of the 1987 Constitution reflect the history and spirit of the Malolos Constitution of 1898, the 1935 Constitution and the 1973 Constitutions. That we have no reneged on this nationalist policy is articulated in one of the earliest case, this Court said — The nationalistic tendency is manifested in various provisions of the Constitution. . . . It cannot therefore be said that a law imbued with the same purpose and spirit underlying many of the provisions of the Constitution is unreasonable, invalid or unconstitutional (Ichong, et al. vs. Hernandez, et al., 101 Phil. 1155). I subscribe to the view that history, culture, heritage, and traditions are not legislated and is the product of events, customs, usages and practices. It is actually a product of growth and acceptance by the collective mores of a race. It is the spirit and soul of a people. The Manila Hotel is part of our history, culture and heritage. Every inch of the Manila Hotel is witness to historic events (too numerous to mention) which shaped our history for almost 84 years. As I intimated earlier, it is not my position in this opinion, to examine the single instances of the legal largese which have given rise to this controversy. As I believe that has been exhaustively discussed in the ponencia. Suffice it to say at this point that the history of the Manila Hotel should not be placed in the auction block of a purely business transaction, where profits subverts the cherished historical values of our people. As a historical landmark in this "Pearl of the Orient Seas", it has its enviable tradition which, in the words of the philosopher Salvador de Madarriaga tradition is "more of a river than a stone, it keeps flowing, and one must view the flowing , and one must view the flow of both directions. If you look towards the hill from which the river flows, you see tradition in the form of forceful currents that push the river or people towards the future, and if you look the other way, you progress." Indeed, tradition and progress are the same, for progress depends on the kind of tradition. Let us not jettison the tradition of the Manila Hotel and thereby repeat our colonial history. I grant, of course the men of the law can see the same subject in different lights. I remember, however, a Spanish proverb which says — "He is always right who suspects that he makes mistakes". On this note, I say that if I have to make a mistake, I would rather err upholding the belief that the Filipino be first under his Constitution and in his own land. I vote GRANT the petition.   PUNO, J.,  dissenting:

This is a. petition for prohibition and mandamus filed by the Manila Prince Hotel Corporation, a domestic corporation, to stop the Government Service Insurance System (GSIS) from selling the controlling shares of the Manila Hotel Corporation to a foreign corporation. Allegedly, the sale violates the second paragraph of section 10, Article XII of the Constitution. Respondent GSIS is a government-owned and controlled corporation. It is the sole owner of the Manila Hotel which it operates through its subsidiary, the Manila Hotel Corporation. Manila Hotel was included in the privatization program of the government. In 1995, GSIS proposed to sell to interested buyers 30% to 51% of its shares, ranging from 9,000,000 to 15,300,000 shares, in the Manila Hotel Corporation. After the absence of bids at the first public bidding, the block of shares offered for sale was increased from a maximum of 30% to 51%. Also, the winning bidder, or the eventual "strategic partner" of the GSIS was required to "provide management expertise and/or an international marketing/reservation system, and financial support to strengthen the profitability and performance of the Manila Hotel"1 The proposal was approved by respondent Committee on Privatization. In July 1995, a conference was held where prequalification documents and the bidding rules were furnished interested parties. Petitioner Manila Prince Hotel, a domestic corporation, and Renong Berhad, Malaysian firm with ITT Sheraton as operator, prequalified.2 The bidding rules and procedures entitled "Guidelines and Procedures: Second Prequalification and Public Bidding of the MHC Privatization" provide: I INTRODUCTION AND HIGHLIGHTS DETERMINING THE WINNING BIDDER/STRATEGIC PARTNER The party that accomplishes the steps set forth below will be declared the Winning Bidder/Strategic Partner and will be awarded the Block of Shares: First — Pass the prequalification process; Second — Submit the highest bid on a price per share basis for the Block of Shares; Third — Negotiate and execute the necessary contracts with GSIS/MHC not later than October 23, 1995; xxx xxx xxx IV GUIDELINES FOR PREQUALIFICATION A. PARTIES WHO MAP APPLY FOR PREQUALIFICATION The Winning Bidder/Strategic Partner will be expected to provide management expertise and/or an international marketing reservation system, and financial support to strengthen the profitability and performance of The Manila Hotel. In this context, the GSIS is inviting to the prequalification process any local and/or foreign corporation, consortium/joint venture or juridical entity with at least one of the following qualifications: a. Proven management .expertise in the hotel industry; or

b. Significant equity ownership (i.e. board representation) in another hotel company; or c. Overall management and marketing expertise to successfully operate the Manila Hotel. Parties interested in bidding for MHC should be able to provide access to the requisite management expertise and/or international marketing/reservation system for The Manila Hotel. xxx xxx xxx D. PREQUALIFICATION DOCUMENTS xxx xxx xxx E. APPLICATION PROCEDURE 1. DOCUMENTS AVAILABLE AT THE REGISTRATION OFFICE The prequalification documents can be secured at the Registration Office between 9:00 AM to 4:00 PM during working days within the period specified in Section III. Each set of documents consists of the following: a. Guidelines and Procedures: Second Prequalification and Public Bidding of the MHC Privatization b. Confidential Information Memorandum: The Manila Hotel Corporation c. Letter of Invitation. to the Prequalification and Bidding Conference xxx xxx xxx 4. PREQUALIFICATION AND BIDDING CONFERENCE A prequalification and bidding conference will be held at The Manila Hotel on the date specified in Section III to allow the Applicant to seek clarifications and further information regarding the guidelines and procedures. Only those who purchased the prequalification documents will be allowed in this conference. Attendance to this conference is strongly advised, although the Applicant will not be penalized if it does not attend. 5. SUBMISSION OF PREQUALIFICATION DOCUMENTS The applicant should submit 5 sets of the prequalification documents (1 original set plus 4 copies) at the Registration Office between 9:00 AM to 4:00 PM during working days within the period specified in Section III. F. PREQUALIFICATION PROCESS 1. The Applicant will be evaluated by the PBAC with the assistance of the TEC based on the Information Package and other information available to the PBAC. 2. If the Applicant is a Consortium/Joint Venture, the evaluation will consider the overall qualifications of the group, taking into account the contribution of each member to the venture. 3. The decision of the PBAC with respect to the results of the PBAC evaluation will be final. 4. The Applicant shall be evaluated according to the criteria set forth below: a. Business management expertise, track record, and experience

b. Financial capability. c. Feasibility and acceptability of the proposed strategic plan for the Manila Hotel 5. The PBAC will shortlist such number of Applicants as it may deem appropriate. 6. The parties that prequalified in the first MHC public bidding — ITT Sheraton, Marriot International Inc., Renaissance Hotels International Inc., consortium of RCBC Capital/Ritz Carlton — may participate in the Public Bidding without having to undergo the prequalification process again. G. SHORTLIST OF QUALIFIED BIDDERS 1. A notice of prequalification results containing the shortlist of Qualified Bidders will be posted at the Registration Office at the date specified in Section III. 2. In the case of a Consortium/Joint Venture, the withdrawal by member whose qualification was a material consideration for being included in the shortlist is ground for disqualification of the Applicant. V. GUIDELINES FOR THE PUBLIC BIDDING A. PARTIES WHO MAY PARTICIPATE IN THE PUBLIC BIDDING All parties in the shortlist of Qualified Bidders will be eligible to participate in the Public Bidding. B. BLOCK OF SHARES A range of Nine Million (9,000,000) to Fifteen Million Three Hundred Thousand (15,300,000) shares of stock representing Thirty Percent to Fifty-One Percent (30%51%) of the issued and outstanding shares of MHC, will be offered in the Public Bidding by the GSIS. The Qualified Bidders will have the Option of determining the number of shares within the range to bid for. The range is intended to attract bidders with different preferences and objectives for the operation and management of The Manila Hotel. C. MINIMUM BID REQUIRED ON A PRICE PER SHARE BASIS 1. Bids will be evaluated on a  price per share basis. The minimum bid required on a price per share basis for the Block of Shares is Thirty-Six Pesos and Sixty-Seven Centavos (P36.67). 2. Bids should be in the Philippine currency payable to the GSIS. 3. Bids submitted with an equivalent price per share below the minimum required will not considered. D. TRANSFER COSTS x x x           x x x          x x x E. OFFICIAL BID FORM 1. Bids must be contained in the prescribed Official Bid Form, a copy of which is attached as Annex IV. The Official Bid Form must be properly accomplished in all details; improper accomplishment may be a sufficient basis for disqualification. 2. During the Public Bidding, the Qualified Bidder will submit the Official Bid Form, which will indicate the offered purchase price, in a sealed envelope marked "OFFICIAL BID."

F. SUPPORTING DOCUMENTS During the Public Bidding, the following documents should be submitted along with the bid in a separate envelop marked "SUPPORTING DOCUMENTS": 1. WRITTEN AUTHORITY TO BID (UNDER OATH). If the Qualified Bidder is a corporation, the representative of the Qualified Bidder should submit a Board resolution which adequately authorizes such representative to bid for and in behalf of the corporation with full authority to perform such acts necessary or requisite to bind the Qualified Bidder. If the Qualified Bidder is a Consortium/Joint Venture, each member of the Consortium/Joint venture should submit a Board resolution authorizing one of its members and such member's representative to make the bid on behalf of the group with full authority to perform such acts necessary or requisite to bind the Qualified Bidder. 2. BID SECURITY a. The Qualified Bidder should deposit Thirty-Three Million Pesos (P33,000,00), in Philippine currency as Bid Security in the form of: i. Manager's check or unconditional demand draft payable to the "Government Service Insurance System" and issued by a reputable banking institution duly licensed to do business in the Philippines and acceptable to GSIS; or ii. Standby-by letter of credit issued by a reputable banking institution acceptable to the GSIS. b. The GSIS will reject a bid if: i. The bid does not have Bid Security; or ii. The Bid Security accompanying the bid is for less than the required amount. c. If the Bid Security is in the form of a manager's check or unconditional demand draft, the interest earned on the Bid Security will be for the account of GSIS. d. If the Qualified Bidder becomes the winning Bidder/Strategic Partner, the Bid Security will be applied as the downpayment on the Qualified Bidder's offered purchase price. e. The Bid Security of the Qualified Bidder will be returned immediately after the Public Bidding if the Qualified Bidder is not declared the Highest Bidder. f. The Bid Security will be returned by October 23, 1995 if the Highest Bidder is unable to negotiate and execute with GSIS/MHC the Management Contract, International Marketing/Reservation System Contract or other types of contract specified by the Highest Bidder in its strategic plan for The Manila Hotel. g. The Bid Security of the Highest Bidder will be forfeited in favor of GSIS if the Highest Bidder, after negotiating and executing the Management Contract, International Marketing/Reservation System Contract specified by the Highest Bidder or other types of contract in its strategic plan for The Manila Hotel, fails or refuses to:

i. Execute the Stock Purchase and Sale Agreement with GSIS not later than October 23, 1995; or ii. Pay the full amount of the offered purchase price not later than October 23, 1995; or iii. Consummate the sale of the Block of Shares for any other reason. G. SUBMISSION OF BIDS 1. The Public Bidding will be held on September 7, 1995 at the following location: New GSIS Headquarters Building Financial Center, Reclamation Area Roxas Boulevard, Pasay City, Metro Manila. 2. The Secretariat of the PBAC will be stationed at the Public Bidding to accept any and all bids and supporting requirements. Representatives from the Commission on Audit and COP will be invited to witness the proceedings. 3. The Qualified Bidder should submit its bid using the Official Bid Form. The accomplished Official Bid Form should be submitted in a sealed envelope marked "OFFICIAL BID." 4. The Qualified Bidder should submit the following documents in another sealed envelope marked "SUPPORTING BID DOCUMENTS" a. Written Authority Bid b. Bid Security 5. The two sealed envelopes marked "OFFICIAL BID" and "SUPPORTING BID DOCUMENTS" must be submitted simultaneously to the Secretariat between 9:00 AM and 2:00 PM, Philippine Standard Time, on the date of the Public Bidding. No bid shall be accepted after the closing time. Opened or tampered bids shall not be accepted. 6. The Secretariat will log and record the actual time of submission of the two sealed envelopes. The actual time of submission will also be indicated by the Secretariat on the face of the two envelopes. 7. After Step No. 6, the two sealed envelopes will be dropped in the corresponding bid boxes provided for the purpose. These boxes will be in full view of the invited public. H. OPENING AND READING OF BIDS 1. After the closing time of 2:00 PM on the date of the Public Bidding, the PBAC will open all sealed envelopes marked "SUPPORTING BID DOCUMENTS" for screening, evaluation and acceptance. Those who submitted incomplete/insufficient documents or document/s which is/are not substantially in the form required by PBAC will be disqualified. The envelope containing their Official Bid Form will be immediately returned to the disqualified bidders. 2. The sealed envelopes marked "OFFICIAL BID" will be opened at 3:00 PM. The name of the bidder and the amount of its bid price will be read publicly as the envelopes are opened.

3. Immediately following the reading of the bids, the PBAC will formally announce the highest bid and the Highest Bidder. 4. The highest bid will be, determined on a price per share basis. In the event of a tie wherein two or more bids have the same equivalent price per share, priority will be given to the bidder seeking the larger ownership interest in MHC. 5. The Public Bidding will be declared a failed bidding in case: a. No single bid is submitted within the prescribed period; or b. There is only one (1) bid that is submitted and acceptable to the PBAC. I. EXECUTION OF THE NECESSARY CONTRACTS WITH GSIS/MHC 1. The Highest Bidder must comply with the conditions set forth below by October 23, 1995 or the Highest Bidder will lose the right to purchase the Block of Shares and GSIS will instead offer the Block of Shares to the other Qualified Bidders: a. The Highest Bidder must negotiate and execute with GSIS/MHC the Management Contract, International Marketing Reservation System Contract or other type of contract specified by the Highest Bidder in its strategic plan for The Manila Hotel. If the Highest Bidder is intending to provide only financial support to The Manila Hotel, a separate institution may enter into the aforementioned contract/s with GSIS/MHC. b. The Highest Bidder must execute the Stock Purchase and Sale Agreement with GSIS, a copy of which will be distributed to each of the Qualified Bidder after the prequalification process is completed. 2. In the event that the Highest Bidder chooses a Management Contract for The Manila Hotel, the maximum levels for the management fee structure that GSIS/MHC are prepared to accept in the Management Contract are as follows: a. Basic management fee: Maximum of 2.5% of gross revenues.(1) b. Incentive fee: Maximum of 8.0% of gross operating profit(1) after deducting undistributed overhead expenses and the basic management fee. c. Fixed component of the international marketing/reservation system fee: Maximum of 2.0% of gross room revenues.(1) The Applicant should indicate in its Information Package if it is wishes to charge this fee. Note (1): As defined in the uniform system of account for hotels. The GSIS/MHC have indicated above the acceptable parameters for the hotel management fees to facilitate the negotiations with the Highest Bidder for the Management Contract after the Public Bidding. A Qualified Bidder envisioning a Management Contract for The Manila Hotel should determine whether or not the management fee structure above is acceptable before submitting their prequalification documents to GSIS. J. BLOCK SALE TO THE OTHER QUALIFIED BIDDERS 1. If for any reason, the Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to the other Qualified Bidders that have validly submitted bids

provided that these Qualified are willing to match the highest bid in terms of price per share. 2. The order of priority among the interested Qualified Bidders will be in accordance wit the equivalent price per share of their respective bids in their public Bidding, i.e., first and second priority will be given to the Qualified Bidders that submitted the second and third highest bids on the price per share basis, respectively, and so on. K. DECLARATION OF THE WINNING BIDDER/STRATEGIC PARTNER The Highest Bidder will be declared the Winning Bidder/Strategic Partner after the following conditions are met: a. Execution of the necessary contract with GSIS/MHC not later than October 23, 1995; and b. Requisite approvals from the GSIS/MHC and COP/OGCC are obtained. I. FULL PAYMENT FOR THE BLOCK OF SHARES 1. Upon execution of the necessary contracts with GSIS/MHC, the Winning Bidder/Strategic Partner must fully pay, not later than October 23, 1995, the offered purchase price for the Block of Shares after deducting the Bid Security applied as downpayment. 2. All payments should be made in the form of a Manager's Check or unconditional Demand Draft, payable to the "Government Service Insurance System," issued by a reputable banking institution licensed to do business in the Philippines and acceptable to GSIS. M. GENERAL CONDITIONS 1. The GSIS unconditionally reserves the right to reject any or all applications, waive any formality therein, or accept such application as maybe considered most advantageous to the GSIS. The GSIS similarly reserves the right to require the submission of any additional information from the Applicant as the PBAC may deem necessary. 2. The GSIS further reserves the right to call off the Public Bidding prior to acceptance of the bids and call for a new public bidding under amended rules, and without any liability whatsoever to any or all the Qualified Bidders, except the obligation to return the Bid Security. 3. The GSIS reserves the right to reset the date of the prequalification/bidding conference, the deadline for the submission of the prequalification documents, the date of the Public Bidding or other pertinent activities at least three (3) calendar days prior to the respective deadlines/target dates. 4. The GSIS sells only whatever rights, interest and participation it has on the Block of Shares. 5. All documents and materials submitted by the Qualified Bidders, except the Bid Security, may be returned upon request.

6. The decision of the PBAC/GSIS on the results of the Public Bidding is final. The Qualified Bidders, by participating in the Public Bidding, are deemed to have agreed to accept and abide by these results. 7. The GSIS will be held free and harmless form any liability, suit or allegation arising out of the Public Bidding by the Qualified Bidders who have participated in the Public Bidding.3 The second public bidding was held on September 18, 1995. Petitioner bidded P41.00 per share for 15,300,000 shares and Renong Berhad bidded P44.00 per share also for 15,300,000 shares. The GSIS declared Renong Berhad the highest bidder and immediately returned petitioner's bid security. On September 28, 1995, ten days after the bidding, petitioner wrote to GSIS offering to match the bid price of Renong Berhad. It requested that the award be made to itself citing the second paragraph of Section 10, Article XII of the Constitution. It sent a manager's check for thirty-three million pesos (P33,000,000.00) as bid security. Respondent GSIS, then in the process of negotiating with Renong Berhad the terms and conditions of the contract and technical agreements in the operation of the hotel, refused to entertain petitioner's request. Hence, petitioner filed the present petition. We issued a temporary restraining order on October 18, 1995. Petitioner anchors its plea on the second paragraph of Article XII, Section 10 of the Constitution4 on the "National Economy and Patrimony" which provides: xxx xxx xxx In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos. xxx xxx xxx The vital issues can be summed up as follows: (1) Whether section 10, paragraph 2 of Article XII of the Constitution is a selfexecuting provision and does not need implementing legislation to carry it into effect; (2) Assuming section 10 paragraph 2 of Article XII is self-executing whether the controlling shares of the Manila Hotel Corporation form part of our patrimony as a nation; (3) Whether GSIS is included in the term "State," hence, mandated to implement section 10, paragraph 2 of Article XII of the Constitution; (4) Assuming GSIS is part of the State, whether it failed to give preference to petitioner, a qualified Filipino corporation, over and above Renong Berhad, a foreign corporation, in the sale of the controlling shares of the Manila Hotel Corporation; (5) Whether petitioner is estopped from questioning the sale of the shares to Renong Berhad, a foreign corporation.

Anent the first issue, it is now familiar learning that a Constitution provides the guiding policies and principles upon which is built the substantial foundation and general framework of the law and government.5 As a rule, its provisions are deemed self-executing and can be enforced without further legislative action.6 Some of its provisions, however, can be implemented only through appropriate laws enacted by the Legislature, hence not self-executing. To determine whether a particular provision of a Constitution is self-executing is a hard row to hoe. The key lies on the intent of the framers of the fundamental law oftentimes submerged in its language. A searching inquiry should be made to find out if the provision is intended as a present enactment, complete in itself as a definitive law, or if it needs future legislation for completion and enforcement.7 The inquiry demands a micro-analysis of the text and the context of the provision in question.8 Courts as a rule consider the provisions of the Constitution as self-executing,9 rather than as requiring future legislation for their enforcement. 10 The reason is not difficult to discern. For if they are not treated as self-executing, the mandate of the fundamental law ratified by the sovereign people can be easily ignored and nullified by Congress. 11 Suffused with wisdom of the ages is the unyielding rule that legislative actions may give breath to constitutional rights but congressional in action should not suffocate them. 12 Thus, we have treated as self-executing the provisions in the Bill of Rights on arrests, searches and seizures, 13 the rights of a person under custodial investigation, 14 the rights of an accused, 15 and the privilege against selfincrimination, 16 It is recognize a that legislation is unnecessary to enable courts to effectuate constitutional provisions guaranteeing the fundamental rights of life, liberty and the protection of property. 17 The same treatment is accorded to constitutional provisions forbidding the taking or damaging of property for public use without just compensation.18 Contrariwise, case law lays down the rule that a constitutional provision is not selfexecuting where it merely announces a policy and its language empowers the Legislature to prescribe the means by which the policy shall be carried into effect. 19 Accordingly, we have held that the provisions in Article II of our Constitution entitled "Declaration of Principles and State Policies" should generally be construed as mere statements of principles of the State. 20 We have also ruled that some provisions of Article XIII on "Social Justice and Human Rights," 21 and Article XIV on "Education Science and Technology, Arts, Culture end Sports" 22 cannot be the basis of judicially enforceable rights. Their enforcement is addressed to the discretion of Congress though they provide the framework for legislation 23 to effectuate their policy content. 24 Guided by this map of settled jurisprudence, we now consider whether Section 10, Article XII of the 1987 Constitution is self-executing or not. It reads:

Sec. 10. The Congress shall, upon recommendation of the economic and planning agency, when the national interest dictates, reserve to citizens of the Philippines or to corporations or associations at least sixty  per centum of whose capital is owned by such citizens, or such higher percentage as Congress may prescribe, certain areas of investments. The Congress shall enact measures that will encourage the formation and operation of enterprises whose capital is wholly owned by Filipinos. In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos. The State shall regulate and exercise authority over foreign investments within its national jurisdiction and in accordance with its national goals and priorities. The first paragraph directs Congress to reserve certain areas of investments in the country 25 to Filipino citizens or to corporations sixty per cent 26 of whose capital stock is owned by Filipinos. It further commands Congress to enact laws that will encourage the formation and operation of one hundred percent Filipino-owned enterprises. In checkered contrast, the second paragraph orders the entire State to give preference to qualified Filipinos in the grant of rights and privileges covering the national economy and patrimony. The third paragraph also directs the State to regulate foreign investments in line with our national goals and well-set priorities. The first paragraph of Section 10 is not self-executing. By its express text, there is a categorical command for Congress to enact laws restricting foreign ownership in certain areas of investments in the country and to encourage the formation and operation of wholly-owned Filipino enterprises. The right granted by the provision is clearly still in esse. Congress has to breathe life to the right by means of legislation. Parenthetically, this paragraph was plucked from section 3, Article XIV of the 1973 Constitution. 27 The provision in the 1973 Constitution affirmed our ruling in the landmark case of Lao Ichong v. Hernandez, 28 where we upheld the discretionary authority of Congress to Filipinize certain areas of investments. 29 By reenacting the 1973 provision, the first paragraph of section 10 affirmed the power of Congress to nationalize certain areas of investments in favor of Filipinos. The second and third paragraphs of Section 10 are different. They are directed to the State and not to Congress alone which is but one of the three great branches of our government. Their coverage is also broader for they cover "the national economy and patrimony" and "foreign investments within [the] national jurisdiction" and not merely "certain areas of investments." Beyond debate, they cannot be read as granting Congress the exclusive power to implement by law the policy of giving preference to qualified Filipinos in the conferral of rights and privileges covering our national economy and patrimony. Their language does not suggest that any of the State agency or instrumentality has the privilege to hedge or to refuse its implementation for any reason whatsoever. Their duty to implement is

unconditional and it is now. The second and the third paragraphs of Section 10, Article XII are thus self-executing. This submission is strengthened by Article II of the Constitution entitled "Declaration of Principles and State Policies." Its Section 19 provides that "[T]he State shall develop a self-reliant and independent national economy effectively controlled by Filipinos." It engrafts the all-important Filipino First policy in our fundamental law and by the use of the mandatory word "shall," directs its enforcement by the whole State without any pause or a half- pause in time. The second issue is whether the sale of a majority of the stocks of the Manila Hotel Corporation involves the disposition of part of our national patrimony. The records of the Constitutional Commission show that the Commissioners entertained the same view as to its meaning. According to Commissioner Nolledo, "patrimony" refers not only to our rich natural resources but also to the cultural heritage of our race. 30 By this yardstick, the sale of Manila Hotel falls within the coverage of the constitutional provision giving preferential treatment to qualified Filipinos in the grant of rights involving our national patrimony. The unique value of the Manila Hotel to our history and culture cannot be viewed with a myopic eye. The value of the hotel goes beyond pesos and centavos. As chronicled by Beth Day Romulo, 31 the hotel first opened on July 4, 1912 as a first-class hotel built by the American Insular Government for Americans living in, or passing through, Manila while traveling to the Orient. Indigenous materials and Filipino craftsmanship were utilized in its construction, For sometime, it was exclusively used by American and Caucasian travelers and served as the "official guesthouse" of the American Insular Government for visiting foreign dignitaries. Filipinos began coming to the Hotel as guests during the Commonwealth period. When the Japanese occupied Manila, it served as military headquarters and lodging for the highest-ranking officers from Tokyo. It was at the Hotel and the Intramuros that the Japanese made their last stand during the Liberation of Manila. After the war, the Hotel again served foreign guests and Filipinos alike. Presidents and kings, premiers and potentates, as well as glamorous international film and sports celebrities were housed in the Hotel. It was also the situs of international conventions and conferences. In the local scene, it was the venue of historic meetings, parties and conventions of political parties. The Hotel has reaped and continues reaping numerous recognitions and awards from international hotel and travel award-giving bodies, a fitting acknowledgment of Filipino talent and ingenuity. These are judicially cognizable facts which cannot be bent by a biased mind. The Hotel may not, as yet, have been declared a national cultural treasure pursuant to Republic Act No. 4846 but that does not exclude it from our national patrimony. Republic Act No. 4846, "The Cultural Properties Preservation and Protection Act," merely provides a procedure whereby a particular cultural property may be classified a "national cultural treasure" or an "important cultural

property. 32 Approved on June 18, 1966 and amended by P.D. 374 in 1974, the law is limited in its reach and cannot be read as the exclusive law implementing section 10, Article XII of the 1987 Constitution. To be sure, the law does not equate cultural treasure and cultural property as synonymous to the phrase "patrimony of the nation." The third issue is whether the constitutional command to the State includes the respondent GSIS. A look at its charter will reveal that GSIS is a government-owned and controlled corporation that administers funds that come from the monthly contributions of government employees and the government. 33 The funds are held in trust for a distinct purpose which cannot be disposed of indifferently. 34 They are to be used to finance the retirement, disability and life insurance benefits of the employees and the administrative and operational expenses of the GSIS, 35 Excess funds, however, are allowed to be invested in business and other ventures for the benefit of the employees.36 It is thus contended that the GSIS investment in the Manila Hotel Corporation is a simple business venture, hence, an act beyond the contemplation of section 10, paragraph 2 of Article XII of the Constitution. The submission is unimpressive. The GSIS is not a pure private corporation. It is essentially a public corporation created by Congress and granted an original charter to serve a public purpose. It is subject to the jurisdictions of the Civil Service Commission 37 and the Commission on Audit. 38 As state-owned and controlled corporation, it is skin-bound to adhere to the policies spelled out in the general welfare of the people. One of these policies is the Filipino First policy which the people elevated as a constitutional command. The fourth issue demands that we look at the content of phrase "qualified Filipinos" and their "preferential right." The Constitution desisted from defining their contents. This is as it ought to be for a Constitution only lays down flexible policies and principles which can bent to meet today's manifest needs and tomorrow's unmanifested demands. Only a constitution strung with elasticity can grow as a living constitution. Thus, during the deliberations in the Constitutional Commission, Commissioner Nolledo to define the phrase brushed aside a suggestion to define the phrase "qualified Filipinos." He explained that present and prospective "laws" will take care of the problem of its interpretation, viz: x x x           x x x          x x x THE PRESIDENT. What is the suggestion of Commissioner Rodrigo? Is it to remove the word "QUALIFIED?" MR. RODRIGO. No, no, but say definitely "TO QUALIFIED FILIPINOS" as against whom? As against aliens over aliens? MR. NOLLEDO. Madam President, I think that is understood. We use the word "QUALIFIED" because the existing laws or the prospective laws will always lay down

conditions under which business map be done, for example, qualifications on capital, qualifications on the setting up of other financial structures, et cetera. MR. RODRIGO. It is just a matter of style. MR. NOLLEDO Yes. MR. RODRIGO. If we say, "PREFERENCE TO QUALIFIED FILIPINOS," it can be understood as giving preference to qualified Filipinos as against Filipinos who are not qualified. MR. NOLLEDO. Madam President, that was the intention of the proponents. The committee has accepted the amendment. x x x           x x x          x x x As previously discussed, the constitutional command to enforce the Filipino First policy is addressed to the State and not to Congress alone. Hence, the word "laws" should not be understood as limited to legislations but all state actions which include applicable rules and regulations adopted by agencies and instrumentalities of the State in the exercise of their rule-making power. In the case at bar, the bidding rules and regulations set forth the standards to measure the qualifications of bidders Filipinos and foreigners alike. It is not seriously disputed that petitioner qualified to bid as did Renong Berhad. 39 Thus, we come to the critical issue of the degree of preference which GSIS should have accorded petitioner, a qualified Filipino, over Renong Berhad, a foreigner, in the purchase of the controlling shares of the Manila Hotel. Petitioner claims that after losing the bid, this right of preference gives it a second chance to match the highest bid of Renong Berhad. With due respect, I cannot sustain petitioner's submission. I prescind from the premise that the second paragraph of section 10, Article XII of the Constitution is pro-Pilipino but not anti-alien. It is pro-Filipino for it gives preference to Filipinos. It is not, however, anti-alien per se for it does not absolutely bar aliens in the grant of rights, privileges and concessions covering the national economy and patrimony. Indeed, in the absence of qualified Filipinos, the State is not prohibited from granting these rights, privileges and concessions to foreigners if the act will promote the weal of the nation. In implementing the policy articulated in section 10, Article XII of the Constitution, the stellar task of our State policy-makers is to maintain a creative tension between two desiderata — first, the need to develop our economy and patrimony with the help of foreigners if necessary, and, second, the need to keep our economy controlled by Filipinos. Rightfully, the framers of the Constitution did not define the degree of the right of preference to be given to qualified Filipinos. They knew that for the right to serve the general welfare, it must have a malleable content that can be adjusted by our policy-makers to meet the changing needs of our people. In fine, the right of preference of qualified Filipinos is to be determined by degree as time dictates and circumstances warrant. The lesser the need for alien assistance, the

greater the degree of the right of preference can be given to Filipinos and vice verse. Again, it should be stressed that the right and the duty to determine the degree of this privilege at any given time is addressed to the entire State. While under our constitutional scheme, the right primarily belongs to Congress as the lawmaking department of our government, other branches of government, and all their agencies and instrumentalities, share the power to enforce this state policy. Within the limits of their authority, they can act or promulgate rules and regulations defining the degree of this right of preference in cases where they have to make grants involving the national economy and judicial duty. On the other hand, our duty is to strike down acts of the state that violate the policy. To date, Congress has not enacted a law defining the degree of the preferential right. Consequently, we must turn to the rules and regulations of on respondents Committee Privatization and GSIS to determine the degree of preference that petitioner is entitled to as a qualified Filipino in the subject sale. A tearless look at the rules and regulations will show that they are silent on the degree of preferential right to be accorded qualified Filipino bidder. Despite their silence, however, they cannot be read to mean that they do not grant any degree of preference to petitioner for paragraph 2, section 10, Article XII of the Constitution is deemed part of said rules and regulations. Pursuant to legal hermeneutics which demand that we interpret rules to save them from unconstitutionality, I submit that the right of preference of petitioner arises only if it tied the bid of Benong Berhad. In that instance, all things stand equal, and bidder, as a qualified Pilipino bidder, should be preferred. It is with deep regret that I cannot subscribe to the view that petitioner has a right to match the bid of Renong Berhad. Petitioner's submission must be supported by the rules but even if we examine the rules inside-out .thousand times, they can not justify the claimed right. Under the rules, the right to match the highest bid arises only "if for any reason, the highest bidder cannot be awarded block of shares . . ." No reason has arisen that will prevent the award to Renong Berhad. It qualified as bidder. It complied with the procedure of bidding. It tendered the highest bid. It was declared as the highest bidder by the GSIS and the rules say this decision is final. It deserves the award as a matter of right for the rules clearly did not give to the petitioner as a qualified Filipino privilege to match the higher bid of a foreigner. What the rules did not grant, petitioner cannot demand. Our symphaties may be with petitioner but the court has no power to extend the latitude and longtitude of the right of preference as defined by the rules. The parameters of the right of preference depend on galaxy of facts and factors whose determination belongs to the province of the policy-making branches and agencies of the State. We are dutybound to respect that determination even if we differ with the wisdom of their judgment. The right they grant may be little but we must uphold the grant for as

long as the right of preference is not denied. It is only when a State action amounts to a denial of the right that the Court can come in and strike down the denial as unconstitutional. Finally, I submit that petitioner is estopped from assailing the winning bid of Renong Berhad. Petitioner was aware of the rules and regulations of the bidding. It knew that the rules and regulations do not provide that a qualified Filipino bidder can match the winning bid submitting an inferior bid. It knew that the bid was open to foreigners and that foreigners qualified even during the first bidding. Petitioner cannot be allowed to repudiate the rules which it agreed to respect. It cannot be allowed to obey the rules when it wins and disregard them when it loses. If sustained, petitioners' stance will wreak havoc on he essence of bidding. Our laws, rules and regulations require highest bidding to raise as much funds as possible for the government to maximize its capacity to deliver essential services to our people. This is a duty that must be discharged by Filipinos and foreigners participating in a bidding contest and the rules are carefully written to attain this objective. Among others, bidders are prequalified to insure their financial capability. The bidding is secret and the bids are sealed to prevent collusion among the parties. This objective will be undermined if we grant petitioner that privilege to know the winning bid and a chance to match it. For plainly, a second chance to bid will encourage a bidder not to strive to give the highest bid in the first bidding. We support the Filipino First policy without any reservation. The visionary nationalist Don Claro M. Recto has warned us that the greatest tragedy that can befall a Filipino is to be an alien in his own land. The Constitution has embodied Recto's counsel as a state policy. But while the Filipino First policy requires that we incline to a Filipino, it does not demand that we wrong an alien. Our policy makers can write laws and rules giving favored treatment to the Filipino but we are not free to be unfair to a foreigner after writing the laws and the rules. After the laws are written, they must be obeyed as written, by Filipinos and foreigners alike. The equal protection clause of the Constitution protects all against unfairness. We can be proFilipino without unfairness to foreigner. I vote to dismiss the petition. Narvasa, C.J., and Melo, J., concur.   PANGANIBAN, J.,  dissenting: I regret I cannot join the majority. To the incisive Dissenting Opinion of Mr. Justice Reynato S. Puno, may I just add 1. The majority contends the Constitution should be interpreted to mean that, after a bidding process is concluded, the losing Filipino bidder should be given the right to equal the highest foreign bid, and thus to win. However, the Constitution [Sec. 10 (2), Art. XII] simply states that "in the grant of rights . . . covering the national economy and patrimony, the State shall give preference to qualified Filipinos." The

majority concedes that there is no law defining the extent or degree of such preference. Specifically, no statute empowers a losing Filipino bidder to increase his bid and equal that of the winning foreigner. In the absence of such empowering law, the majority's strained interpretation, I respectfully submit constitutes unadulterated judicial legislation, which makes bidding a ridiculous sham where no Filipino can lose and where no foreigner can win. Only in the Philippines!. 2. Aside from being prohibited by the Constitution, such judicial is short-sighted and, viewed properly, gravely prejudicial to long-term Filipino interest. It encourages other countries — in the guise of reverse comity or worse, unabashed retaliation — to discriminate against us in their own jurisdictions by authorizing their own nationals to similarly equal and defeat the higher bids of Filipino enterprises solely, while on the other hand, allowing similar bids of other foreigners to remain unchallenged by their nationals. The majority's thesis will thus marginalize Filipinos as pariahs in the global marketplace with absolute no chance of winning any bidding outside our country. Even authoritarian regimes and hermit kingdoms have long ago found out unfairness, greed and isolation are self-defeating and in the long-term, self-destructing. The moral lesson here is simple: Do not do unto other what you dont want other to do unto you. 3. In the absence of a law specifying the degree or extent of the "Filipino First" policy of the Constitution, the constitutional preference for the "qualified Filipinos" may be allowed only where all the bids are equal. In this manner, we put the Filipino ahead without self-destructing him and without being unfair to the foreigner. In short, the Constitution mandates a victory for the qualified Filipino only when the scores are tied. But not when the ballgame is over and the foreigner clearly posted the highest score. Separate Opinions PADILLA, J., concurring: I concur with the  ponencia  of Mr. Justice Bellosillo. At the same time, I would like to expound a bit more on the concept of national patrimony as including within its scope and meaning institutions such as the Manila Hotel. It is argued by petitioner that the Manila Hotel comes under "national patrimony" over which qualified Filipinos have the preference, in ownership and operation. The Constitutional provision on point states: xxx xxx xxx In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall Give preference to qualified Filipinos.1 Petitioner's argument, I believe, is well taken. Under the 1987 Constitution, "national patrimony" consists of the natural resources provided by Almighty God

(Preamble) in our territory (Article I) consisting of land, sea, and air.2 study of the 1935 Constitution, where the concept of "national patrimony" originated, would show that its framers decided to adopt the even more comprehensive expression "Patrimony of the Nation" in the belief that the phrase encircles a concept embracing not only their natural resources of the country but practically everything that belongs to the Filipino people, the tangible and the material as well as the intangible and the spiritual assets and possessions of the people. It is to be noted that the framers did not stop with conservation. They knew that conservation alone does not spell progress; and that this may be achieved only through development as a correlative factor to assure to the people not only the exclusive ownership, but also the exclusive benefits of their national patrimony).3 Moreover, the concept of national patrimony has been viewed as referring not only to our rich natural resources but also to the cultural heritage of our race.4 There is no doubt in my mind that the Manila Hotel is very much a part of our national patrimony and, as such, deserves constitutional protection as to who shall own it and benefit from its operation. This institution has played an important role in our nation's history, having been the venue of many a historical event, and serving as it did, and as it does, as the Philippine Guest House for visiting foreign heads of state, dignitaries, celebrities, and others.5 It is therefore our duty to protect and preserve it for future generations of Filipinos. As President Manuel L. Quezon once said, we must exploit the natural resources of our country, but we should do so with. an eye to the welfare of the future generations. In other words, the leaders of today are the trustees of the patrimony of our race. To preserve our national patrimony and reserve it for Filipinos was the intent of the distinguished gentlemen who first framed our Constitution. Thus, in debating the need for nationalization of our lands and natural resources, one expounded that we should "put more teeth into our laws, and; not make the nationalization of our lands and natural resources a subject of ordinary legislation but of constitutional enactment"6 To quote further: "Let not our children be mere tenants and trespassers in their own country. Let us preserve and bequeath to them what is rightfully theirs, free from all foreign liens and encumbrances".7 Now, a word on preference. In my view "preference to qualified Filipinos", to be meaningful, must refer not only to things that are peripheral, collateral, or tangential. It must touch and affect the very "heart of the existing order." In the field of public bidding in the acquisition of things that pertain to the national patrimony, preference to qualified Filipinos must allow a qualified Filipino to match or equal the higher bid of a non-Filipino; the preference shall not operate only when the bids of the qualified Filipino and the non-Filipino are equal in which case, the award should undisputedly be made to the qualified Filipino. The Constitutional preference should give the qualified Filipino an opportunity to match or equal the

higher bid of the non-Filipino bidder if the preference of the qualified Filipino bidder is to be significant at all. It is true that in this present age of globalization of attitude towards foreign investments in our country, stress is on the elimination of barriers to foreign trade and investment in the country. While government agencies, including the courts should re-condition their thinking to such a trend, and make it easy and even attractive for foreign investors to come to our shores, yet we should not preclude ourselves from reserving to us Filipinos certain areas where our national identity, culture and heritage are involved. In the hotel industry, for instance, foreign investors have established themselves creditably, such as in the Shangri-La, the Nikko, the Peninsula, and Mandarin Hotels. This should not stop us from retaining 51% of the capital stock of the Manila Hotel Corporation in the hands of Filipinos. This would be in keeping with the intent of the Filipino people to preserve our national patrimony, including our historical and cultural heritage in the hands of Filipinos. VITUG, J.,  concurring: I agree with Mr. Justice Josue N. Bellosillo on his clear-cut statements, shared by Mr. Justice Reynato S. Puno in a well written separate (dissenting) opinion, that: First, the provision in our fundamental law which provides that "(I)n the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos"1 is self-executory. The provision verily does not need, although it can obviously be amplified or regulated by, an enabling law or a set of rules. Second, the term "patrimony" does not merely refer to the country's natural resources but also to its cultural heritage. A "historical landmark," to use the words of Mr. Justice Justo P. Torres, Jr., Manila Hotel has now indeed become part of Philippine heritage. Third, the act of the Government Service Insurance System ("GSIS"), a government entity which derives its authority from the State, in selling 51% of its share in MHC should be considered an act of the State subject to the Constitutional mandate. On the pivotal issue of the degree of "preference to qualified Filipinos," I find it somewhat difficult to take the same path traversed by the forceful reasoning of Justice Puno. In the particular case before us, the only meaningful preference, it seems, would really be to allow the qualified Filipino to match the foreign bid for, as a particular matter, I cannot see any bid that literally calls for millions of dollars to be at par (to the last cent) with another. The magnitude of the magnitude of the bids is such that it becomes hardly possible for the competing bids to stand exactly "equal" which alone, under the dissenting view, could trigger the right of preference. It is most unfortunate that Renong Berhad has not been spared this great disappointment, a letdown that it did not deserve, by a simple and timely advise of

the proper rules of bidding along with the peculiar constitutional implications of the proposed transaction. It is also regrettable that the Court at time is seen, to instead, be the refuge for bureaucratic inadequate which create the perception that it even takes on non-justiciable controversies. All told, I am constrained to vote for granting the petition. MENDOZA, J.,  concurring in the judgment: I take the view that in the context of the present controversy the only way to enforce the constitutional mandate that "[i]n the grant of rights, privileges and concessions covering the national patrimony the State shall give preference to qualified Filipinos"1 is to allow petitioner Philippine corporation to equal the bid of the Malaysian firm Renong Berhad for the purchase of the controlling shares of stocks in the Manila Hotel Corporation. Indeed, it is the only way a qualified Filipino of Philippine corporation can be given preference in the enjoyment of a right, privilege or concession given by the State, by favoring it over a foreign national corporation. Under the rules on public bidding of the Government Service and Insurance System, if petitioner and the Malaysian firm had offered the same price per share, "priority [would be given] to the bidder seeking the larger ownership interest in MHC,"2 so that petitioner bid for more shares, it would be preferred to the Malaysian corporation for that reason and not because it is a Philippine corporation. Consequently, it is only in cases like the present one, where an alien corporation is the highest bidder, that preferential treatment of the Philippine corporation is mandated not by declaring it winner but by allowing it "to match the highest bid in terms of price per share" before it is awarded the shares of stocks.3 That, to me, is what "preference to qualified Filipinos" means in the context of this case — by favoring Filipinos whenever they are at a disadvantage vis-a-vis foreigners. This was the meaning given in Co Chiong v.  Cuaderno4 to a 1947 statute giving "preference to Filipino citizens in the lease of public market stalls."5 This Court upheld the cancellation of existing leases covering market stalls occupied by persons who were not Filipinos and the award thereafter of the stalls to qualified Filipino vendors as ordered by the Department of Finance. Similarly, in Vda. de Salgado v. De la Fuente,6 this Court sustained the validity of a municipal ordinance passed pursuant to the statute (R.A. No. 37), terminating existing leases of public market stalls and granting preference to Filipino citizens in the issuance of new licenses for the occupancy of the stalls. In Chua Lao v. Raymundo,7 the preference granted under the statute was held to apply to cases in which Filipino vendors sought the same stalls occupied by alien vendors in the public markets even if there were available other stalls as good as those occupied by aliens. "The law, apparently, is applicable whenever there is a conflict of interest between Filipino applicants and aliens for lease of stalls in public markets, in which situation the right to preference immediately arises."8

Our legislation on the matter thus antedated by a quarter of a century efforts began only in the 1970s in America to realize the promise of equality, through affirmative action and reverse discrimination programs designed to remedy past discrimination against colored people in such areas as employment, contracting and licensing.9 Indeed, in vital areas of our national economy, there are situations in which the only way to place Filipinos in control of the national economy as contemplated in the Constitution 10 is to give them preferential treatment where they can at least stand on equal footing with aliens. There need be no fear that thus preferring Filipinos would either invite foreign retaliation or deprive the country of the benefit of foreign capital or know-how. We are dealing here not with common trades of common means of livelihood which are open to aliens in our midst, 11 but with the sale of government property, which is like the grant of government largess of benefits and concessions covering the national economy" and therefore no one should begrudge us if we give preferential treatment to our citizens. That at any rate is the command of the Constitution. For the Manila Hotel is a business owned by the Government. It is being privatized. Privatization should result in the relinquishment of the business in favor of private individuals and groups who are Filipino citizens, not in favor of aliens. Nor should there be any doubt that by awarding the shares of stocks to petitioner we would be trading competence and capability for nationalism. Both petitioner and the Malaysian firm are qualified, having hurdled the prequalification process. 12 It is only the result of the public bidding that is sought to be modified by enabling petitioner to up its bid to equal the highest bid. Nor, finally, is there any basis for the suggestion that to allow a Filipino bidder to match the highest bid of an alien could encourage speculation, since all that a Filipino entity would then do would be not to make a bid or make only a token one and, after it is known that a foreign bidder has submitted the highest bid, make an offer matching that of the foreign firm. This is not possible under the rules on public bidding of the GSIS. Under these rules there is a minimum bid required (P36.87 per share for a range of 9 to 15 million shares). 13 Bids below the minimum will not be considered. On the other hand, if the Filipino entity, after passing the prequalification process, does not submit a bid, he will not be allowed to match the highest bid of the foreign firm because this is a privilege allowed only to those who have "validly submitted bids." 14 The suggestion is, to say the least, fanciful and has no basis in fact. For the foregoing reasons, I vote to grant the petition. TORRES, JR., J.,  separate opinion: Constancy in law is not an attribute of a judicious mind. I say this as we are not confronted in the case at bar with legal and constitutional issues — and yet I am driven so to speak on the side of history. The reason perhaps is due to the belief

that in the words of Justice Oliver Wendell Holmes, Jr., a "page of history is worth a volume of logic." I will, however, attempt to share my thoughts on whether the Manila Hotel has a historical and cultural aspect within the meaning of the constitution and thus, forming part of the "patrimony of the nation". Section 10, Article XII of the 1987 Constitution provides: xxx xxx xxx In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos. The State shall regulate and exercise authority over foreign investments within its national goals and priorities. The foregoing provisions should be read in conjunction with Article II of the same Constitution pertaining to "Declaration of Principles and State Policies" which ordain — The State shall develop a self-reliant and independent national economy effectively by Filipinos. (Sec. 19). Interestingly, the matter of giving preference to "qualified Filipinos" was one of the highlights in the 1987 Constitution Commission proceedings thus: x x x           x x x          x x x MR. NOLLEDO. The Amendment will read: "IN THE GRANT OF RIGHTS, PRIVILEGES AND CONCESSIONS COVERING THE NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS". And the word "Filipinos" here, as intended by the proponents, will include not only individual Filipinos but also Filipino-Controlled entities fully controlled by Filipinos (Vol. III, Records of the Constitutional Commission, p. 608). MR. MONSOD. We also wanted to add, as Commissioner Villegas said, this committee and this body already approved what is known as the Filipino First policy which was suggested by Commissioner de Castro. So that it is now in our Constitution (Vol. IV, Records of the Constitutional Commission, p. 225). Commissioner Jose Nolledo explaining the provision adverted to above, said: MR. NOLLEDO. In the grant of rights, privileges and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos. MR. FOZ. In connection with that amendment, if a foreign enterprise is qualified and the Filipinos enterprise is also qualified, will the Filipino enterprise still be given a preference? MR. NOLLEDO. Obviously. MR. FOZ. If the foreigner is more qualified in some aspects than the Filipino enterprise, will the Filipino still be preferred:? MR. NOLLEDO. The answer is "yes". (Vol. III, p. 616, Records of the Constitutional Commission).

The nationalistic provisions of the 1987 Constitution reflect the history and spirit of the Malolos Constitution of 1898, the 1935 Constitution and the 1973 Constitutions. That we have no reneged on this nationalist policy is articulated in one of the earliest case, this Court said — The nationalistic tendency is manifested in various provisions of the Constitution. . . . It cannot therefore be said that a law imbued with the same purpose and spirit underlying many of the provisions of the Constitution is unreasonable, invalid or unconstitutional (Ichong, et al. vs. Hernandez, et al., 101 Phil. 1155). I subscribe to the view that history, culture, heritage, and traditions are not legislated and is the product of events, customs, usages and practices. It is actually a product of growth and acceptance by the collective mores of a race. It is the spirit and soul of a people. The Manila Hotel is part of our history, culture and heritage. Every inch of the Manila Hotel is witness to historic events (too numerous to mention) which shaped our history for almost 84 years. As I intimated earlier, it is not my position in this opinion, to examine the single instances of the legal largese which have given rise to this controversy. As I believe that has been exhaustively discussed in the ponencia. Suffice it to say at this point that the history of the Manila Hotel should not be placed in the auction block of a purely business transaction, where profits subverts the cherished historical values of our people. As a historical landmark in this "Pearl of the Orient Seas", it has its enviable tradition which, in the words of the philosopher Salvador de Madarriaga tradition is "more of a river than a stone, it keeps flowing, and one must view the flowing , and one must view the flow of both directions. If you look towards the hill from which the river flows, you see tradition in the form of forceful currents that push the river or people towards the future, and if you look the other way, you progress." Indeed, tradition and progress are the same, for progress depends on the kind of tradition. Let us not jettison the tradition of the Manila Hotel and thereby repeat our colonial history. I grant, of course the men of the law can see the same subject in different lights. I remember, however, a Spanish proverb which says — "He is always right who suspects that he makes mistakes". On this note, I say that if I have to make a mistake, I would rather err upholding the belief that the Filipino be first under his Constitution and in his own land. I vote GRANT the petition.   PUNO, J.,  dissenting: This is a. petition for prohibition and mandamus filed by the Manila Prince Hotel Corporation, a domestic corporation, to stop the Government Service Insurance

System (GSIS) from selling the controlling shares of the Manila Hotel Corporation to a foreign corporation. Allegedly, the sale violates the second paragraph of section 10, Article XII of the Constitution. Respondent GSIS is a government-owned and controlled corporation. It is the sole owner of the Manila Hotel which it operates through its subsidiary, the Manila Hotel Corporation. Manila Hotel was included in the privatization program of the government. In 1995, GSIS proposed to sell to interested buyers 30% to 51% of its shares, ranging from 9,000,000 to 15,300,000 shares, in the Manila Hotel Corporation. After the absence of bids at the first public bidding, the block of shares offered for sale was increased from a maximum of 30% to 51%. Also, the winning bidder, or the eventual "strategic partner" of the GSIS was required to "provide management expertise and/or an international marketing/reservation system, and financial support to strengthen the profitability and performance of the Manila Hotel"1 The proposal was approved by respondent Committee on Privatization. In July 1995, a conference was held where prequalification documents and the bidding rules were furnished interested parties. Petitioner Manila Prince Hotel, a domestic corporation, and Renong Berhad, Malaysian firm with ITT Sheraton as operator, prequalified.2 The bidding rules and procedures entitled "Guidelines and Procedures: Second Prequalification and Public Bidding of the MHC Privatization" provide: I INTRODUCTION AND HIGHLIGHTS DETERMINING THE WINNING BIDDER/STRATEGIC PARTNER The party that accomplishes the steps set forth below will be declared the Winning Bidder/Strategic Partner and will be awarded the Block of Shares: First — Pass the prequalification process; Second — Submit the highest bid on a price per share basis for the Block of Shares; Third — Negotiate and execute the necessary contracts with GSIS/MHC not later than October 23, 1995; xxx xxx xxx IV GUIDELINES FOR PREQUALIFICATION A. PARTIES WHO MAP APPLY FOR PREQUALIFICATION The Winning Bidder/Strategic Partner will be expected to provide management expertise and/or an international marketing reservation system, and financial support to strengthen the profitability and performance of The Manila Hotel. In this context, the GSIS is inviting to the prequalification process any local and/or foreign corporation, consortium/joint venture or juridical entity with at least one of the following qualifications: a. Proven management .expertise in the hotel industry; or b. Significant equity ownership (i.e. board representation) in another hotel company; or

c. Overall management and marketing expertise to successfully operate the Manila Hotel. Parties interested in bidding for MHC should be able to provide access to the requisite management expertise and/or international marketing/reservation system for The Manila Hotel. xxx xxx xxx D. PREQUALIFICATION DOCUMENTS xxx xxx xxx E. APPLICATION PROCEDURE 1. DOCUMENTS AVAILABLE AT THE REGISTRATION OFFICE The prequalification documents can be secured at the Registration Office between 9:00 AM to 4:00 PM during working days within the period specified in Section III. Each set of documents consists of the following: a. Guidelines and Procedures: Second Prequalification and Public Bidding of the MHC Privatization b. Confidential Information Memorandum: The Manila Hotel Corporation c. Letter of Invitation. to the Prequalification and Bidding Conference xxx xxx xxx 4. PREQUALIFICATION AND BIDDING CONFERENCE A prequalification and bidding conference will be held at The Manila Hotel on the date specified in Section III to allow the Applicant to seek clarifications and further information regarding the guidelines and procedures. Only those who purchased the prequalification documents will be allowed in this conference. Attendance to this conference is strongly advised, although the Applicant will not be penalized if it does not attend. 5. SUBMISSION OF PREQUALIFICATION DOCUMENTS The applicant should submit 5 sets of the prequalification documents (1 original set plus 4 copies) at the Registration Office between 9:00 AM to 4:00 PM during working days within the period specified in Section III. F. PREQUALIFICATION PROCESS 1. The Applicant will be evaluated by the PBAC with the assistance of the TEC based on the Information Package and other information available to the PBAC. 2. If the Applicant is a Consortium/Joint Venture, the evaluation will consider the overall qualifications of the group, taking into account the contribution of each member to the venture. 3. The decision of the PBAC with respect to the results of the PBAC evaluation will be final. 4. The Applicant shall be evaluated according to the criteria set forth below: a. Business management expertise, track record, and experience b. Financial capability. c. Feasibility and acceptability of the proposed strategic plan for the Manila Hotel

5. The PBAC will shortlist such number of Applicants as it may deem appropriate. 6. The parties that prequalified in the first MHC public bidding — ITT Sheraton, Marriot International Inc., Renaissance Hotels International Inc., consortium of RCBC Capital/Ritz Carlton — may participate in the Public Bidding without having to undergo the prequalification process again. G. SHORTLIST OF QUALIFIED BIDDERS 1. A notice of prequalification results containing the shortlist of Qualified Bidders will be posted at the Registration Office at the date specified in Section III. 2. In the case of a Consortium/Joint Venture, the withdrawal by member whose qualification was a material consideration for being included in the shortlist is ground for disqualification of the Applicant. V. GUIDELINES FOR THE PUBLIC BIDDING A. PARTIES WHO MAY PARTICIPATE IN THE PUBLIC BIDDING All parties in the shortlist of Qualified Bidders will be eligible to participate in the Public Bidding. B. BLOCK OF SHARES A range of Nine Million (9,000,000) to Fifteen Million Three Hundred Thousand (15,300,000) shares of stock representing Thirty Percent to Fifty-One Percent (30%51%) of the issued and outstanding shares of MHC, will be offered in the Public Bidding by the GSIS. The Qualified Bidders will have the Option of determining the number of shares within the range to bid for. The range is intended to attract bidders with different preferences and objectives for the operation and management of The Manila Hotel. C. MINIMUM BID REQUIRED ON A PRICE PER SHARE BASIS 1. Bids will be evaluated on a  price per share basis. The minimum bid required on a price per share basis for the Block of Shares is Thirty-Six Pesos and Sixty-Seven Centavos (P36.67). 2. Bids should be in the Philippine currency payable to the GSIS. 3. Bids submitted with an equivalent price per share below the minimum required will not considered. D. TRANSFER COSTS x x x           x x x          x x x E. OFFICIAL BID FORM 1. Bids must be contained in the prescribed Official Bid Form, a copy of which is attached as Annex IV. The Official Bid Form must be properly accomplished in all details; improper accomplishment may be a sufficient basis for disqualification. 2. During the Public Bidding, the Qualified Bidder will submit the Official Bid Form, which will indicate the offered purchase price, in a sealed envelope marked "OFFICIAL BID." F. SUPPORTING DOCUMENTS

During the Public Bidding, the following documents should be submitted along with the bid in a separate envelop marked "SUPPORTING DOCUMENTS": 1. WRITTEN AUTHORITY TO BID (UNDER OATH). If the Qualified Bidder is a corporation, the representative of the Qualified Bidder should submit a Board resolution which adequately authorizes such representative to bid for and in behalf of the corporation with full authority to perform such acts necessary or requisite to bind the Qualified Bidder. If the Qualified Bidder is a Consortium/Joint Venture, each member of the Consortium/Joint venture should submit a Board resolution authorizing one of its members and such member's representative to make the bid on behalf of the group with full authority to perform such acts necessary or requisite to bind the Qualified Bidder. 2. BID SECURITY a. The Qualified Bidder should deposit Thirty-Three Million Pesos (P33,000,00), in Philippine currency as Bid Security in the form of: i. Manager's check or unconditional demand draft payable to the "Government Service Insurance System" and issued by a reputable banking institution duly licensed to do business in the Philippines and acceptable to GSIS; or ii. Standby-by letter of credit issued by a reputable banking institution acceptable to the GSIS. b. The GSIS will reject a bid if: i. The bid does not have Bid Security; or ii. The Bid Security accompanying the bid is for less than the required amount. c. If the Bid Security is in the form of a manager's check or unconditional demand draft, the interest earned on the Bid Security will be for the account of GSIS. d. If the Qualified Bidder becomes the winning Bidder/Strategic Partner, the Bid Security will be applied as the downpayment on the Qualified Bidder's offered purchase price. e. The Bid Security of the Qualified Bidder will be returned immediately after the Public Bidding if the Qualified Bidder is not declared the Highest Bidder. f. The Bid Security will be returned by October 23, 1995 if the Highest Bidder is unable to negotiate and execute with GSIS/MHC the Management Contract, International Marketing/Reservation System Contract or other types of contract specified by the Highest Bidder in its strategic plan for The Manila Hotel. g. The Bid Security of the Highest Bidder will be forfeited in favor of GSIS if the Highest Bidder, after negotiating and executing the Management Contract, International Marketing/Reservation System Contract specified by the Highest Bidder or other types of contract in its strategic plan for The Manila Hotel, fails or refuses to: i. Execute the Stock Purchase and Sale Agreement with GSIS not later than October 23, 1995; or

ii. Pay the full amount of the offered purchase price not later than October 23, 1995; or iii. Consummate the sale of the Block of Shares for any other reason. G. SUBMISSION OF BIDS 1. The Public Bidding will be held on September 7, 1995 at the following location: New GSIS Headquarters Building Financial Center, Reclamation Area Roxas Boulevard, Pasay City, Metro Manila. 2. The Secretariat of the PBAC will be stationed at the Public Bidding to accept any and all bids and supporting requirements. Representatives from the Commission on Audit and COP will be invited to witness the proceedings. 3. The Qualified Bidder should submit its bid using the Official Bid Form. The accomplished Official Bid Form should be submitted in a sealed envelope marked "OFFICIAL BID." 4. The Qualified Bidder should submit the following documents in another sealed envelope marked "SUPPORTING BID DOCUMENTS" a. Written Authority Bid b. Bid Security 5. The two sealed envelopes marked "OFFICIAL BID" and "SUPPORTING BID DOCUMENTS" must be submitted simultaneously to the Secretariat between 9:00 AM and 2:00 PM, Philippine Standard Time, on the date of the Public Bidding. No bid shall be accepted after the closing time. Opened or tampered bids shall not be accepted. 6. The Secretariat will log and record the actual time of submission of the two sealed envelopes. The actual time of submission will also be indicated by the Secretariat on the face of the two envelopes. 7. After Step No. 6, the two sealed envelopes will be dropped in the corresponding bid boxes provided for the purpose. These boxes will be in full view of the invited public. H. OPENING AND READING OF BIDS 1. After the closing time of 2:00 PM on the date of the Public Bidding, the PBAC will open all sealed envelopes marked "SUPPORTING BID DOCUMENTS" for screening, evaluation and acceptance. Those who submitted incomplete/insufficient documents or document/s which is/are not substantially in the form required by PBAC will be disqualified. The envelope containing their Official Bid Form will be immediately returned to the disqualified bidders. 2. The sealed envelopes marked "OFFICIAL BID" will be opened at 3:00 PM. The name of the bidder and the amount of its bid price will be read publicly as the envelopes are opened. 3. Immediately following the reading of the bids, the PBAC will formally announce the highest bid and the Highest Bidder.

4. The highest bid will be, determined on a price per share basis. In the event of a tie wherein two or more bids have the same equivalent price per share, priority will be given to the bidder seeking the larger ownership interest in MHC. 5. The Public Bidding will be declared a failed bidding in case: a. No single bid is submitted within the prescribed period; or b. There is only one (1) bid that is submitted and acceptable to the PBAC. I. EXECUTION OF THE NECESSARY CONTRACTS WITH GSIS/MHC 1. The Highest Bidder must comply with the conditions set forth below by October 23, 1995 or the Highest Bidder will lose the right to purchase the Block of Shares and GSIS will instead offer the Block of Shares to the other Qualified Bidders: a. The Highest Bidder must negotiate and execute with GSIS/MHC the Management Contract, International Marketing Reservation System Contract or other type of contract specified by the Highest Bidder in its strategic plan for The Manila Hotel. If the Highest Bidder is intending to provide only financial support to The Manila Hotel, a separate institution may enter into the aforementioned contract/s with GSIS/MHC. b. The Highest Bidder must execute the Stock Purchase and Sale Agreement with GSIS, a copy of which will be distributed to each of the Qualified Bidder after the prequalification process is completed. 2. In the event that the Highest Bidder chooses a Management Contract for The Manila Hotel, the maximum levels for the management fee structure that GSIS/MHC are prepared to accept in the Management Contract are as follows: a. Basic management fee: Maximum of 2.5% of gross revenues.(1) b. Incentive fee: Maximum of 8.0% of gross operating profit(1) after deducting undistributed overhead expenses and the basic management fee. c. Fixed component of the international marketing/reservation system fee: Maximum of 2.0% of gross room revenues.(1) The Applicant should indicate in its Information Package if it is wishes to charge this fee. Note (1): As defined in the uniform system of account for hotels. The GSIS/MHC have indicated above the acceptable parameters for the hotel management fees to facilitate the negotiations with the Highest Bidder for the Management Contract after the Public Bidding. A Qualified Bidder envisioning a Management Contract for The Manila Hotel should determine whether or not the management fee structure above is acceptable before submitting their prequalification documents to GSIS. J. BLOCK SALE TO THE OTHER QUALIFIED BIDDERS 1. If for any reason, the Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to the other Qualified Bidders that have validly submitted bids provided that these Qualified are willing to match the highest bid in terms of price per share.

2. The order of priority among the interested Qualified Bidders will be in accordance wit the equivalent price per share of their respective bids in their public Bidding, i.e., first and second priority will be given to the Qualified Bidders that submitted the second and third highest bids on the price per share basis, respectively, and so on. K. DECLARATION OF THE WINNING BIDDER/STRATEGIC PARTNER The Highest Bidder will be declared the Winning Bidder/Strategic Partner after the following conditions are met: a. Execution of the necessary contract with GSIS/MHC not later than October 23, 1995; and b. Requisite approvals from the GSIS/MHC and COP/OGCC are obtained. I. FULL PAYMENT FOR THE BLOCK OF SHARES 1. Upon execution of the necessary contracts with GSIS/MHC, the Winning Bidder/Strategic Partner must fully pay, not later than October 23, 1995, the offered purchase price for the Block of Shares after deducting the Bid Security applied as downpayment. 2. All payments should be made in the form of a Manager's Check or unconditional Demand Draft, payable to the "Government Service Insurance System," issued by a reputable banking institution licensed to do business in the Philippines and acceptable to GSIS. M. GENERAL CONDITIONS 1. The GSIS unconditionally reserves the right to reject any or all applications, waive any formality therein, or accept such application as maybe considered most advantageous to the GSIS. The GSIS similarly reserves the right to require the submission of any additional information from the Applicant as the PBAC may deem necessary. 2. The GSIS further reserves the right to call off the Public Bidding prior to acceptance of the bids and call for a new public bidding under amended rules, and without any liability whatsoever to any or all the Qualified Bidders, except the obligation to return the Bid Security. 3. The GSIS reserves the right to reset the date of the prequalification/bidding conference, the deadline for the submission of the prequalification documents, the date of the Public Bidding or other pertinent activities at least three (3) calendar days prior to the respective deadlines/target dates. 4. The GSIS sells only whatever rights, interest and participation it has on the Block of Shares. 5. All documents and materials submitted by the Qualified Bidders, except the Bid Security, may be returned upon request. 6. The decision of the PBAC/GSIS on the results of the Public Bidding is final. The Qualified Bidders, by participating in the Public Bidding, are deemed to have agreed to accept and abide by these results.

7. The GSIS will be held free and harmless form any liability, suit or allegation arising out of the Public Bidding by the Qualified Bidders who have participated in the Public Bidding.3 The second public bidding was held on September 18, 1995. Petitioner bidded P41.00 per share for 15,300,000 shares and Renong Berhad bidded P44.00 per share also for 15,300,000 shares. The GSIS declared Renong Berhad the highest bidder and immediately returned petitioner's bid security. On September 28, 1995, ten days after the bidding, petitioner wrote to GSIS offering to match the bid price of Renong Berhad. It requested that the award be made to itself citing the second paragraph of Section 10, Article XII of the Constitution. It sent a manager's check for thirty-three million pesos (P33,000,000.00) as bid security. Respondent GSIS, then in the process of negotiating with Renong Berhad the terms and conditions of the contract and technical agreements in the operation of the hotel, refused to entertain petitioner's request. Hence, petitioner filed the present petition. We issued a temporary restraining order on October 18, 1995. Petitioner anchors its plea on the second paragraph of Article XII, Section 10 of the Constitution4 on the "National Economy and Patrimony" which provides: xxx xxx xxx In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos. xxx xxx xxx The vital issues can be summed up as follows: (1) Whether section 10, paragraph 2 of Article XII of the Constitution is a selfexecuting provision and does not need implementing legislation to carry it into effect; (2) Assuming section 10 paragraph 2 of Article XII is self-executing whether the controlling shares of the Manila Hotel Corporation form part of our patrimony as a nation; (3) Whether GSIS is included in the term "State," hence, mandated to implement section 10, paragraph 2 of Article XII of the Constitution; (4) Assuming GSIS is part of the State, whether it failed to give preference to petitioner, a qualified Filipino corporation, over and above Renong Berhad, a foreign corporation, in the sale of the controlling shares of the Manila Hotel Corporation; (5) Whether petitioner is estopped from questioning the sale of the shares to Renong Berhad, a foreign corporation. Anent the first issue, it is now familiar learning that a Constitution provides the guiding policies and principles upon which is built the substantial foundation and general framework of the law and government.5 As a rule, its provisions are deemed

self-executing and can be enforced without further legislative action.6 Some of its provisions, however, can be implemented only through appropriate laws enacted by the Legislature, hence not self-executing. To determine whether a particular provision of a Constitution is self-executing is a hard row to hoe. The key lies on the intent of the framers of the fundamental law oftentimes submerged in its language. A searching inquiry should be made to find out if the provision is intended as a present enactment, complete in itself as a definitive law, or if it needs future legislation for completion and enforcement.7 The inquiry demands a micro-analysis of the text and the context of the provision in question.8 Courts as a rule consider the provisions of the Constitution as self-executing,9 rather than as requiring future legislation for their enforcement. 10 The reason is not difficult to discern. For if they are not treated as self-executing, the mandate of the fundamental law ratified by the sovereign people can be easily ignored and nullified by Congress. 11 Suffused with wisdom of the ages is the unyielding rule that legislative actions may give breath to constitutional rights but congressional in action should not suffocate them. 12 Thus, we have treated as self-executing the provisions in the Bill of Rights on arrests, searches and seizures, 13 the rights of a person under custodial investigation, 14 the rights of an accused, 15 and the privilege against selfincrimination, 16 It is recognize a that legislation is unnecessary to enable courts to effectuate constitutional provisions guaranteeing the fundamental rights of life, liberty and the protection of property. 17 The same treatment is accorded to constitutional provisions forbidding the taking or damaging of property for public use without just compensation.18 Contrariwise, case law lays down the rule that a constitutional provision is not selfexecuting where it merely announces a policy and its language empowers the Legislature to prescribe the means by which the policy shall be carried into effect. 19 Accordingly, we have held that the provisions in Article II of our Constitution entitled "Declaration of Principles and State Policies" should generally be construed as mere statements of principles of the State. 20 We have also ruled that some provisions of Article XIII on "Social Justice and Human Rights," 21 and Article XIV on "Education Science and Technology, Arts, Culture end Sports" 22 cannot be the basis of judicially enforceable rights. Their enforcement is addressed to the discretion of Congress though they provide the framework for legislation 23 to effectuate their policy content. 24 Guided by this map of settled jurisprudence, we now consider whether Section 10, Article XII of the 1987 Constitution is self-executing or not. It reads: Sec. 10. The Congress shall, upon recommendation of the economic and planning agency, when the national interest dictates, reserve to citizens of the Philippines or to corporations or associations at least sixty  per centum of whose capital is owned

by such citizens, or such higher percentage as Congress may prescribe, certain areas of investments. The Congress shall enact measures that will encourage the formation and operation of enterprises whose capital is wholly owned by Filipinos. In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos. The State shall regulate and exercise authority over foreign investments within its national jurisdiction and in accordance with its national goals and priorities. The first paragraph directs Congress to reserve certain areas of investments in the country 25 to Filipino citizens or to corporations sixty per cent 26 of whose capital stock is owned by Filipinos. It further commands Congress to enact laws that will encourage the formation and operation of one hundred percent Filipino-owned enterprises. In checkered contrast, the second paragraph orders the entire State to give preference to qualified Filipinos in the grant of rights and privileges covering the national economy and patrimony. The third paragraph also directs the State to regulate foreign investments in line with our national goals and well-set priorities. The first paragraph of Section 10 is not self-executing. By its express text, there is a categorical command for Congress to enact laws restricting foreign ownership in certain areas of investments in the country and to encourage the formation and operation of wholly-owned Filipino enterprises. The right granted by the provision is clearly still in esse. Congress has to breathe life to the right by means of legislation. Parenthetically, this paragraph was plucked from section 3, Article XIV of the 1973 Constitution. 27 The provision in the 1973 Constitution affirmed our ruling in the landmark case of Lao Ichong v. Hernandez, 28 where we upheld the discretionary authority of Congress to Filipinize certain areas of investments. 29 By reenacting the 1973 provision, the first paragraph of section 10 affirmed the power of Congress to nationalize certain areas of investments in favor of Filipinos. The second and third paragraphs of Section 10 are different. They are directed to the State and not to Congress alone which is but one of the three great branches of our government. Their coverage is also broader for they cover "the national economy and patrimony" and "foreign investments within [the] national jurisdiction" and not merely "certain areas of investments." Beyond debate, they cannot be read as granting Congress the exclusive power to implement by law the policy of giving preference to qualified Filipinos in the conferral of rights and privileges covering our national economy and patrimony. Their language does not suggest that any of the State agency or instrumentality has the privilege to hedge or to refuse its implementation for any reason whatsoever. Their duty to implement is unconditional and it is now. The second and the third paragraphs of Section 10, Article XII are thus self-executing. This submission is strengthened by Article II of the Constitution entitled "Declaration of Principles and State Policies." Its Section 19 provides that "[T]he

State shall develop a self-reliant and independent national economy effectively controlled by Filipinos." It engrafts the all-important Filipino First policy in our fundamental law and by the use of the mandatory word "shall," directs its enforcement by the whole State without any pause or a half- pause in time. The second issue is whether the sale of a majority of the stocks of the Manila Hotel Corporation involves the disposition of part of our national patrimony. The records of the Constitutional Commission show that the Commissioners entertained the same view as to its meaning. According to Commissioner Nolledo, "patrimony" refers not only to our rich natural resources but also to the cultural heritage of our race. 30 By this yardstick, the sale of Manila Hotel falls within the coverage of the constitutional provision giving preferential treatment to qualified Filipinos in the grant of rights involving our national patrimony. The unique value of the Manila Hotel to our history and culture cannot be viewed with a myopic eye. The value of the hotel goes beyond pesos and centavos. As chronicled by Beth Day Romulo, 31 the hotel first opened on July 4, 1912 as a first-class hotel built by the American Insular Government for Americans living in, or passing through, Manila while traveling to the Orient. Indigenous materials and Filipino craftsmanship were utilized in its construction, For sometime, it was exclusively used by American and Caucasian travelers and served as the "official guesthouse" of the American Insular Government for visiting foreign dignitaries. Filipinos began coming to the Hotel as guests during the Commonwealth period. When the Japanese occupied Manila, it served as military headquarters and lodging for the highest-ranking officers from Tokyo. It was at the Hotel and the Intramuros that the Japanese made their last stand during the Liberation of Manila. After the war, the Hotel again served foreign guests and Filipinos alike. Presidents and kings, premiers and potentates, as well as glamorous international film and sports celebrities were housed in the Hotel. It was also the situs of international conventions and conferences. In the local scene, it was the venue of historic meetings, parties and conventions of political parties. The Hotel has reaped and continues reaping numerous recognitions and awards from international hotel and travel award-giving bodies, a fitting acknowledgment of Filipino talent and ingenuity. These are judicially cognizable facts which cannot be bent by a biased mind. The Hotel may not, as yet, have been declared a national cultural treasure pursuant to Republic Act No. 4846 but that does not exclude it from our national patrimony. Republic Act No. 4846, "The Cultural Properties Preservation and Protection Act," merely provides a procedure whereby a particular cultural property may be classified a "national cultural treasure" or an "important cultural property. 32 Approved on June 18, 1966 and amended by P.D. 374 in 1974, the law is limited in its reach and cannot be read as the exclusive law implementing section 10, Article XII of the 1987 Constitution. To be sure, the law does not equate cultural

treasure and cultural property as synonymous to the phrase "patrimony of the nation." The third issue is whether the constitutional command to the State includes the respondent GSIS. A look at its charter will reveal that GSIS is a government-owned and controlled corporation that administers funds that come from the monthly contributions of government employees and the government. 33 The funds are held in trust for a distinct purpose which cannot be disposed of indifferently. 34 They are to be used to finance the retirement, disability and life insurance benefits of the employees and the administrative and operational expenses of the GSIS, 35 Excess funds, however, are allowed to be invested in business and other ventures for the benefit of the employees.36 It is thus contended that the GSIS investment in the Manila Hotel Corporation is a simple business venture, hence, an act beyond the contemplation of section 10, paragraph 2 of Article XII of the Constitution. The submission is unimpressive. The GSIS is not a pure private corporation. It is essentially a public corporation created by Congress and granted an original charter to serve a public purpose. It is subject to the jurisdictions of the Civil Service Commission 37 and the Commission on Audit. 38 As state-owned and controlled corporation, it is skin-bound to adhere to the policies spelled out in the general welfare of the people. One of these policies is the Filipino First policy which the people elevated as a constitutional command. The fourth issue demands that we look at the content of phrase "qualified Filipinos" and their "preferential right." The Constitution desisted from defining their contents. This is as it ought to be for a Constitution only lays down flexible policies and principles which can bent to meet today's manifest needs and tomorrow's unmanifested demands. Only a constitution strung with elasticity can grow as a living constitution. Thus, during the deliberations in the Constitutional Commission, Commissioner Nolledo to define the phrase brushed aside a suggestion to define the phrase "qualified Filipinos." He explained that present and prospective "laws" will take care of the problem of its interpretation, viz: x x x           x x x          x x x THE PRESIDENT. What is the suggestion of Commissioner Rodrigo? Is it to remove the word "QUALIFIED?" MR. RODRIGO. No, no, but say definitely "TO QUALIFIED FILIPINOS" as against whom? As against aliens over aliens? MR. NOLLEDO. Madam President, I think that is understood. We use the word "QUALIFIED" because the existing laws or the prospective laws will always lay down conditions under which business map be done, for example, qualifications on capital, qualifications on the setting up of other financial structures, et cetera. MR. RODRIGO. It is just a matter of style. MR. NOLLEDO Yes.

MR. RODRIGO. If we say, "PREFERENCE TO QUALIFIED FILIPINOS," it can be understood as giving preference to qualified Filipinos as against Filipinos who are not qualified. MR. NOLLEDO. Madam President, that was the intention of the proponents. The committee has accepted the amendment. x x x           x x x          x x x As previously discussed, the constitutional command to enforce the Filipino First policy is addressed to the State and not to Congress alone. Hence, the word "laws" should not be understood as limited to legislations but all state actions which include applicable rules and regulations adopted by agencies and instrumentalities of the State in the exercise of their rule-making power. In the case at bar, the bidding rules and regulations set forth the standards to measure the qualifications of bidders Filipinos and foreigners alike. It is not seriously disputed that petitioner qualified to bid as did Renong Berhad. 39 Thus, we come to the critical issue of the degree of preference which GSIS should have accorded petitioner, a qualified Filipino, over Renong Berhad, a foreigner, in the purchase of the controlling shares of the Manila Hotel. Petitioner claims that after losing the bid, this right of preference gives it a second chance to match the highest bid of Renong Berhad. With due respect, I cannot sustain petitioner's submission. I prescind from the premise that the second paragraph of section 10, Article XII of the Constitution is pro-Pilipino but not anti-alien. It is pro-Filipino for it gives preference to Filipinos. It is not, however, anti-alien per se for it does not absolutely bar aliens in the grant of rights, privileges and concessions covering the national economy and patrimony. Indeed, in the absence of qualified Filipinos, the State is not prohibited from granting these rights, privileges and concessions to foreigners if the act will promote the weal of the nation. In implementing the policy articulated in section 10, Article XII of the Constitution, the stellar task of our State policy-makers is to maintain a creative tension between two desiderata — first, the need to develop our economy and patrimony with the help of foreigners if necessary, and, second, the need to keep our economy controlled by Filipinos. Rightfully, the framers of the Constitution did not define the degree of the right of preference to be given to qualified Filipinos. They knew that for the right to serve the general welfare, it must have a malleable content that can be adjusted by our policy-makers to meet the changing needs of our people. In fine, the right of preference of qualified Filipinos is to be determined by degree as time dictates and circumstances warrant. The lesser the need for alien assistance, the greater the degree of the right of preference can be given to Filipinos and vice verse. Again, it should be stressed that the right and the duty to determine the degree of this privilege at any given time is addressed to the entire State. While under our

constitutional scheme, the right primarily belongs to Congress as the lawmaking department of our government, other branches of government, and all their agencies and instrumentalities, share the power to enforce this state policy. Within the limits of their authority, they can act or promulgate rules and regulations defining the degree of this right of preference in cases where they have to make grants involving the national economy and judicial duty. On the other hand, our duty is to strike down acts of the state that violate the policy. To date, Congress has not enacted a law defining the degree of the preferential right. Consequently, we must turn to the rules and regulations of on respondents Committee Privatization and GSIS to determine the degree of preference that petitioner is entitled to as a qualified Filipino in the subject sale. A tearless look at the rules and regulations will show that they are silent on the degree of preferential right to be accorded qualified Filipino bidder. Despite their silence, however, they cannot be read to mean that they do not grant any degree of preference to petitioner for paragraph 2, section 10, Article XII of the Constitution is deemed part of said rules and regulations. Pursuant to legal hermeneutics which demand that we interpret rules to save them from unconstitutionality, I submit that the right of preference of petitioner arises only if it tied the bid of Benong Berhad. In that instance, all things stand equal, and bidder, as a qualified Pilipino bidder, should be preferred. It is with deep regret that I cannot subscribe to the view that petitioner has a right to match the bid of Renong Berhad. Petitioner's submission must be supported by the rules but even if we examine the rules inside-out .thousand times, they can not justify the claimed right. Under the rules, the right to match the highest bid arises only "if for any reason, the highest bidder cannot be awarded block of shares . . ." No reason has arisen that will prevent the award to Renong Berhad. It qualified as bidder. It complied with the procedure of bidding. It tendered the highest bid. It was declared as the highest bidder by the GSIS and the rules say this decision is final. It deserves the award as a matter of right for the rules clearly did not give to the petitioner as a qualified Filipino privilege to match the higher bid of a foreigner. What the rules did not grant, petitioner cannot demand. Our symphaties may be with petitioner but the court has no power to extend the latitude and longtitude of the right of preference as defined by the rules. The parameters of the right of preference depend on galaxy of facts and factors whose determination belongs to the province of the policy-making branches and agencies of the State. We are dutybound to respect that determination even if we differ with the wisdom of their judgment. The right they grant may be little but we must uphold the grant for as long as the right of preference is not denied. It is only when a State action amounts to a denial of the right that the Court can come in and strike down the denial as unconstitutional.

Finally, I submit that petitioner is estopped from assailing the winning bid of Renong Berhad. Petitioner was aware of the rules and regulations of the bidding. It knew that the rules and regulations do not provide that a qualified Filipino bidder can match the winning bid submitting an inferior bid. It knew that the bid was open to foreigners and that foreigners qualified even during the first bidding. Petitioner cannot be allowed to repudiate the rules which it agreed to respect. It cannot be allowed to obey the rules when it wins and disregard them when it loses. If sustained, petitioners' stance will wreak havoc on he essence of bidding. Our laws, rules and regulations require highest bidding to raise as much funds as possible for the government to maximize its capacity to deliver essential services to our people. This is a duty that must be discharged by Filipinos and foreigners participating in a bidding contest and the rules are carefully written to attain this objective. Among others, bidders are prequalified to insure their financial capability. The bidding is secret and the bids are sealed to prevent collusion among the parties. This objective will be undermined if we grant petitioner that privilege to know the winning bid and a chance to match it. For plainly, a second chance to bid will encourage a bidder not to strive to give the highest bid in the first bidding. We support the Filipino First policy without any reservation. The visionary nationalist Don Claro M. Recto has warned us that the greatest tragedy that can befall a Filipino is to be an alien in his own land. The Constitution has embodied Recto's counsel as a state policy. But while the Filipino First policy requires that we incline to a Filipino, it does not demand that we wrong an alien. Our policy makers can write laws and rules giving favored treatment to the Filipino but we are not free to be unfair to a foreigner after writing the laws and the rules. After the laws are written, they must be obeyed as written, by Filipinos and foreigners alike. The equal protection clause of the Constitution protects all against unfairness. We can be proFilipino without unfairness to foreigner. I vote to dismiss the petition. Narvasa, C.J., and Melo, J., concur.     PANGANIBAN, J.,  dissenting: I regret I cannot join the majority. To the incisive Dissenting Opinion of Mr. Justice Reynato S. Puno, may I just add 1. The majority contends the Constitution should be interpreted to mean that, after a bidding process is concluded, the losing Filipino bidder should be given the right to equal the highest foreign bid, and thus to win. However, the Constitution [Sec. 10 (2), Art. XII] simply states that "in the grant of rights . . . covering the national economy and patrimony, the State shall give preference to qualified Filipinos." The majority concedes that there is no law defining the extent or degree of such preference. Specifically, no statute empowers a losing Filipino bidder to increase his

bid and equal that of the winning foreigner. In the absence of such empowering law, the majority's strained interpretation, I respectfully submit constitutes unadulterated judicial legislation, which makes bidding a ridiculous sham where no Filipino can lose and where no foreigner can win. Only in the Philippines!. 2. Aside from being prohibited by the Constitution, such judicial is short-sighted and, viewed properly, gravely prejudicial to long-term Filipino interest. It encourages other countries — in the guise of reverse comity or worse, unabashed retaliation — to discriminate against us in their own jurisdictions by authorizing their own nationals to similarly equal and defeat the higher bids of Filipino enterprises solely, while on the other hand, allowing similar bids of other foreigners to remain unchallenged by their nationals. The majority's thesis will thus marginalize Filipinos as pariahs in the global marketplace with absolute no chance of winning any bidding outside our country. Even authoritarian regimes and hermit kingdoms have long ago found out unfairness, greed and isolation are self-defeating and in the long-term, self-destructing. The moral lesson here is simple: Do not do unto other what you dont want other to do unto you. 3. In the absence of a law specifying the degree or extent of the "Filipino First" policy of the Constitution, the constitutional preference for the "qualified Filipinos" may be allowed only where all the bids are equal. In this manner, we put the Filipino ahead without self-destructing him and without being unfair to the foreigner. In short, the Constitution mandates a victory for the qualified Filipino only when the scores are tied. But not when the ballgame is over and the foreigner clearly posted the highest score.

G.R. No. 127325 March 19, 1997 MIRIAM DEFENSOR SANTIAGO, ALEXANDER PADILLA, and MARIA ISABEL ONGPIN, petitioners, vs. COMMISSION ON ELECTIONS, JESUS DELFIN, ALBERTO PEDROSA & CARMEN PEDROSA, in their capacities as founding members of the People's Initiative for Reforms, Modernization and Action (PIRMA), respondents. SENATOR RAUL S. ROCO, DEMOKRASYA-IPAGTANGGOL ANG KONSTITUSYON (DIK), MOVEMENT OF ATTORNEYS FOR BROTHERHOOD INTEGRITY AND NATIONALISM, INC. (MABINI), INTEGRATED BAR OF THE PHILIPPINES (IBP), and LABAN NG DEMOKRATIKONG PILIPINO (LABAN), petitioners-intervenors. DAVIDE, JR., J.: The heart of this controversy brought to us by way of a petition for prohibition under Rule 65 of the Rules of Court is the right of the people to directly propose amendments to the Constitution through the system of initiative under Section 2 of Article XVII of the 1987 Constitution. Undoubtedly, this demands special attention, as this system of initiative was unknown to the people of this country, except perhaps to a few scholars, before the drafting of the 1987 Constitution. The 1986 Constitutional Commission itself, through the original proponent1 and the main sponsor2 of the proposed Article on Amendments or Revision of the Constitution, characterized this system as "innovative".3 Indeed it is, for both under the 1935 and 1973 Constitutions, only two methods of proposing amendments to, or revision of, the Constitution were recognized, viz., (1) by Congress upon a vote of three-fourths of all its members and (2) by a constitutional convention.4 For this and the other reasons hereafter discussed, we resolved to give due course to this petition. On 6 December 1996, private respondent Atty. Jesus S. Delfin filed with public respondent Commission on Elections (hereafter, COMELEC) a "Petition to Amend the Constitution, to Lift Term Limits of Elective Officials, by People's Initiative" (hereafter, Delfin Petition)5 wherein Delfin asked the COMELEC for an order 1. Fixing the time and dates for signature gathering all over the country; 2. Causing the necessary publications of said Order and the attached "Petition for Initiative on the 1987 Constitution, in newspapers of general and local circulation; 3. Instructing Municipal Election Registrars in all Regions of the Philippines, to assist Petitioners and volunteers, in establishing signing stations at the time and on the dates designated for the purpose. Delfin alleged in his petition that he is a founding member of the Movement for People's Initiative,6 a group of citizens desirous to avail of the system intended to institutionalize people power; that he and the members of the Movement and other volunteers intend to exercise the power to directly propose amendments to the Constitution granted under Section 2, Article XVII of the Constitution; that the

exercise of that power shall be conducted in proceedings under the control and supervision of the COMELEC; that, as required in COMELEC Resolution No. 2300, signature stations shall be established all over the country, with the assistance of municipal election registrars, who shall verify the signatures affixed by individual signatories; that before the Movement and other volunteers can gather signatures, it is necessary that the time and dates to be designated for the purpose be first fixed in an order to be issued by the COMELEC; and that to adequately inform the people of the electoral process involved, it is likewise necessary that the said order, as well as the Petition on which the signatures shall be affixed, be published in newspapers of general and local circulation, under the control and supervision of the COMELEC. The Delfin Petition further alleged that the provisions sought to be amended are Sections 4 and 7 of Article VI,7 Section 4 of Article VII,8 and Section 8 of Article X9 of the Constitution. Attached to the petition is a copy of a "Petition for Initiative on the 1987 Constitution" 10 embodying the proposed amendments which consist in the deletion from the aforecited sections of the provisions concerning term limits, and with the following proposition: DO YOU APPROVE OF LIFTING THE TERM LIMITS OF ALL ELECTIVE GOVERNMENT OFFICIALS, AMENDING FOR THE PURPOSE SECTIONS 4 AND 7 OF ARTICLE VI, SECTION 4 OF ARTICLE VII, AND SECTION 8 OF ARTICLE X OF THE 1987 PHILIPPINE CONSTITUTION? According to Delfin, the said Petition for Initiative will first be submitted to the people, and after it is signed by at least twelve per cent of the total number of registered voters in the country it will be formally filed with the COMELEC. Upon the filing of the Delfin Petition, which was forthwith given the number UND 96-037 (INITIATIVE), the COMELEC, through its Chairman, issued an Order 11 (a) directing Delfin "to cause the publication of the petition, together with the attached Petition for Initiative on the 1987 Constitution (including the proposal, proposed constitutional amendment, and the signature form), and the notice of hearing in three (3) daily newspapers of general circulation at his own expense" not later than 9 December 1996; and (b) setting the case for hearing on 12 December 1996 at 10:00 a.m. At the hearing of the Delfin Petition on 12 December 1996, the following appeared: Delfin and Atty. Pete Q. Quadra; representatives of the People's Initiative for Reforms, Modernization and Action (PIRMA); intervenor-oppositor Senator Raul S. Roco, together with his two other lawyers, and representatives of, or counsel for, the Integrated Bar of the Philippines (IBP), Demokrasya-Ipagtanggol ang Konstitusyon (DIK), Public Interest Law Center, and Laban ng Demokratikong Pilipino (LABAN). 12 Senator Roco, on that same day, filed a Motion to Dismiss the Delfin Petition on the ground that it is not the initiatory petition properly cognizable by the COMELEC.

After hearing their arguments, the COMELEC directed Delfin and the oppositors to file their "memoranda and/or oppositions/memoranda" within five days. 13 On 18 December 1996, the petitioners herein — Senator Miriam Defensor Santiago, Alexander Padilla, and Maria Isabel Ongpin — filed this special civil action for prohibition raising the following arguments: (1) The constitutional provision on people's initiative to amend the Constitution can only be implemented by law to be passed by Congress. No such law has been passed; in fact, Senate Bill No. 1290 entitled An Act Prescribing and Regulating Constitution Amendments by People's Initiative, which petitioner Senator Santiago filed on 24 November 1995, is still pending before the Senate Committee on Constitutional Amendments. (2) It is true that R.A. No. 6735 provides for three systems of initiative, namely, initiative on the Constitution, on statutes, and on local legislation. However, it failed to provide any subtitle on initiative on the Constitution, unlike in the other modes of initiative, which are specifically provided for in Subtitle II and Subtitle III. This deliberate omission indicates that the matter of people's initiative to amend the Constitution was left to some future law. Former Senator Arturo Tolentino stressed this deficiency in the law in his privilege speech delivered before the Senate in 1994: "There is not a single word in that law which can be considered as implementing [the provision on constitutional initiative]. Such implementing provisions have been obviously left to a separate law. (3) Republic Act No. 6735 provides for the effectivity of the law after publication in print media. This indicates that the Act covers only laws and not constitutional amendments because the latter take effect only upon ratification and not after publication. (4) COMELEC Resolution No. 2300, adopted on 16 January 1991 to govern "the conduct of initiative on the Constitution and initiative and referendum on national and local laws, is ultra vires insofar as initiative on amendments to the Constitution is concerned, since the COMELEC has no power to provide rules and regulations for the exercise of the right of initiative to amend the Constitution. Only Congress is authorized by the Constitution to pass the implementing law. (5) The people's initiative is limited to amendments to the Constitution, not to revision thereof. Extending or lifting of term limits constitutes a revision and is, therefore, outside the power of the people's initiative. (6) Finally, Congress has not yet appropriated funds for people's initiative; neither the COMELEC nor any other government department, agency, or office has realigned funds for the purpose. To justify their recourse to us via the special civil action for prohibition, the petitioners allege that in the event the COMELEC grants the Delfin Petition, the people's initiative spearheaded by PIRMA would entail expenses to the national treasury for general re-registration of voters amounting to at least P180 million, not

to mention the millions of additional pesos in expenses which would be incurred in the conduct of the initiative itself. Hence, the transcendental importance to the public and the nation of the issues raised demands that this petition for prohibition be settled promptly and definitely, brushing aside technicalities of procedure and calling for the admission of a taxpayer's and legislator's suit. 14 Besides, there is no other plain, speedy, and adequate remedy in the ordinary course of law. On 19 December 1996, this Court (a) required the respondents to comment on the petition within a non-extendible period of ten days from notice; and (b) issued a temporary restraining order, effective immediately and continuing until further orders, enjoining public respondent COMELEC from proceeding with the Delfin Petition, and private respondents Alberto and Carmen Pedrosa from conducting a signature drive for people's initiative to amend the Constitution. On 2 January 1997, private respondents, through Atty Quadra, filed their Comment 15 on the petition. They argue therein that: 1. IT IS NOT TRUE THAT "IT WOULD ENTAIL EXPENSES TO THE NATIONAL TREASURY FOR GENERAL REGISTRATION OF VOTERS AMOUNTING TO AT LEAST PESOS: ONE HUNDRED EIGHTY MILLION (P180,000,000.00)" IF THE "COMELEC GRANTS THE PETITION FILED BY RESPONDENT DELFIN BEFORE THE COMELEC. 2. NOT A SINGLE CENTAVO WOULD BE SPENT BY THE NATIONAL GOVERNMENT IF THE COMELEC GRANTS THE PETITION OF RESPONDENT DELFIN. ALL EXPENSES IN THE SIGNATURE GATHERING ARE ALL FOR THE ACCOUNT OF RESPONDENT DELFIN AND HIS VOLUNTEERS PER THEIR PROGRAM OF ACTIVITIES AND EXPENDITURES SUBMITTED TO THE COMELEC. THE ESTIMATED COST OF THE DAILY PER DIEM OF THE SUPERVISING SCHOOL TEACHERS IN THE SIGNATURE GATHERING TO BE DEPOSITED and TO BE PAID BY DELFIN AND HIS VOLUNTEERS IS P2,571,200.00; 3. THE PENDING PETITION BEFORE THE COMELEC IS ONLY ON THE SIGNATURE GATHERING WHICH BY LAW COMELEC IS DUTY BOUND "TO SUPERVISE CLOSELY" PURSUANT TO ITS "INITIATORY JURISDICTION" UPHELD BY THE HONORABLE COURT IN ITS RECENT SEPTEMBER 26, 1996 DECISION IN THE CASE OF SUBIC BAY METROPOLITAN AUTHORITY VS. COMELEC, ET AL. G.R. NO. 125416; 4. REP. ACT NO. 6735 APPROVED ON AUGUST 4, 1989 IS THE ENABLING LAW IMPLEMENTING THE POWER OF PEOPLE INITIATIVE TO PROPOSE AMENDMENTS TO THE CONSTITUTION. SENATOR DEFENSOR-SANTIAGO'S SENATE BILL NO. 1290 IS A DUPLICATION OF WHAT ARE ALREADY PROVIDED FOR IN REP. ACT NO. 6735; 5. COMELEC RESOLUTION NO. 2300 PROMULGATED ON JANUARY 16, 1991 PURSUANT TO REP. ACT 6735 WAS UPHELD BY THE HONORABLE COURT IN THE RECENT SEPTEMBER 26, 1996 DECISION IN THE CASE OF SUBIC BAY METROPOLITAN AUTHORITY VS. COMELEC, ET AL. G.R. NO. 125416 WHERE THE HONORABLE COURT SAID: "THE COMMISSION ON ELECTIONS CAN DO NO LESS BY SEASONABLY AND JUDICIOUSLY PROMULGATING GUIDELINES AND RULES FOR BOTH NATIONAL AND LOCAL USE, IN IMPLEMENTING OF THESE LAWS."

6. EVEN SENATOR DEFENSOR-SANTIAGO'S SENATE BILL NO. 1290 CONTAINS A PROVISION DELEGATING TO THE COMELEC THE POWER TO "PROMULGATE SUCH RULES AND REGULATIONS AS MAY BE NECESSARY TO CARRY OUT THE PURPOSES OF THIS ACT." (SEC. 12, S.B. NO. 1290, ENCLOSED AS ANNEX E, PETITION); 7. THE LIFTING OF THE LIMITATION ON THE TERM OF OFFICE OF ELECTIVE OFFICIALS PROVIDED UNDER THE 1987 CONSTITUTION IS NOT A "REVISION" OF THE CONSTITUTION. IT IS ONLY AN AMENDMENT. "AMENDMENT ENVISAGES AN ALTERATION OF ONE OR A FEW SPECIFIC PROVISIONS OF THE CONSTITUTION. REVISION CONTEMPLATES A RE-EXAMINATION OF THE ENTIRE DOCUMENT TO DETERMINE HOW AND TO WHAT EXTENT IT SHOULD BE ALTERED." (PP. 412-413, 2ND. ED. 1992, 1097 PHIL. CONSTITUTION, BY JOAQUIN G. BERNAS, S.J.). Also on 2 January 1997, private respondent Delfin filed in his own behalf a Comment 16 which starts off with an assertion that the instant petition is a "kneejerk reaction to a draft 'Petition for Initiative on the 1987 Constitution'. . . which is not formally filed yet." What he filed on 6 December 1996 was an "Initiatory Pleading" or "Initiatory Petition," which was legally necessary to start the signature campaign to amend the Constitution or to put the movement to gather signatures under COMELEC power and function. On the substantive allegations of the petitioners, Delfin maintains as follows: (1) Contrary to the claim of the petitioners, there is a law, R.A. No. 6735, which governs the conduct of initiative to amend the Constitution. The absence therein of a subtitle for such initiative is not fatal, since subtitles are not requirements for the validity or sufficiency of laws. (2) Section 9(b) of R.A. No. 6735 specifically provides that the proposition in an initiative to amend the Constitution approved by the majority of the votes cast in the plebiscite shall become effective as of the day of the plebiscite. (3) The claim that COMELEC Resolution No. 2300 is ultra vires is contradicted by (a) Section 2, Article IX-C of the Constitution, which grants the COMELEC the power to enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall; and (b) Section 20 of R.A. 6735, which empowers the COMELEC to promulgate such rules and regulations as may be necessary to carry out the purposes of the Act. (4) The proposed initiative does not involve a revision of, but mere amendment to, the Constitution because it seeks to alter only a few specific provisions of the Constitution, or more specifically, only those which lay term limits. It does not seek to reexamine or overhaul the entire document. As to the public expenditures for registration of voters, Delfin considers petitioners' estimate of P180 million as unreliable, for only the COMELEC can give the exact figure. Besides, if there will be a plebiscite it will be simultaneous with the 1997 Barangay Elections. In any event, fund requirements for initiative will be a priority

government expense because it will be for the exercise of the sovereign power of the people. In the Comment 17 for the public respondent COMELEC, filed also on 2 January 1997, the Office of the Solicitor General contends that: (1) R.A. No. 6735 deals with, inter alia, people's initiative to amend the Constitution. Its Section 2 on Statement of Policy explicitly affirms, recognizes, and guarantees that power; and its Section 3, which enumerates the three systems of initiative, includes initiative on the Constitution and defines the same as the power to propose amendments to the Constitution. Likewise, its Section 5 repeatedly mentions initiative on the Constitution. (2) A separate subtitle on initiative on the Constitution is not necessary in R.A. No. 6735 because, being national in scope, that system of initiative is deemed included in the subtitle on National Initiative and Referendum; and Senator Tolentino simply overlooked pertinent provisions of the law when he claimed that nothing therein was provided for initiative on the Constitution. (3) Senate Bill No. 1290 is neither a competent nor a material proof that R.A. No. 6735 does not deal with initiative on the Constitution. (4) Extension of term limits of elected officials constitutes a mere amendment to the Constitution, not a revision thereof. (5) COMELEC Resolution No. 2300 was validly issued under Section 20 of R.A. No. 6735 and under the Omnibus Election Code. The rule-making power of the COMELEC to implement the provisions of R.A. No. 6735 was in fact upheld by this Court in Subic Bay Metropolitan Authority vs. COMELEC. On 14 January 1997, this Court (a) confirmed nunc pro tunc the temporary restraining order; (b) noted the aforementioned Comments and the Motion to Lift Temporary Restraining Order filed by private respondents through Atty. Quadra, as well as the latter's Manifestation stating that he is the counsel for private respondents Alberto and Carmen Pedrosa only and the Comment he filed was for the Pedrosas; and (c) granted the Motion for Intervention filed on 6 January 1997 by Senator Raul Roco and allowed him to file his Petition in Intervention not later than 20 January 1997; and (d) set the case for hearing on 23 January 1997 at 9:30 a.m. On 17 January 1997, the Demokrasya-Ipagtanggol ang Konstitusyon (DIK) and the Movement of Attorneys for Brotherhood Integrity and Nationalism, Inc. (MABINI), filed a Motion for Intervention. Attached to the motion was their Petition in Intervention, which was later replaced by an Amended Petition in Intervention wherein they contend that: (1) The Delfin proposal does not involve a mere amendment to, but a revision of, the Constitution because, in the words of Fr. Joaquin Bernas, S.J., 18 it would involve a change from a political philosophy that rejects unlimited tenure to one that accepts unlimited tenure; and although the change might appear to be an isolated

one, it can affect other provisions, such as, on synchronization of elections and on the State policy of guaranteeing equal access to opportunities for public service and prohibiting political dynasties. 19 A revision cannot be done by initiative which, by express provision of Section 2 of Article XVII of the Constitution, is limited to amendments. (2) The prohibition against reelection of the President and the limits provided for all other national and local elective officials are based on the philosophy of governance, "to open up the political arena to as many as there are Filipinos qualified to handle the demands of leadership, to break the concentration of political and economic powers in the hands of a few, and to promote effective proper empowerment for participation in policy and decision-making for the common good"; hence, to remove the term limits is to negate and nullify the noble vision of the 1987 Constitution. (3) The Delfin proposal runs counter to the purpose of initiative, particularly in a conflict-of-interest situation. Initiative is intended as a fallback position that may be availed of by the people only if they are dissatisfied with the performance of their elective officials, but not as a premium for good performance. 20 (4) R.A. No. 6735 is deficient and inadequate in itself to be called the enabling law that implements the people's initiative on amendments to the Constitution. It fails to state (a) the proper parties who may file the petition, (b) the appropriate agency before whom the petition is to be filed, (c) the contents of the petition, (d) the publication of the same, (e) the ways and means of gathering the signatures of the voters nationwide and 3% per legislative district, (f) the proper parties who may oppose or question the veracity of the signatures, (g) the role of the COMELEC in the verification of the signatures and the sufficiency of the petition, (h) the appeal from any decision of the COMELEC, (I) the holding of a plebiscite, and (g) the appropriation of funds for such people's initiative. Accordingly, there being no enabling law, the COMELEC has no jurisdiction to hear Delfin's petition. (5) The deficiency of R.A. No. 6735 cannot be rectified or remedied by COMELEC Resolution No. 2300, since the COMELEC is without authority to legislate the procedure for a people's initiative under Section 2 of Article XVII of the Constitution. That function exclusively pertains to Congress. Section 20 of R.A. No. 6735 does not constitute a legal basis for the Resolution, as the former does not set a sufficient standard for a valid delegation of power. On 20 January 1997, Senator Raul Roco filed his Petition in Intervention. 21 He avers that R.A. No. 6735 is the enabling law that implements the people's right to initiate constitutional amendments. This law is a consolidation of Senate Bill No. 17 and House Bill No. 21505; he co-authored the House Bill and even delivered a sponsorship speech thereon. He likewise submits that the COMELEC was empowered under Section 20 of that law to promulgate COMELEC Resolution No. 2300. Nevertheless, he contends that the respondent Commission is without

jurisdiction to take cognizance of the Delfin Petition and to order its publication because the said petition is not the initiatory pleading contemplated under the Constitution, Republic Act No. 6735, and COMELEC Resolution No. 2300. What vests jurisdiction upon the COMELEC in an initiative on the Constitution is the filing of a petition for initiative which is signed by the required number of registered voters. He also submits that the proponents of a constitutional amendment cannot avail of the authority and resources of the COMELEC to assist them is securing the required number of signatures, as the COMELEC's role in an initiative on the Constitution is limited to the determination of the sufficiency of the initiative petition and the call and supervision of a plebiscite, if warranted. On 20 January 1997, LABAN filed a Motion for Leave to Intervene. The following day, the IBP filed a Motion for Intervention to which it attached a Petition in Intervention raising the following arguments: (1) Congress has failed to enact an enabling law mandated under Section 2, Article XVII of the 1987 Constitution. (2) COMELEC Resolution No. 2300 cannot substitute for the required implementing law on the initiative to amend the Constitution. (3) The Petition for Initiative suffers from a fatal defect in that it does not have the required number of signatures. (4) The petition seeks, in effect a revision of the Constitution, which can be proposed only by Congress or a constitutional convention. 22 On 21 January 1997, we promulgated a Resolution (a) granting the Motions for Intervention filed by the DIK and MABINI and by the IBP, as well as the Motion for Leave to Intervene filed by LABAN; (b) admitting the Amended Petition in Intervention of DIK and MABINI, and the Petitions in Intervention of Senator Roco and of the IBP; (c) requiring the respondents to file within a nonextendible period of five days their Consolidated Comments on the aforesaid Petitions in Intervention; and (d) requiring LABAN to file its Petition in Intervention within a nonextendible period of three days from notice, and the respondents to comment thereon within a nonextendible period of five days from receipt of the said Petition in Intervention. At the hearing of the case on 23 January 1997, the parties argued on the following pivotal issues, which the Court formulated in light of the allegations and arguments raised in the pleadings so far filed: 1. Whether R.A. No. 6735, entitled An Act Providing for a System of Initiative and Referendum and Appropriating Funds Therefor, was intended to include or cover initiative on amendments to the Constitution; and if so, whether the Act, as worded, adequately covers such initiative. 2. Whether that portion of COMELEC Resolution No. 2300 (In re: Rules and Regulations Governing the Conduct of Initiative on the Constitution, and Initiative and Referendum on National and Local Laws) regarding the conduct of initiative on

amendments to the Constitution is valid, considering the absence in the law of specific provisions on the conduct of such initiative. 3. Whether the lifting of term limits of elective national and local officials, as proposed in the draft "Petition for Initiative on the 1987 Constitution," would constitute a revision of, or an amendment to, the Constitution. 4. Whether the COMELEC can take cognizance of, or has jurisdiction over, a petition solely intended to obtain an order (a) fixing the time and dates for signature gathering; (b) instructing municipal election officers to assist Delfin's movement and volunteers in establishing signature stations; and (c) directing or causing the publication of, inter alia, the unsigned proposed Petition for Initiative on the 1987 Constitution. 5. Whether it is proper for the Supreme Court to take cognizance of the petition when there is a pending case before the COMELEC. After hearing them on the issues, we required the parties to submit simultaneously their respective memoranda within twenty days and requested intervenor Senator Roco to submit copies of the deliberations on House Bill No. 21505. On 27 January 1997, LABAN filed its Petition in Intervention wherein it adopts the allegations and arguments in the main Petition. It further submits that the COMELEC should have dismissed the Delfin Petition for failure to state a sufficient cause of action and that the Commission's failure or refusal to do so constituted grave abuse of discretion amounting to lack of jurisdiction. On 28 January 1997, Senator Roco submitted copies of portions of both the Journal and the Record of the House of Representatives relating to the deliberations of House Bill No. 21505, as well as the transcripts of stenographic notes on the proceedings of the Bicameral Conference Committee, Committee on Suffrage and Electoral Reforms, of 6 June 1989 on House Bill No. 21505 and Senate Bill No. 17. Private respondents Alberto and Carmen Pedrosa filed their Consolidated Comments on the Petitions in Intervention of Senator Roco, DIK and MABINI, and IBP. 23 The parties thereafter filed, in due time, their separate memoranda. 24 As we stated in the beginning, we resolved to give due course to this special civil action. For a more logical discussion of the formulated issues, we shall first take up the fifth issue which appears to pose a prejudicial procedural question. I THE INSTANT PETITION IS VIABLE DESPITE THE PENDENCY IN THE COMELEC OF THE DELFIN PETITION. Except for the petitioners and intervenor Roco, the parties paid no serious attention to the fifth issue, i.e., whether it is proper for this Court to take cognizance of this special civil action when there is a pending case before the COMELEC. The petitioners provide an affirmative answer. Thus:

28. The Comelec has no jurisdiction to take cognizance of the petition filed by private respondent Delfin. This being so, it becomes imperative to stop the Comelec from proceeding any further, and under the Rules of Court, Rule 65, Section 2, a petition for prohibition is the proper remedy. 29. The writ of prohibition is an extraordinary judicial writ issuing out of a court of superior jurisdiction and directed to an inferior court, for the purpose of preventing the inferior tribunal from usurping a jurisdiction with which it is not legally vested. (People v. Vera, supra., p. 84). In this case the writ is an urgent necessity, in view of the highly divisive and adverse environmental consequences on the body politic of the questioned Comelec order. The consequent climate of legal confusion and political instability begs for judicial statesmanship. 30. In the final analysis, when the system of constitutional law is threatened by the political ambitions of man, only the Supreme Court can save a nation in peril and uphold the paramount majesty of the Constitution. 25 It must be recalled that intervenor Roco filed with the COMELEC a motion to dismiss the Delfin Petition on the ground that the COMELEC has no jurisdiction or authority to entertain the petition. 26 The COMELEC made no ruling thereon evidently because after having heard the arguments of Delfin and the oppositors at the hearing on 12 December 1996, it required them to submit within five days their memoranda or oppositions/memoranda. 27 Earlier, or specifically on 6 December 1996, it practically gave due course to the Delfin Petition by ordering Delfin to cause the publication of the petition, together with the attached Petition for Initiative, the signature form, and the notice of hearing; and by setting the case for hearing. The COMELEC's failure to act on Roco's motion to dismiss and its insistence to hold on to the petition rendered ripe and viable the instant petition under Section 2 of Rule 65 of the Rules of Court, which provides: Sec. 2. Petition for prohibition. — Where the proceedings of any tribunal, corporation, board, or person, whether exercising functions judicial or ministerial, are without or in excess of its or his jurisdiction, or with grave abuse of discretion, and there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court alleging the facts with certainty and praying that judgment be rendered commanding the defendant to desist from further proceedings in the action or matter specified therein. It must also be noted that intervenor Roco claims that the COMELEC has no jurisdiction over the Delfin Petition because the said petition is not supported by the required minimum number of signatures of registered voters. LABAN also asserts that the COMELEC gravely abused its discretion in refusing to dismiss the Delfin Petition, which does not contain the required number of signatures. In light of these claims, the instant case may likewise be treated as a special civil action for certiorari under Section I of Rule 65 of the Rules of Court.

In any event, as correctly pointed out by intervenor Roco in his Memorandum, this Court may brush aside technicalities of procedure in cases of transcendental importance. As we stated in Kilosbayan, Inc. v. Guingona, Jr. 28 A party's standing before this Court is a procedural technicality which it may, in the exercise of its discretion, set aside in view of the importance of issues raised. In the landmark Emergency Powers Cases, this Court brushed aside this technicality because the transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside, if we must, technicalities of procedure. II R.A. NO. 6735 INTENDED TO INCLUDE THE SYSTEM OF INITIATIVE ON AMENDMENTS TO THE CONSTITUTION, BUT IS, UNFORTUNATELY, INADEQUATE TO COVER THAT SYSTEM. Section 2 of Article XVII of the Constitution provides: Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter. The Congress shall provide for the implementation of the exercise of this right. This provision is not self-executory. In his book, 29 Joaquin Bernas, a member of the 1986 Constitutional Commission, stated: Without implementing legislation Section 2 cannot operate. Thus, although this mode of amending the Constitution is a mode of amendment which bypasses congressional action, in the last analysis it still is dependent on congressional action. Bluntly stated, the right of the people to directly propose amendments to the Constitution through the system of initiative would remain entombed in the cold niche of the Constitution until Congress provides for its implementation. Stated otherwise, while the Constitution has recognized or granted that right, the people cannot exercise it if Congress, for whatever reason, does not provide for its implementation. This system of initiative was originally included in Section 1 of the draft Article on Amendment or Revision proposed by the Committee on Amendments and Transitory Provisions of the 1986 Constitutional Commission in its Committee Report No. 7 (Proposed Resolution No. 332). 30 That section reads as follows: Sec. 1. Any amendment to, or revision of, this Constitution may be proposed: (a) by the National Assembly upon a vote of three-fourths of all its members; or (b) by a constitutional convention; or

(c) directly by the people themselves thru initiative as provided for in Article___ Section ___of the Constitution. 31 After several interpellations, but before the period of amendments, the Committee submitted a new formulation of the concept of initiative which it denominated as Section 2; thus: MR. SUAREZ. Thank you, Madam President. May we respectfully call attention of the Members of the Commission that pursuant to the mandate given to us last night, we submitted this afternoon a complete Committee Report No. 7 which embodies the proposed provision governing the matter of initiative. This is now covered by Section 2 of the complete committee report. With the permission of the Members, may I quote Section 2: The people may, after five years from the date of the last plebiscite held, directly propose amendments to this Constitution thru initiative upon petition of at least ten percent of the registered voters. This completes the blanks appearing in the original Committee Report No. 7. 32 The interpellations on Section 2 showed that the details for carrying out Section 2 are left to the legislature. Thus: FR. BERNAS. Madam President, just two simple, clarificatory questions. First, on Section 1 on the matter of initiative upon petition of at least 10 percent, there are no details in the provision  on how to carry this out. Do we understand, therefore, that we are leaving this matter to the legislature? MR. SUAREZ. That is right, Madam President. FR. BERNAS. And do we also understand, therefore, that for as long as the legislature does not pass the necessary implementing law on this, this will not operate? MR. SUAREZ. That matter was also taken up during the committee hearing, especially with respect to the budget appropriations which would have to be legislated so that the plebiscite could be called. We deemed it best that this matter be left to the legislature. The Gentleman is right. In any event, as envisioned, no amendment through the power of initiative can be called until after five years from the date of the ratification of this Constitution. Therefore, the first amendment that could be proposed through the exercise of this initiative power would be after five years. It is reasonably expected that within that five-year period, the National Assembly can come up with the appropriate rules governing the exercise of this power. FR. BERNAS. Since the matter is left to the legislature — the details on how this is to be carried out — is it possible that, in effect, what will be presented to the people for ratification is the work of the legislature rather than of the people? Does this provision exclude that possibility? MR. SUAREZ. No, it does not exclude that possibility because even the legislature itself as a body could propose that amendment, maybe individually or collectively, if

it fails to muster the three-fourths vote in order to constitute itself as a constituent assembly and submit that proposal to the people for ratification through the process of an initiative. x x x           x x x          x x x MS. AQUINO. Do I understand from the sponsor that the intention in the proposal is to vest constituent power in the people to amend the Constitution? MR. SUAREZ. That is absolutely correct, Madam President. MS. AQUINO. I fully concur with the underlying precept of the proposal in terms of institutionalizing popular participation in the drafting of the Constitution or in the amendment thereof, but I would have a lot of difficulties in terms of accepting the draft of Section 2, as written. Would the sponsor agree with me that in the hierarchy of legal mandate, constituent power has primacy over all other legal mandates? MR. SUAREZ. The Commissioner is right, Madam President. MS. AQUINO. And would the sponsor agree with me that in the hierarchy of legal values, the Constitution is source of all legal mandates and that therefore we require a great deal of circumspection in the drafting and in the amendments of the Constitution? MR. SUAREZ. That proposition is nondebatable. MS. AQUINO. Such that in order to underscore the primacy of constituent power we have a separate article in the constitution that would specifically cover the process and the modes of amending the Constitution? MR. SUAREZ. That is right, Madam President. MS. AQUINO. Therefore, is the sponsor inclined, as the provisions are drafted now, to again concede to the legislature the process or the requirement of determining the mechanics of amending the Constitution by people's initiative? MR. SUAREZ. The matter of implementing this could very well be placed in the hands of the National Assembly, not unless we can incorporate into this provision the mechanics that would adequately cover all the conceivable situations. 33 It was made clear during the interpellations that the aforementioned Section 2 is limited to proposals to AMEND — not to REVISE — the Constitution; thus: MR. SUAREZ. . . . This proposal was suggested on the theory that this matter of initiative, which came about because of the extraordinary developments this year, has to be separated from the traditional modes of amending the Constitution as embodied in Section 1. The committee members felt that this system of initiative should not extend to the revision of the entire Constitution, so we removed it from the operation of Section 1 of the proposed Article on Amendment or Revision. 34 x x x           x x x          x x x MS. AQUINO. In which case, I am seriously bothered by providing this process of initiative as a separate section in the Article on Amendment. Would the sponsor be amenable to accepting an amendment in terms of realigning Section 2 as another

subparagraph (c) of Section 1, instead of setting it up as another separate section as if it were a self-executing provision? MR. SUAREZ. We would be amenable except that, as we clarified a while ago, this process of initiative is limited to the matter of amendment and should not expand into a revision which contemplates a total overhaul of the Constitution. That was the sense that was conveyed by the Committee. MS. AQUINO. In other words, the Committee was attempting to distinguish the coverage of modes (a) and (b) in Section 1 to include the process of revision; whereas the process of initiation to amend, which is given to the public, would only apply to amendments? MR. SUAREZ. That is right. Those were the terms envisioned in the Committee. 35 Amendments to the proposed Section 2 were thereafter introduced by then Commissioner Hilario G. Davide, Jr., which the Committee accepted. Thus: MR. DAVIDE. Thank you Madam President. I propose to substitute the entire Section 2 with the following: MR. DAVIDE. Madam President, I have modified the proposed amendment after taking into account the modifications submitted by the sponsor himself and the honorable Commissioners Guingona, Monsod, Rama, Ople, de los Reyes and Romulo. The modified amendment in substitution of the proposed Section 2 will now read as follows: "SECTION 2. — AMENDMENTS TO THIS CONSTITUTION MAY LIKEWISE BE DIRECTLY PROPOSED BY THE PEOPLE THROUGH INITIATIVE UPON A PETITION OF AT LEAST TWELVE PERCENT OF THE TOTAL NUMBER Of REGISTERED VOTERS, OF WHICH EVERY LEGISLATIVE DISTRICT MUST BE REPRESENTED BY AT LEAST THREE PERCENT OF THE REGISTERED VOTERS THEREOF. NO AMENDMENT UNDER THIS SECTION SHALL BE AUTHORIZED WITHIN FIVE YEARS FOLLOWING THE RATIFICATION OF THIS CONSTITUTION NOR OFTENER THAN ONCE EVERY FIVE YEARS THEREAFTER. THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT. MR. SUAREZ. Madam President, considering that the proposed amendment is reflective of the sense contained in Section 2 of our completed Committee Report No. 7, we accept the proposed amendment. 36 The interpellations which ensued on the proposed modified amendment to Section 2 clearly showed that it was a legislative act which must implement the exercise of the right. Thus: MR. ROMULO. Under Commissioner Davide's amendment, is it possible for the legislature to set forth certain procedures to carry out the initiative. . .? MR. DAVIDE. It can. x x x           x x x          x x x MR. ROMULO. But the Commissioner's amendment does not prevent the legislature from asking another body to set the proposition in proper form.

MR. DAVIDE. The Commissioner is correct. In other words, the implementation of this particular right would be subject to legislation, provided the legislature cannot determine anymore the percentage of the requirement. MR. ROMULO. But the procedures, including the determination of the proper form for submission to the people, may be subject to legislation. MR. DAVIDE. As long as it will not destroy the substantive right to initiate. In other words, none of the procedures to be proposed by the legislative body must diminish or impair the right conceded here. MR. ROMULO. In that provision of the Constitution can the procedures which I have discussed be legislated? MR. DAVIDE. Yes. 37 Commissioner Davide also reaffirmed that his modified amendment strictly confines initiative to AMENDMENTS to — NOT REVISION of — the Constitution. Thus: MR. DAVIDE. With pleasure, Madam President. MR. MAAMBONG. My first question: Commissioner Davide's proposed amendment on line 1 refers to "amendment." Does it not cover the word "revision" as defined by Commissioner Padilla when he made the distinction between the words "amendments" and "revision"? MR. DAVIDE. No, it does not, because "amendments" and "revision" should be covered by Section 1. So insofar as initiative is concerned, it can only relate to "amendments" not "revision." 38 Commissioner Davide further emphasized that the process of proposing amendments through initiative must be more rigorous and difficult than the initiative on legislation. Thus: MR. DAVIDE. A distinction has to be made that under this proposal, what is involved is an amendment to the Constitution. To amend a Constitution would ordinarily require a proposal by the National Assembly by a vote of three-fourths; and to call a constitutional convention would require a higher number. Moreover, just to submit the issue of calling a constitutional convention, a majority of the National Assembly is required, the import being that the process of amendment must be made more rigorous and difficult than probably initiating an ordinary legislation or putting an end to a law proposed by the National Assembly by way of a referendum. I cannot agree to reducing the requirement approved by the Committee on the Legislative because it would require another voting by the Committee, and the voting as precisely based on a requirement of 10 percent. Perhaps, I might present such a proposal, by way of an amendment, when the Commission shall take up the Article on the Legislative or on the National Assembly on plenary sessions. 39 The Davide modified amendments to Section 2 were subjected to amendments, and the final version, which the Commission approved by a vote of 31 in favor and 3 against, reads as follows:

MR. DAVIDE. Thank you Madam President. Section 2, as amended, reads as follows: "AMENDMENT TO THIS CONSTITUTION MAY LIKEWISE BE DIRECTLY PROPOSED BY THE PEOPLE THROUGH INITIATIVE UPON A PETITION OF AT LEAST TWELVE PERCENT OF THE TOTAL NUMBER OF REGISTERED VOTERS, OF WHICH EVERY LEGISLATIVE DISTRICT MUST BE REPRESENTED BY AT LEAST THREE PERCENT OF THE REGISTERED VOTERS THEREOF. NO AMENDMENT UNDER THIS SECTION SHALL BE AUTHORIZED WITHIN FIVE YEARS FOLLOWING THE RATIFICATION OF THIS CONSTITUTION NOR OFTENER THAN ONCE EVERY FIVE YEARS THEREAFTER. THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT. 40 The entire proposed Article on Amendments or Revisions was approved on second reading on 9 July 1986. 41 Thereafter, upon his motion for reconsideration, Commissioner Gascon was allowed to introduce an amendment to Section 2 which, nevertheless, was withdrawn. In view thereof, the Article was again approved on Second and Third Readings on 1 August 1986. 42 However, the Committee on Style recommended that the approved Section 2 be amended by changing "percent" to "per centum" and "thereof" to "therein" and deleting the phrase "by law" in the second paragraph so that said paragraph reads: The Congress 43 shall provide for the implementation of the exercise of this right. 44 This amendment was approved and is the text of the present second paragraph of Section 2. The conclusion then is inevitable that, indeed, the system of initiative on the Constitution under Section 2 of Article XVII of the Constitution is not self-executory. Has Congress "provided" for the implementation of the exercise of this right? Those who answer the question in the affirmative, like the private respondents and intervenor Senator Roco, point to us R.A. No. 6735. There is, of course, no other better way for Congress to implement the exercise of the right than through the passage of a statute or legislative act. This is the essence or rationale of the last minute amendment by the Constitutional Commission to substitute the last paragraph of Section 2 of Article XVII then reading: The Congress 45 shall by law provide for the implementation of the exercise of this right. with The Congress shall provide for the implementation of the exercise of this right. This substitute amendment was an investiture on Congress of a power to provide for the rules implementing the exercise of the right. The "rules" means "the details on how [the right] is to be carried out." 46 We agree that R.A. No. 6735 was, as its history reveals, intended to cover initiative to propose amendments to the Constitution. The Act is a consolidation of House Bill No. 21505 and Senate Bill No. 17. The former was prepared by the Committee on Suffrage and Electoral Reforms of the House of

Representatives on the basis of two House Bills referred to it, viz., (a) House Bill No. 497, 47 which dealt with the initiative and referendum mentioned in Sections 1 and 32 of Article VI of the Constitution; and (b) House Bill No. 988, 48 which dealt with the subject matter of House Bill No. 497, as well as with initiative and referendum under Section 3 of Article X (Local Government) and initiative provided for in Section 2 of Article XVII of the Constitution. Senate Bill No. 17 49 solely dealt with initiative and referendum concerning ordinances or resolutions of local government units. The Bicameral Conference Committee consolidated Senate Bill No. 17 and House Bill No. 21505 into a draft bill, which was subsequently approved on 8 June 1989 by the Senate 50 and by the House of Representatives. 51 This approved bill is now R.A. No. 6735. But is R.A. No. 6735 a full compliance with the power and duty of Congress to "provide for the implementation of the exercise of the right?" A careful scrutiny of the Act yields a negative answer. First. Contrary to the assertion of public respondent COMELEC, Section 2 of the Act does not suggest an initiative on amendments to the Constitution. The said section reads: Sec. 2. Statement and Policy. — The power of the people under a system of initiative and referendum to directly propose, enact, approve or reject, in whole or in part, the Constitution, laws, ordinances, or resolutions passed by any legislative body upon compliance with the requirements of this Act is hereby affirmed, recognized and guaranteed. (Emphasis supplied). The inclusion of the word "Constitution" therein was a delayed afterthought. That word is neither germane nor relevant to said section, which exclusively relates to initiative and referendum on national laws and local laws, ordinances, and resolutions. That section is silent as to amendments on the Constitution. As pointed out earlier, initiative on the Constitution is confined only to proposals to AMEND. The people are not accorded the power to "directly propose, enact, approve, or reject, in whole or in part, the Constitution" through the system of initiative. They can only do so with respect to "laws, ordinances, or resolutions." The foregoing conclusion is further buttressed by the fact that this section was lifted from Section 1 of Senate Bill No. 17, which solely referred to a statement of policy on local initiative and referendum and appropriately used the phrases "propose and enact," "approve or reject" and "in whole or in part." 52 Second. It is true that Section 3 (Definition of Terms) of the Act defines initiative on amendments to the Constitution and mentions it as one of the three systems of initiative, and that Section 5 (Requirements) restates the constitutional requirements as to the percentage of the registered voters who must submit the proposal. But unlike in the case of the other systems of initiative, the Act does not provide for the contents of a petition for initiative on the Constitution. Section 5, paragraph (c) requires, among other things, statement of the  proposed law sought

to be enacted, approved or rejected, amended or repealed, as the case may be. It does not include, as among the contents of the petition, the provisions of the Constitution sought to be amended, in the case of initiative on the Constitution. Said paragraph (c) reads in full as follows: (c) The petition shall state the following: c.1 contents or text of the proposed law sought to be enacted, approved or rejected, amended or repealed, as the case may be; c.2 the proposition; c.3 the reason or reasons therefor; c.4 that it is not one of the exceptions provided therein; c.5 signatures of the petitioners or registered voters; and c.6 an abstract or summary proposition is not more than one hundred (100) words which shall be legibly written or printed at the top of every page of the petition. (Emphasis supplied). The use of the clause "proposed laws sought to be enacted, approved or rejected, amended or repealed" only strengthens the conclusion that Section 2, quoted earlier, excludes initiative on amendments to the Constitution. Third. While the Act provides subtitles for National Initiative and Referendum (Subtitle II) and for Local Initiative and Referendum (Subtitle III), no subtitle is provided for initiative on the Constitution. This conspicuous silence as to the latter simply means that the main thrust of the Act is initiative and referendum on national and local laws. If Congress intended R.A. No. 6735 to fully provide for the implementation of the initiative on amendments to the Constitution, it could have provided for a subtitle therefor, considering that in the order of things, the primacy of interest, or hierarchy of values, the right of the people to directly propose amendments to the Constitution is far more important than the initiative on national and local laws. We cannot accept the argument that the initiative on amendments to the Constitution is subsumed under the subtitle on National Initiative and Referendum because it is national in scope. Our reading of Subtitle II (National Initiative and Referendum) and Subtitle III (Local Initiative and Referendum) leaves no room for doubt that the classification is not based on the scope of the initiative involved, but on its nature and character. It is "national initiative," if what is proposed to be adopted or enacted is a national law, or a law which only Congress can pass. It is "local initiative" if what is proposed to be adopted or enacted is a law, ordinance, or resolution  which only the legislative bodies of the governments of the autonomous regions, provinces, cities, municipalities, and barangays can pass. This classification of initiative into national and local is actually based on Section 3 of the Act, which we quote for emphasis and clearer understanding: Sec. 3. Definition of terms — x x x           x x x          x x x

There are three (3) systems of initiative, namely: a.1 Initiative on the Constitution which refers to a petition proposing amendments to the Constitution; a.2 Initiative on Statutes which refers to a petition proposing to enact a national legislation; and a.3 Initiative on local legislation which refers to a petition proposing to enact a regional, provincial, city, municipal, or barangay law, resolution or ordinance. (Emphasis supplied). Hence, to complete the classification under subtitles there should have been a subtitle on initiative on amendments to the Constitution. 53 A further examination of the Act even reveals that the subtitling is not accurate. Provisions not germane to the subtitle on National Initiative and Referendum are placed therein, like (1) paragraphs (b) and (c) of Section 9, which reads: (b) The proposition in an initiative on the Constitution approved by the majority of the votes cast in the plebiscite shall become effective as to the day of the plebiscite. (c) A national or local initiative proposition approved by majority of the votes cast in an election called for the purpose shall become effective fifteen (15) days after certification and proclamation of the Commission. (Emphasis supplied). (2) that portion of Section 11 (Indirect Initiative) referring to indirect initiative with the legislative bodies of local governments; thus: Sec. 11. Indirect Initiative. — Any duly accredited people's organization, as defined by law, may file a petition for indirect initiative with the House of Representatives, and other legislative bodies. . . . and (3) Section 12 on Appeal, since it applies to decisions of the COMELEC on the findings of sufficiency or insufficiency of the petition for initiative or referendum, which could be petitions for both national and local initiative and referendum. Upon the other hand, Section 18 on "Authority of Courts" 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: Sec. 18. Authority of Courts. — Nothing in this Act shall prevent or preclude the proper courts from declaring null and void any proposition approved pursuant to this Act for violation of the Constitution or want of capacity of the local legislative body to enact the said measure. Curiously, too, while R.A. No. 6735 exerted utmost diligence and care in providing for the details in the implementation of initiative and referendum on national and local legislation thereby giving them special attention, it failed, rather intentionally, to do so on the system of initiative on amendments to the Constitution. Anent the initiative on national legislation, the Act provides for the following: (a) The required percentage of registered voters to sign the petition and the contents of the petition; (b) The conduct and date of the initiative;

(c) The submission to the electorate of the proposition and the required number of votes for its approval; (d) The certification by the COMELEC of the approval of the proposition; (e) The publication of the approved proposition in the Official Gazette or in a newspaper of general circulation in the Philippines; and (f) The effects of the approval or rejection of the proposition. 55 As regards local initiative, the Act provides for the following: (a) The preliminary requirement as to the number of signatures of registered voters for the petition; (b) The submission of the petition to the local legislative body concerned; (c) The effect of the legislative body's failure to favorably act thereon, and the invocation of the power of initiative as a consequence thereof; (d) The formulation of the proposition; (e) The period within which to gather the signatures; (f) The persons before whom the petition shall be signed; (g) The issuance of a certification by the COMELEC through its official in the local government unit concerned as to whether the required number of signatures have been obtained; (h) The setting of a date by the COMELEC for the submission of the proposition to the registered voters for their approval, which must be within the period specified therein; (i) The issuance of a certification of the result; (j) The date of effectivity of the approved proposition; (k) The limitations on local initiative; and (l) The limitations upon local legislative bodies. 56 Upon the other hand, as to initiative on amendments to the Constitution, R.A. No. 6735, in all of its twenty-three sections, merely (a) mentions, the word "Constitution" in Section 2; (b) defines "initiative on the Constitution" and includes it in the enumeration of the three systems of initiative in Section 3; (c) speaks of "plebiscite" as the process by which the proposition in an initiative on the Constitution may be approved or rejected by the people; (d) reiterates the constitutional requirements as to the number of voters who should sign the petition; and (e) provides for the date of effectivity of the approved proposition. There was, therefore, an obvious downgrading of the more important or the paramount system of initiative. RA. No. 6735 thus delivered a humiliating blow to the system of initiative on amendments to the Constitution by merely paying it a reluctant lip service. 57 The foregoing brings us to the conclusion that R.A. No. 6735 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 matter are fatal and cannot be cured by "empowering" the COMELEC "to

promulgate such rules and regulations as may be necessary to carry out the purposes of [the] Act. 58 The rule is that what has been delegated, cannot be delegated or as expressed in a Latin maxim: potestas delegata non delegari potest. 59 The recognized exceptions to the rule are as follows: (1) Delegation of tariff powers to the President under Section 28(2) of Article VI of the Constitution; (2) Delegation of emergency powers to the President under Section 23(2) of Article VI of the Constitution; (3) Delegation to the people at large; (4) Delegation to local governments; and (5) Delegation to administrative bodies. 60 Empowering the COMELEC, an administrative body exercising quasi-judicial functions, to promulgate rules and regulations is a form of delegation of legislative authority under no. 5 above. However, in every case of permissible delegation, there must be a showing that the delegation itself is valid. It is valid only if the law (a) is complete in itself, setting forth therein the policy to be executed, carried out, or implemented by the delegate; and (b) fixes a standard — the limits of which are sufficiently determinate and determinable — to which the delegate must conform in the performance of his functions. 61 A sufficient standard is one which defines legislative policy, marks its limits, maps out its boundaries and specifies the public agency to apply it. It indicates the circumstances under which the legislative command is to be effected. 62 Insofar as initiative to propose amendments to the Constitution is concerned, R.A. No. 6735 miserably failed to satisfy both requirements in subordinate legislation. The delegation of the power to the COMELEC is then invalid. III COMELEC RESOLUTION NO. 2300, INSOFAR AS IT PRESCRIBES RULES AND REGULATIONS ON THE CONDUCT OF INITIATIVE ON AMENDMENTS TO THE CONSTITUTION, IS VOID. It logically follows that the COMELEC cannot validly promulgate rules and regulations to implement the exercise of the right of the people to directly propose amendments to the Constitution through the system of initiative. It does not have that power under R.A. No. 6735. Reliance on the COMELEC's power under Section 2(1) of Article IX-C of the Constitution is misplaced, for the laws and regulations referred to therein are those promulgated by the COMELEC under (a) Section 3 of Article IX-C of the Constitution, or (b) a law where subordinate legislation is authorized and which satisfies the "completeness" and the "sufficient standard" tests. IV

COMELEC ACTED WITHOUT JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION IN ENTERTAINING THE DELFIN PETITION. Even if it be conceded ex gratia that R.A. No. 6735 is a full compliance with the power of Congress to implement the right to initiate constitutional amendments, or that it has validly vested upon the COMELEC the power of subordinate legislation and that COMELEC Resolution No. 2300 is valid, the COMELEC acted without jurisdiction or with grave abuse of discretion in entertaining the Delfin Petition. Under Section 2 of Article XVII of the Constitution and Section 5(b) of R.A. No. 6735, a petition for initiative on the Constitution must be signed by at least 12% of the total number of registered voters of which every legislative district is represented by at least 3% of the registered voters therein. The Delfin Petition does not contain signatures of the required number of voters. Delfin himself admits that he has not yet gathered signatures and that the purpose of his petition is primarily to obtain assistance in his drive to gather signatures. Without the required signatures, the petition cannot be deemed validly initiated. The COMELEC acquires jurisdiction over a petition for initiative only after its filing. The petition then is the initiatory pleading. Nothing before its filing is cognizable by the COMELEC, sitting en banc. The only participation of the COMELEC or its personnel before the filing of such petition are (1) to prescribe the form of the petition; 63 (2) to issue through its Election Records and Statistics Office a certificate on the total number of registered voters in each legislative district; 64 (3) to assist, through its election registrars, in the establishment of signature stations; 65 and (4) to verify, through its election registrars, the signatures on the basis of the registry list of voters, voters' affidavits, and voters' identification cards used in the immediately preceding election. 66 Since the Delfin Petition is not the initiatory petition under R.A. No. 6735 and COMELEC Resolution No. 2300, it cannot be entertained or given cognizance of by the COMELEC. The respondent Commission must have known that the petition does not fall under any of the actions or proceedings under the COMELEC Rules of Procedure or under Resolution No. 2300, for which reason it did not assign to the petition a docket number. Hence, the said petition was merely entered as UND, meaning, undocketed. That petition was nothing more than a mere scrap of paper, which should not have been dignified by the Order of 6 December 1996, the hearing on 12 December 1996, and the order directing Delfin and the oppositors to file their memoranda or oppositions. In so dignifying it, the COMELEC acted without jurisdiction or with grave abuse of discretion and merely wasted its time, energy, and resources. The foregoing considered, further discussion on the issue of whether the proposal to lift the term limits of elective national and local officials is an amendment to, and not a revision of, the Constitution is rendered unnecessary, if not academic. CONCLUSION

This petition must then be granted, and the COMELEC should be permanently enjoined from entertaining or taking cognizance of any petition for initiative on amendments to the Constitution until a sufficient law shall have been validly enacted to provide for the implementation of the system. We feel, however, that the system of initiative to propose amendments to the Constitution should no longer be kept in the cold; it should be given flesh and blood, energy and strength. Congress should not tarry any longer in complying with the constitutional mandate to provide for the implementation of the right of the people under that system. WHEREFORE, judgment is hereby rendered a) GRANTING the instant petition; b) DECLARING R.A. No. 6735 inadequate to cover the system of initiative on amendments to the Constitution, and to have failed to provide sufficient standard for subordinate legislation; c) DECLARING void those parts of Resolution No. 2300 of the Commission on Elections prescribing rules and regulations on the conduct of initiative or amendments to the Constitution; and d) ORDERING the Commission on Elections to forthwith DISMISS the DELFIN petition (UND-96-037). The Temporary Restraining Order issued on 18 December 1996 is made permanent as against the Commission on Elections, but is LIFTED as against private respondents. Resolution on the matter of contempt is hereby reserved. SO ORDERED. Narvasa, C.J., Regalado, Romero, Bellosillo, Kapunan, Hermosisima, Jr. and Torres, Jr., JJ., concur. Padilla, J., took no part.   Separate Opinions PUNO, J.,  concurring and dissenting: I join the ground-breaking ponencia of our esteemed colleague, Mr. Justice Davide insofar as it orders the COMELEC to dismiss the Delfin petition. I regret, however, I cannot share the view that R.A. No. 5735 and COMELEC Resolution No. 2300 are legally defective and cannot implement the people's initiative to amend the Constitution. I likewise submit that the petition with respect to the Pedrosas has no leg to stand on and should be dismissed. With due respect: I First, I submit that R.A. No. 6735 sufficiently implements the right of the people to initiate amendments to the Constitution thru initiative. Our effort to discover the

meaning of R.A. No. 6735 should start with the search of the intent of our lawmakers. A knowledge of this intent is critical for the intent of the legislature is the law and the controlling factor in its interpretation.1 Stated otherwise, intent is the essence of the law, the spirit which gives life to its enactment.2 Significantly, the majority decision concedes that ". . . R.A. No. 6735 was intended to cover initiative to propose amendments to the Constitution." It ought to be so for this intent is crystal clear from the history of the law which was a consolidation of House Bill No. 215053 and Senate Bill No. 17.4 Senate Bill No. 17 was entitled "An Act Providing for a System of Initiative and Referendum and the Exception Therefrom, Whereby People in Local Government Units Can Directly Propose and Enact Resolutions and Ordinances or Approve or Reject any Ordinance or Resolution Passed by the Local Legislative Body." Beyond doubt, Senate Bill No. 17 did not include people's initiative to propose amendments to the Constitution. In checkered contrast, House Bill No. 21505 5 expressly included people's initiative to amend the Constitution. Congressman (now Senator) Raul Roco emphasized in his sponsorship remarks:6 xxx xxx xxx SPONSORSHIP REMARKS OF MR. ROCO At the outset, Mr. Roco provided the following backgrounder on the constitutional basis of the proposed measure. 1. As cited in Vera vs. Avelino (1946), the presidential system which was introduced by the 1935 Constitution saw the application of the principle of separation of powers. 2. While under the parliamentary system of the 1973 Constitution the principle remained applicable, the 1981 amendments to the Constitution of 1973 ensured presidential dominance over the Batasang Pambansa. Constitutional history then saw the shifting and sharing of legislative powers between the Legislature and the Executive departments. Transcending changes in the exercise of legislative power is the declaration in the Philippine Constitution that the Philippines is a republican state where sovereignty resides in the people and all sovereignty emanates from them. 3. Under the 1987 Constitution, the lawmaking power is still preserved in Congress; however, to institutionalize direct action of the people as exemplified in the 1986 Revolution, the Constitution recognizes the power of the people, through the system of initiative and referendum. As cited in Section 1, Article VI of the 1987 Constitution, Congress does not have plenary powers since reserve powers are given to the people expressly. Section 32 of the same Article mandates Congress to pass at the soonest possible time, a bill on referendum and initiative, and to share its legislative powers with the people. Section 2, Article XVII of the 1987 Constitution, on the other hand, vests in the people the power to directly propose amendments to the Constitution through

initiative, upon petition of at least 12 percent of the total number of registered voters. Stating that House Bill No. 21505 is the Committee's response to the duty imposed on Congress to implement the exercise by the people of the right to initiative and referendum, Mr. Roco recalled the beginnings of the system of initiative and referendum under Philippine Law. He cited Section 99 of the Local Government Code which vests in the barangay assembly the power to initiate legislative processes, decide the holding of plebiscite and hear reports of the Sangguniang Barangay, all of which are variations of the power of initiative and referendum. He added that the holding of barangay plebiscites and referendum are likewise provided in Sections 100 and 101 of the same Code. Thereupon, for the sake of brevity, Mr. Roco moved that pertinent quotation on the subject which he will later submit to the Secretary of the House be incorporated as part of his sponsorship speech. He then cited examples of initiative and referendum similar to those contained in the instant Bill among which are the constitutions of states in the United States which recognize the right of registered voters to initiate the enactment of any statute or to project any existing law or parts thereof in a referendum. These states, he said, are Alaska, Alabama, Montana, Massachusets, Dakota, Oklahoma, Oregon, and practically all other states. Mr. Roco explained that in certain American states, the kind of laws to which initiative and referendum apply is also without limitation, except for emergency measures, which are likewise incorporated in House Bill No. 21505. He added that the procedure provided by the Bill from the filing of the petition, the requirements of a certain percentage of supporters to present a proposition, to the submission to electors are substantially similar to the provisions in American laws. Although an infant in Philippine political structure, the system of initiative and referendum, he said, is a tried and tested system in other jurisdictions, and the Bill is patterned after American experience. He further explained that the bill has only 12 sections, and recalled that the Constitutional Commissioners saw the system of the initiative and referendum as an instrument which can be used should the legislature show itself to be indifferent to the needs of the people. This is the reason, he claimed, why now is an opportune time to pass the Bill even as he noted the felt necessity of the times to pass laws which are necessary to safeguard individual rights and liberties. At this juncture Mr. Roco explained the process of initiative and referendum as advocated in House Bill No. 21505. He stated that: 1. Initiative means that the people, on their own political judgment, submit a Bill for the consideration of the general electorate.

2. The instant Bill provides three kinds of initiative, namely; the initiative to amend the Constitution once every five years; the initiative to amend statutes approved by Congress; and the initiative to amend local ordinances. 3. The instant Bill gives a definite procedure and allows the Commission on Elections (COMELEC) to define rules and regulations on the power of initiative. 4. Referendum means that the legislators seek the consent of the people on measures that they have approved. 5. Under Section 4 of the Bill the people can initiate a referendum which is a mode of plebiscite by presenting a petition therefor, but under certain limitations, such as the signing of said petition by at least 10 percent of the total of registered voters at which every legislative district is represented by at least three percent of the registered voters thereof. Within 30 days after receipt of the petition, the COMELEC shall determine the sufficiency of the petition, publish the same, and set the date of the referendum within 45 to 90-day period. 6. When the matter under referendum or initiative is approved by the required number of votes, it shall become effective 15 days following the completion of its publication in the Official Gazette. In concluding his sponsorship remarks, Mr. Roco stressed that the Members cannot ignore the people's call for initiative and referendum and urged the Body to approve House Bill No. 21505. At this juncture, Mr. Roco also requested that the prepared text of his speech together with the footnotes be reproduced as part of the Congressional Records. The same sentiment as to the bill's intent to implement people's initiative to amend the Constitution was stressed by then Congressman (now Secretary of Agriculture) Salvador Escudero III in his sponsorship remarks, viz:7 x x x           x x x          x x x SPONSORSHIP REMARKS OF MR. ESCUDERO Mr. Escudero first pointed out that the people have been clamoring for a truly popular democracy ever since, especially in the so-called parliament of the streets. A substantial segment of the population feels, he said, that the form of democracy is there, but not the reality or substance of it because of the increasingly elitist approach of their representatives to the country's problem. Whereupon, Mr. Escudero pointed out that the Constitution has provided a means whereby the people can exercise the reserved power of initiative to propose amendments to the Constitution, and requested that Sections 1 and 32, Article VI; Section 3, Article X; and Section 2, Article XVII of the Constitution be made part of his sponsorship remarks. Mr. Escudero also stressed that an implementing law is needed for the aforecited Constitutional provisions. While the enactment of the Bill will give way to strong competition among cause-oriented and sectoral groups, he continued, it will hasten the politization of the citizenry, aid the government in forming an enlightened

public opinion, and produce more responsive legislation. The passage of the Bill will also give street parliamentarians the opportunity to articulate their ideas in a democratic forum, he added. Mr. Escudero stated that he and Mr. Roco hoped for the early approval of the Bill so that it can be initially used for the Agrarian Reform Law. He said that the passage of House Bill No. 21505 will show that the Members can set aside their personal and political consideration for the greater good of the people. The disagreeing provisions in Senate Bill No. 17 and House Bill No. 21505 were threshed out in a Bicameral Conference Committee.8 In the meeting of the Committee on June 6, 1989,9 the members agreed that the two (2) bills should be consolidated and that the consolidated version should include people's initiative to amend the Constitution as contemplated by House Bill No. 21505. The transcript of the meeting states: x x x           x x x          x x x CHAIRMAN GONZALES. But at any rate, as I have said, because this is new in our political system, the Senate decided on a more cautious approach and limiting it only to the local government units because even with that stage where . . . at least this has been quite popular, ano? It has been attempted on a national basis. Alright. There has not been a single attempt. Now, so, kami limitado doon. And, second, we consider also that it is only fair that the local legislative body should be given a chance to adopt the legislation bill proposed, right? Iyong sinasabing indirect system of initiative. If after all, the local legislative assembly or body is willing to adopt it in full or in toto, there ought to be any reason for initiative, ano for initiative. And, number 3, we feel that there should be some limitation on the frequency with which it should be applied. Number 4, na the people, thru initiative, cannot enact any ordinance that is beyond the scope of authority of the local legislative body, otherwise, my God, mag-aassume sila ng power that is broader and greater than the grant of legislative power to the Sanggunians. And Number 5, because of that, then a proposition which has been the result of a successful initiative can only carry the force and effect of an ordinance and therefore that should not deprive the court of its jurisdiction to declare it null and void for want of authority. Ha, di ba? I mean it is beyond powers of local government units to enact. Iyon ang main essence namin, so we concentrated on that. And that is why . . . so ang sa inyo naman includes iyon sa Constitution, amendment to the Constitution eh . . . national laws. Sa amin, if you insist on that, alright, although we feel na it will in effect become a dead statute. Alright, and we can agree, we can agree. So ang mangyayari dito, and magiging basic nito, let us not discuss anymore kung alin and magiging basic bill, ano, whether it is the Senate Bill or whether it is the House bill. Logically it should be ours sapagkat una iyong sa amin eh. It is one of the first bills approved by the Senate kaya ang number niyan, makikita mo, 17, eh. Huwag na

nating pagusapan. Now, if you insist, really iyong features ng national at saka constitutional, okay. ____ gagawin na natin na consolidation of both bills. HON. ROCO. Yes, we shall consolidate. CHAIRMAN GONZALES. Consolidation of the Senate and House Bill No. so and so. 10 When the consolidated bill was presented to the House for approval, then Congressman Roco upon interpellation by Congressman Rodolfo Albano, again confirmed that it covered people's initiative to amend the Constitution. The record of the House Representative states: 11 x x x           x x x          x x x THE SPEAKER PRO TEMPORE. The Gentleman from Camarines Sur is recognized. MR. ROCO. On the Conference Committee Report on the disagreeing provisions between Senate Bill No. 21505 which refers to the system providing for the initiative and referendum, fundamentally, Mr. Speaker, we consolidated the Senate and the House versions, so both versions are totally intact in the bill. The Senators ironically provided for local initiative and referendum and the House Representatives correctly provided for initiative and referendum on the Constitution and on national legislation. I move that we approve the consolidated bill. MR. ALBANO. Mr. Speaker. THE SPEAKER PRO TEMPORE. What is the pleasure of the Minority Floor Leader? MR. ALBANO. Will the distinguished sponsor answer just a few questions? THE SPEAKER PRO TEMPORE. The Gentlemen will please proceed. MR. ALBANO. I heard the sponsor say that the only difference in the two bills was that in the Senate version there was a provision for local initiative and referendum, whereas the House version has none. MR. ROCO. In fact, the Senate version provide purely for local initiative and referendum, whereas in the House version, we provided purely for national and constitutional legislation. MR. ALBANO. Is it our understanding therefore, that the two provisions were incorporated? MR. ROCO. Yes, Mr. Speaker. MR. ALBANO. So that we will now have a complete initiative and referendum both in the constitutional amendment and national legislation. MR. ROCO. That is correct. MR. ALBANO. And provincial as well as municipal resolutions? MR. ROCO. Down to barangay, Mr. Speaker. MR. ALBANO. And this initiative and referendum is in consonance with the provision of the Constitution whereby it mandates this Congress to enact the enabling law, so that we shall have a system which can be done every five years. Is it five years in the provision of the Constitution?

MR. ROCO. That is correct, Mr. Speaker. For constitutional amendments in the 1987 Constitution, it is every five years. MR. ALBANO. For every five years, Mr. Speaker? MR. ROCO. Within five years, we cannot have multiple initiatives and referenda. MR. ALBANO. Therefore, basically, there was no substantial difference between the two versions? MR. ROCO. The gaps in our bill were filled by the Senate which, as I said earlier, ironically was about local, provincial and municipal legislation. MR. ALBANO. And the two bills were consolidated? MR. ROCO. Yes, Mr. Speaker. MR. ALBANO. Thank you, Mr. Speaker. APPROVAL OF C.C.R. ON S.B. NO. 17 AND H.B. NO. 21505 (The Initiative and Referendum Act) THE SPEAKER PRO TEMPORE. There was a motion to approve this consolidated bill on Senate Bill No. 17 and House Bill No. 21505. Is there any objection? (Silence. The Chair hears none; the motion is approved. Since it is crystalline that the intent of R.A. No. 6735 is to implement the people's initiative to amend the Constitution, it is our bounden duty to interpret the law as it was intended by the legislature. We have ruled that once intent is ascertained, it must be enforced even if it may not be consistent with the strict letter of the law and this ruling is as old as the mountain. We have also held that where a law is susceptible of more than one interpretation, that interpretation which will most tend to effectuate the manifest intent of the legislature will be adopted. 12 The text of R.A. No. 6735 should therefore be reasonably construed to effectuate its intent to implement the people's initiative to amend the Constitution. To be sure, we need not torture the text of said law to reach the conclusion that it implements people's initiative to amend the Constitution. R.A. No. 6735 is replete with references to this prerogative of the people. First, the policy statement declares: Sec. 2. Statement of Policy. — The power of the people under a system of initiative and referendum to directly propose, enact, approve or reject, in whole or in part, the Constitution, laws, ordinances, or resolutions passed by any legislative body upon compliance with the requirements of this Act is hereby affirmed, recognized and guaranteed. (emphasis supplied) Second, the law defines "initiative" as "the power of the people to propose amendments to the constitution or to propose and enact legislations through an election called for the purpose," and "plebiscite" as "the electoral process by which an initiative on the Constitution is approved or rejected by the people. Third, the law provides the requirements for a petition for initiative to amend the Constitution. Section 5(b) states that "(a) petition for an initiative on the 1987

Constitution must have at least twelve  per centum (12%) of the total number of registered voters as signatories, of which every legislative district must be represented by at least three  per centum (3%) of the registered voters therein." It also states that "(i)nitiative on the Constitution may be exercised only after five (5) years from the ratification of the 1987 Constitution and only once every five (5) years thereafter. Finally, R.A. No. 6735 fixes the effectivity date of the amendment. Section 9(b) states that "(t)he proposition in an initiative on the Constitution approved by a majority of the votes cast in the plebiscite shall become effective as to the day of the plebiscite. It is unfortunate that the majority decision resorts to a strained interpretation of R.A. No. 6735 to defeat its intent which it itself concedes is to implement people's initiative to propose amendments to the Constitution. Thus, it laments that the word "Constitution" is neither germane nor relevant to the policy thrust of section 2 and that the statute's subtitling is not accurate. These lapses are to be expected for laws are not always written in impeccable English. Rightly, the Constitution does not require our legislators to be word-smiths with the ability to write bills with poetic commas like Jose Garcia Villa or in lyrical prose like Winston Churchill. But it has always been our good policy not to refuse to effectuate the intent of a law on the ground that it is badly written. As the distinguished Vicente Francisco 13 reminds us: "Many laws contain words which have not been used accurately. But the use of inapt or inaccurate language or words, will not vitiate the statute if the legislative intention can be ascertained. The same is equally true with reference to awkward, slovenly, or ungrammatical expressions, that is, such expressions and words will be construed as carrying the meaning the legislature intended that they bear, although such a construction necessitates a departure from the literal meaning of the words used. In the same vein, the argument that R.A. No. 7535 does not include people's initiative to amend the Constitution simply because it lacks a sub-title on the subject should be given the weight of helium. Again, the hoary rule in statutory construction is that headings prefixed to titles, chapters and sections of a statute may be consulted in aid of interpretation, but inferences drawn therefrom are entitled to very little weight, and they can never control the plain terms of the enacting clauses. 14 All said, it is difficult to agree with the majority decision that refuses to enforce the manifest intent or spirit of R.A. No. 6735 to implement the people's initiative to amend the Constitution. It blatantly disregards the rule cast in concrete that the letter of the law must yield to its spirit for the letter of the law is its body but its spirit is its soul. 15 II

COMELEC Resolution No. 2300, 16 promulgated under the stewardship of Commissioner Haydee Yorac, then its Acting Chairman, spelled out the procedure on how to exercise the people's initiative to amend the Constitution. This is in accord with the delegated power granted by section 20 of R.A. No. 6735 to the COMELEC which expressly states: "The Commission is hereby empowered to promulgate such rules and regulations as may be necessary to carry out the purposes of this Act." By no means can this delegation of power be assailed as infirmed. In the benchmark case of Pelaez v. Auditor General, 17 this Court, thru former Chief Justice Roberto Concepcion laid down the test to determine whether there is undue delegation of legislative power, viz: xxx xxx xxx Although Congress may delegate to another branch of the Government the power to fill details in the execution, enforcement or administration of a law, it is essential, to forestall a violation of the principle of separation of powers, that said law: (a) be complete in itself — it must set forth therein the policy to be executed, carried out or implemented by the delegate — and (b) to fix standard — the limits of which are sufficiently determinate or determinable — to which the delegate must conform in the performance of his functions. Indeed, without a statutory declaration of policy, which is the essence of every law, and, without the aforementioned standard, there would be no means to determine, with reasonable certainty, whether the delegate has acted within or beyond the scope of his authority. Hence, he could thereby arrogate upon himself the power, not only to make the law, but, also — and this is worse — to unmake it, by adopting measures inconsistent with the end sought to be attained by the Act of Congress, thus nullifying the principle of separation of powers and the system of checks and balances, and, consequently, undermining the very foundation of our republican system. Section 68 of the Revised Administrative Code does not meet these well-settled requirements for a valid delegation of the power to fix the details in the enforcement of a law. It does not enunciate any policy to be carried out or implemented by the President. Neither does it give a standard sufficiently precise to avoid the evil effects above referred to. R.A. No. 6735 sufficiently states the policy and the standards to guide the COMELEC in promulgating the law's implementing rules and regulations of the law. As aforestated, section 2 spells out the policy of the law; viz: "The power of the people under a system of initiative and referendum to directly propose, enact, approve or reject, in whole or in part, the Constitution, laws, ordinances, or resolutions passed by any legislative body upon compliance with the requirements of this Act is hereby affirmed, recognized and guaranteed." Spread out all over R.A. No. 6735 are the standards to canalize the delegated power to the COMELEC to promulgate rules and regulations from overflowing. Thus, the law states the number of signatures necessary to start a people's initiative, 18 directs how initiative proceeding is

commenced, 19 what the COMELEC should do upon filing of the petition for initiative, 20 how a proposition is approved, 21 when a plebiscite may be held, 22 when the amendment takes effect 23 and what matters may not be the subject of any initiative. 24 By any measure, these standards are adequate. Former Justice Isagani A. Cruz, similarly elucidated that "a sufficient standard is intended to map out the boundaries of the delegates' authority by defining the legislative policy and indicating the circumstances under which it is to be pursued and effected. The purpose of the sufficient standard is to prevent a total transference of legislative power from the lawmaking body to the delegate." 25 In enacting R.A. No. 6735, it cannot be said that Congress totally transferred its power to enact the law implementing people's initiative to COMELEC. A close look at COMELEC Resolution No. 2300 will show that it merely provided the procedure to effectuate the policy of R.A. No. 6735 giving life to the people's initiative to amend the Constitution. The debates 26 in the Constitutional Commission make it clear that the rules of procedure to enforce the people's initiative can be delegated, thus: MR. ROMULO. Under Commissioner Davide's amendment, it is possible for the legislature to set forth certain procedures to carry out the initiative. . . ? MR. DAVIDE. It can. x x x           x x x          x x x MR. ROMULO. But the Commissioner's amendment does not prevent the legislature from asking another body to set the proposition in proper form. MR. DAVIDE. The Commissioner is correct. In other words, the implementation of this particular right would be subject to legislation, provided the legislature cannot determine anymore the percentage of the requirement. MR. DAVIDE. As long as it will not destroy the substantive right to initiate. In other words, none of the procedures to be proposed by the legislative body must diminish or impair the right conceded here. MR. ROMULO. In that provision of the Constitution can the procedures which I have discussed be legislated? MR. DAVIDE. Yes. In his book, The Intent of the 1986 Constitution Writers, 27 Father Bernas likewise affirmed: "In response to questions of Commissioner Romulo, Davide explained the extent of the power of the legislature over the process: it could for instance, prescribe the 'proper form before (the amendment) is submitted to the people,' it could authorize another body to check the proper form. It could also authorize the COMELEC, for instance, to check the authenticity of the signatures of petitioners. Davide concluded: 'As long as it will not destroy the substantive right to initiate. In other words, none of the procedures to be proposed by the legislative body must diminish or impair the right conceded here.'" Quite clearly, the prohibition against the legislature is to impair the substantive right of the people to initiate amendments to the Constitution. It is not, however, prohibited from legislating the

procedure to enforce the people's right of initiative or to delegate it to another body like the COMELEC with proper standard. A survey of our case law will show that this Court has prudentially refrained from invalidating administrative rules on the ground of lack of adequate legislative standard to guide their promulgation. As aptly perceived by former Justice Cruz, "even if the law itself does not expressly pinpoint the standard, the courts will bend backward to locate the same elsewhere in order to spare the statute, if it can, from constitutional infirmity." 28 He cited the ruling in Hirabayashi v. United States, 29  viz: xxx xxx xxx It is true that the Act does not in terms establish a particular standard to which orders of the military commander are to conform, or require findings to be made as a prerequisite to any order. But the Executive Order, the Proclamations and the statute are not to be read in isolation from each other. They were parts of a single program and must be judged as such. The Act of March 21, 1942, was an adoption by Congress of the Executive Order and of the Proclamations. The Proclamations themselves followed a standard authorized by the Executive Order — the necessity of protecting military resources in the designated areas against espionage and sabotage. In the case at bar, the policy and the standards are bright-lined in R.A. No. 6735. A 20-20 look at the law cannot miss them. They were not written by our legislators in invisible ink. The policy and standards can also be found in no less than section 2, Article XVII of the Constitution on Amendments or Revisions. There is thus no reason to hold that the standards provided for in R.A. No. 6735 are insufficient for in other cases we have upheld as adequate more general standards such as "simplicity and dignity," 30 "public interest," 31 "public welfare," 32 "interest of law and order," 33 "justice and equity,"34 "adequate and efficient instruction," 35 "public safety," 36 "public policy", 37 "greater national interest", 38 "protect the local consumer by stabilizing and subsidizing domestic pump rates", 39 and "promote simplicity, economy and efficiency in government." 40 A due regard and respect to the legislature, a co-equal and coordinate branch of government, should counsel this Court to refrain from refusing to effectuate laws unless they are clearly unconstitutional. III It is also respectfully submitted that the petition should he dismissed with respect to the Pedrosas. The inclusion of the Pedrosas in the petition is utterly baseless. The records show that the case at bar started when respondent Delfin alone and by himself filed with the COMELEC a Petition to Amend the Constitution to Lift Term Limits of Elective Officials by People's Initiative. The Pedrosas did not join the petition. It was Senator Roco who moved to intervene and was allowed to do so by the COMELEC. The petition was heard and before the COMELEC could resolve the Delfin petition, the case at bar was filed by the petitioners with this Court.

Petitioners sued the COMELEC. Jesus Delfin, Alberto Pedrosa and Carmen Pedrosa in their capacities as founding members of the People's Initiative for Reform, Modernization and Action (PIRMA). The suit is an original action for prohibition with prayer for temporary restraining order and/or writ of preliminary injunction. The petition on its face states no cause of action against the Pedrosas. The only allegation against the Pedrosas is that they are founding members of the PIRMA which proposes to undertake the signature drive for people's initiative to amend the Constitution. Strangely, the PIRMA itself as an organization was not impleaded as a respondent. Petitioners then prayed that we order the Pedrosas ". . . to desist from conducting a signature drive for a people's initiative to amend the Constitution." On December 19, 1996, we temporarily enjoined the Pedrosas ". . . from conducting a signature drive for people's initiative to amend the Constitution." It is not enough for the majority to lift the temporary restraining order against the Pedrosas. It should dismiss the petition and all motions for contempt against them without equivocation. One need not draw a picture to impart the proposition that in soliciting signatures to start a people's initiative to amend the Constitution the Pedrosas are not engaged in any criminal act. Their solicitation of signatures is a right guaranteed in black and white by section 2 of Article XVII of the Constitution which provides that ". . . amendments to this Constitution may likewise be directly proposed by the people through initiative. . ." This right springs from the principle proclaimed in section 1, Article II of the Constitution that in a democratic and republican state "sovereignty resides in the people and all government authority emanates from them." The Pedrosas are part of the people and their voice is part of the voice of the people. They may constitute but a particle of our sovereignty but no power can trivialize them for sovereignty is indivisible. But this is not all. Section 16 of Article XIII of the Constitution provides: "The right of the people and their organizations to effective and reasonable participation at all levels of social, political and economic decision-making shall not be abridged. The State shall by law, facilitate the establishment of adequate consultation mechanisms." This is another novel provision of the 1987 Constitution strengthening the sinews of the sovereignty of our people. In soliciting signatures to amend the Constitution, the Pedrosas are participating in the political decisionmaking process of our people. The Constitution says their right cannot be abridged without any ifs and buts. We cannot put a question mark on their right. Over and above these new provisions, the Pedrosas' campaign to amend the Constitution is an exercise of their freedom of speech and expression and their right to petition the government for redress of grievances. We have memorialized this universal right in all our fundamental laws from the Malolos Constitution to the 1987 Constitution. We have iterated and reiterated in our rulings that freedom of speech is a preferred right, the matrix of other important rights of our people.

Undeniably, freedom of speech enervates the essence of the democratic creed of think and let think. For this reason, the Constitution encourages speech even if it protects the speechless. It is thus evident that the right of the Pedrosas to solicit signatures to start a people's initiative to amend the Constitution does not depend on any law, much less on R.A. 6735 or COMELEC Resolution No. 2300. No law, no Constitution can chain the people to an undesirable status quo. To be sure, there are no irrepealable laws just as there are no irrepealable Constitutions. Change is the predicate of progress and we should not fear change. Mankind has long recognized the truism that the only constant in life is change and so should the majority. IV In a stream of cases, this Court has rhapsodized people power as expanded in the 1987 Constitution. On October 5, 1993, we observed that people's might is no longer a myth but an article of faith in our Constitution. 41 On September 30, 1994, we postulated that people power can be trusted to check excesses of government and that any effort to trivialize the effectiveness of people's initiatives ought to be rejected. 42 On September 26, 1996, we pledged that ". . . this Court as a matter of policy and doctrine will exert every effort to nurture, protect and promote their legitimate exercise." 43 Just a few days ago, or on March 11, 1997, by a 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 tribunal of the people. Thus far, we have succeeded in transforming people power from an opaque abstraction to a robust reality. The Constitution calls us to encourage people empowerment to blossom in full. The Court cannot halt any and all signature campaigns to amend the Constitution without setting back the flowering of people empowerment. More important, the Court cannot seal the lips of people who are pro-change but not those who are anti-change without concerting the debate on charter change into a sterile talkaton. Democracy is enlivened by a dialogue and not by a monologue for in a democracy nobody can claim any infallibility. Melo and Mendoza, JJ., concur.   VITUG, J.,  concurring and dissenting: The COMELEC should have dismissed, outrightly, the Delfin Petition. It does seem to me that there is no real exigency on the part of the Court to engross, let alone to commit, itself on all the issues raised and debated upon by the parties. What is 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 Movement for People's Initiative" and seeking through a people initiative certain modifications on the 1987 Constitution, can properly be

regarded and given its due course. The Constitution, relative to any proposed amendment under this method, is explicit. Section 2, Article XVII, thereof provides: Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter. The Congress shall provide for the implementation of the exercise of this right. The Delfin petition is thus utterly deficient. Instead of complying with the constitutional imperatives, the petition would rather have much of its burden passed on, in effect, to the COMELEC. The petition would require COMELEC to schedule "signature gathering all over the country," to cause the necessary publication of the petition "in newspapers of general and local circulation," and to instruct "Municipal Election Registrars in all Regions of the Philippines to assist petitioners and volunteers in establishing signing stations at the time and on the dates designated for the purpose. I submit, even then, that the TRO earlier issued by the Court which, consequentially, is made permanent under the ponencia should be held to cover only the Delfin petition 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 constitutional mandate on people initiative. The distinct greatness of a democratic society is that those who reign are the governed themselves. The postulate is no longer lightly taken as just a perceived myth but a veritable reality. The past has taught us that the vitality of government lies not so much in the strength of those who lead as in the consent of those who are led. The role of free speech is pivotal but it can only have its true meaning if it comes with the correlative end of being heard. Pending a petition for a people's initiative that is sufficient in form and substance, it behooves the Court, I most respectfully submit, to yet refrain from resolving the question of whether or not Republic Act No. 6735 has effectively and sufficiently implemented the Constitutional provision on right of the people to directly propose constitutional amendments. Any opinion or view formulated by the Court at this point would at best be only a non-binding, albeit possibly persuasive, obiter dictum. I vote for granting the instant petition before the Court and for clarifying that the TRO earlier issued by the Court did not prescribe the exercise by the Pedrosas of their right to campaign for constitutional amendments.   FRANCISCO, J.,  dissenting and concurring: There is no question that my esteemed colleague Mr. Justice Davide has prepared a scholarly and well-written ponencia. Nonetheless, I cannot fully subscribe to his

view that R. A. No. 6735 is inadequate to cover the system of initiative on amendments to the Constitution. To begin with, sovereignty under the constitution, resides in the people and all government authority emanates from them.1 Unlike our previous constitutions, the present 1987 Constitution has given more significance to this declaration of principle for the people are now vested with power not only to propose, enact or reject any act or law passed by Congress or by the local legislative body, but to propose amendments to the constitution as well.2 To implement these constitutional edicts, Congress in 1989 enacted Republic Act No. 6735, otherwise known as "The initiative and Referendum Act". This law, to my mind, amply covers an initiative on the constitution. The contrary view maintained by petitioners is based principally on the alleged lack of sub-title in the law on initiative to amend the constitution and on their allegation that: Republic Act No. 6735 provides for the effectivity of the law after publication in print media. [And] [t]his indicates that Republic Act No. 6735 covers only laws and not constitutional amendments, because constitutional amendments take effect upon ratification not after publication.3 which allegation manifests petitioners' selective interpretation of the law, for under Section 9 of Republic Act No. 6735 on the Effectivity of Initiative or Referendum Proposition paragraph (b) thereof is clear in providing that: The proposition in an initiative on the constitution approved by a majority of the votes cast in the plebiscite shall become effective as to the day of the plebiscite. It is a rule that every part of the statute must be interpreted with reference the context, i.e., that every part of the statute must be construed together with the other parts and kept subservient to the general intent of the whole enactment. 4 Thus, the provisions of Republic Act No. 6735 may not be interpreted in isolation. The legislative intent behind every law is to be extracted from the statute as a whole.5 In its definition of terms, Republic Act No. 6735 defines initiative as "the power of the people to propose amendments to the constitution or to propose and enact legislations through an election called for the purpose".6 The same section, in enumerating the three systems of initiative, included an "initiative on the constitution which refers to a petition proposing amendments to the constitution"7 Paragraph (e) again of Section 3 defines "plebiscite" as "the electoral process by which an initiative on the constitution is approved or rejected by the people" And as to the material requirements for an initiative on the Constitution, Section 5(b) distinctly enumerates the following: A petition for an initiative on the 1987 Constitution must have at least twelve  per centum (12%) of the total number of the registered voters as signatories, of which every legislative district must be represented by at least three per centum (3%) of the registered voters therein. Initiative on the constitution may be exercised only

after five (5) years from the ratification of the 1987 Constitution and only once every five years thereafter. These provisions were inserted, on purpose, by Congress the intent being to provide for the implementation of the right to propose an amendment to the Constitution by way of initiative. "A legal provision", the Court has previously said, "must not be construed as to be a useless surplusage, and accordingly, meaningless, in the sense of adding nothing to the law or having no effect whatsoever thereon". 8 That this is the legislative intent is further shown by the deliberations in Congress, thus: . . . More significantly, in the course of the consideration of the Conference Committee Report on the disagreeing provisions of Senate Bill No. 17 and House Bill No. 21505, it was noted: MR. ROCO. On the Conference Committee Report on the disagreeing provisions between Senate Bill No. 17 and the consolidated House Bill No. 21505 which refers to the system providing for the initiative and referendum, fundamentally, Mr. Speaker, we consolidated the Senate and the House versions, so both versions are totally intact in the bill. The Senators ironically provided for local initiative and referendum and the House of Representatives correctly provided for initiative and referendum an the Constitution and on national legislation. I move that we approve the consolidated bill. MR. ALBANO, Mr. Speaker. THE SPEAKER PRO TEMPORE. What is the pleasure of the Minority Floor Leader? MR. ALBANO. Will the distinguished sponsor answer just a few questions? THE SPEAKER PRO TEMPORE. What does the sponsor say? MR. ROCO. Willingly, Mr. Speaker. THE SPEAKER PRO TEMPORE. The Gentleman will please proceed. MR. ALBANO. I heard the sponsor say that the only difference in the two bills was that in the Senate version there was a provision for local initiative and referendum, whereas the House version has none. MR. ROCO. In fact, the Senate version provided purely for local initiative and referendum, whereas in the House version, we provided purely for national and constitutional legislation. MR. ALBANO. Is it our understanding, therefore, that the two provisions were incorporated? MR. ROCO. Yes, Mr. Speaker. MR. ALBANO. So that we will now have a complete initiative and referendum both in the constitutional amendment and national legislation. MR. ROCO. That is correct. MR. ALBANO. And provincial as well as municipal resolutions? MR. ROCO. Down to barangay, Mr. Speaker.

MR. ALBANO. And this initiative and referendum is in consonance with the provision of the Constitution to enact the enabling law, so that we shall have a system which can be done every five years. Is it five years in the provision of the Constitution? MR. ROCO. That is correct, Mr. Speaker. For constitutional amendments to the 1987 Constitution, it is every five years." (Id. [Journal and Record of the House of Representatives], Vol. VIII, 8 June 1989, p. 960; quoted in Garcia v. Comelec, 237 SCRA 279, 292-293 [1994]; emphasis supplied) . . . The Senate version of the Bill may not have comprehended initiatives on the Constitution. When consolidated, though, with the House version of the Bill and as approved and enacted into law, the proposal included initiative on both the Constitution and ordinary laws.9 Clearly then, Republic Act No. 6735 covers an initiative on the constitution. Any other construction as what petitioners foist upon the Court constitute a betrayal of the intent and spirit behind the enactment. At any rate, I agree with the ponencia that the Commission on Elections, at present, cannot take any action (such as those contained in the Commission's orders dated December 6, 9, and 12, 1996 [Annexes B, C and B-1]) indicative of its having already assumed jurisdiction over private respondents' petition. This is so because from the tenor of Section 5 (b) of R.A. No. 6735 it would appear that proof of procurement of the required percentage of registered voters at the time the petition for initiative is filed, is a jurisdictional requirement. Thus: A  petition for an initiative on the 1987 Constitution must have at least twelve  per centum (12%) of the total number of registered voters as signatories, of which every legislative district must be represented by at least three  per centum (3%) of the registered voters therein. Initiative on the Constitution may be exercised only after five (5) years from the ratification of the 1987 Constitution and only once every five (5) years thereafter. Here private respondents' petition is unaccompanied by the required signatures. This defect notwithstanding, it is without prejudice to the refiling of their petition once compliance with the required percentage is satisfactorily shown by private respondents. In the absence, therefore, of an appropriate petition before the Commission on Elections, any determination of whether private respondents' proposal constitutes an amendment or revision is premature. ACCORDINGLY, I take exception to the conclusion reached in the ponencia that R.A. No. 6735 is an "inadequate" legislation to cover a people's initiative to propose amendments to the Constitution. I, however, register my concurrence with the dismissal, in the meantime, of private respondents' petition for initiative before public respondent Commission on Elections until the same be supported by proof of strict compliance with Section 5 (b) of R.A. No. 6735.

Melo and Mendoza, JJ., concur.   PANGANIBAN, J.,  concurring and dissenting: Our distinguished colleague, Mr. Justice Hilario G. Davide Jr., writing for the majority, holds that: (1) The Comelec acted without jurisdiction or with grave abuse of discretion in entertaining the "initiatory" Delfin Petition. (2) While the Constitution allows amendments to "be directly proposed by the people through initiative," there is no implementing law for the purpose. RA 6735 is "incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned." (3) Comelec Resolution No. 2330, "insofar as it prescribes rules and regulations on the conduct of initiative on amendments to the Constitution, is void." I concur with the first item above. Until and unless an initiatory petition can show the required number of signatures — in this case, 12% of all the registered voters in the Philippines with at least 3% in every legislative district — no public funds may be spent and no government resources may be used in an initiative to amend the Constitution. Verily, the Comelec cannot even entertain any petition absent such signatures. However, I dissent most respectfully from the majority's two other rulings. Let me explain. Under the above restrictive holdings espoused by the Court's majority, the Constitution cannot be amended at all through a people's initiative. Not by Delfin, not by Pirma, not by anyone, not even by all the voters of the country acting together. This decision will effectively but unnecessarily curtail, nullify, abrogate and render inutile the people's right to change the basic law.  At the very least, the majority holds the right hostage to congressional discretion on whether to pass a new law to implement it, when there is already one existing at present. This right to amend through initiative, it bears stressing, is guaranteed by Section 2, Article XVII of the Constitution, as follows: Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter. With all due respect, I find the majority's position all too sweeping and all too extremist. It is equivalent to burning the whole house to exterminate the rats, and to killing the patient to relieve him of pain. What Citizen Delfin wants the Comelec to do we should reject. But we should not thereby preempt any future effort to exercise the right of initiative correctly and judiciously. The fact that the Delfin Petition proposes a misuse of initiative does not justify a ban against its proper use.

Indeed, there is a right way to do the right thing at the right time and for the right reason. Taken Together and Interpreted Properly, the Constitution, RA 6735 and Comelec Resolution 2300 Are Sufficient to Implement Constitutional Initiatives While RA 6735 may not be a perfect law, it was — as the majority openly concedes — intended by the legislature to cover and, I respectfully submit, it contains enough provisions to effectuate an initiative on the Constitution.1 I completely agree with the inspired and inspiring opinions of Mr. Justice Reynato S. Puno and Mr. Justice Ricardo J. Francisco that RA 6735, the Roco law on initiative, sufficiently implements the right of the people to initiate amendments to the Constitution. Such views, which I shall no longer repeat nor elaborate on, are thoroughly consistent with this Court's unanimous en banc rulings in Subic Bay Metropolitan Authority vs. Commission on Elections, 2 that "provisions for initiative . . . are (to be) liberally construed to effectuate their purposes, to facilitate and not hamper the exercise by the voters of the rights granted thereby"; and in Garcia vs. Comelec, 3 that any "effort to trivialize the effectiveness of people's initiatives ought to be rejected." No law can completely and absolutely cover all administrative details. In recognition of this, RA 6735 wisely empowered 4 the Commission on Election "to promulgate such rules and regulations as may be necessary to carry out the purposes of this Act." And pursuant thereto, the Comelec issued its Resolution 2300 on 16 January 1991. Such Resolution, by its very words, was promulgated "to govern the conduct of initiative on the Constitution and initiative and referendum on national and local laws," not by the incumbent Commission on Elections but by one then composed of Acting Chairperson Haydee B. Yorac, Comms. Alfredo E. Abueg Jr., Leopoldo L. Africa, Andres R. Flores, Dario C. Rama and Magdara B. Dimaampao. All of these Commissioners who signed Resolution 2300 have retired from the Commission, and thus we cannot ascribe any vile motive unto them, other than an honest, sincere and exemplary effort to give life to a cherished right of our people. The majority argues that while Resolution 2300 is valid in regard to national laws and local legislations, it is void in reference to constitutional amendments. There is no basis for such differentiation. The source of and authority for the Resolution is the same law, RA 6735. I respectfully submit that taken together and interpreted properly and liberally, the Constitution (particularly Art. XVII, Sec. 2), R4 6735 and Comelec Resolution 2300 provide more than sufficient authority to implement, effectuate and realize our people's power to amend the Constitution. Petitioner Delfin and the Pedrosa Spouses Should Not Be Muzzled I am glad the majority decided to heed our plea to lift the temporary restraining order issued by this Court on 18 December 1996 insofar as it prohibited Petitioner Delfin and the Spouses Pedrosa from exercising their right of initiative. In fact, I

believe that such restraining order as against private respondents should not have been issued, in the first place. While I agree that the Comelec should be stopped from using public funds and government resources to help them gather signatures, I firmly believe that this Court has no power to restrain them from exercising their right of initiative. The right to propose amendments to the Constitution is really a species of the right of free speech and free assembly. And certainly, it would be tyrannical and despotic to stop anyone from speaking freely and persuading others to conform to his/her beliefs. As the eminent Voltaire once said, "I may disagree with what you say, but I will defend to the death your right to say it." After all, freedom is not really for the thought we agree with, but as Justice Holmes wrote, "freedom for the thought that we hate."5 Epilogue By way of epilogue, let me stress the guiding tenet of my Separate Opinion. Initiative, like referendum and recall, is a new and treasured feature of the Filipino constitutional system. All three are institutionalized legacies of the world-admired EDSA people power. Like elections and plebiscites, they are hallowed expressions of popular sovereignty. They are sacred democratic rights of our people to be used as their final weapons against political excesses, opportunism, inaction, oppression and misgovernance; as well as their reserved instruments to exact transparency, accountability and faithfulness from their chosen leaders. While on the one hand, their misuse and abuse must be resolutely struck down, on the other, their legitimate exercise should be carefully nurtured and zealously protected. WHEREFORE, I vote to GRANT the petition of Sen. Miriam D. Santiago et al. and to DIRECT Respondent Commission on Elections to DISMISS the Delfin Petition on the ground of prematurity, but not on the other grounds relied upon by the majority. I also vote to LIFT the temporary restraining order issued on 18 December 1996 insofar as it prohibits Jesus Delfin, Alberto Pedrosa and Carmen Pedrosa from exercising their right to free speech in proposing amendments to the Constitution. Melo and Mendoza, JJ., concur. Separate Opinions PUNO, J.,  concurring and dissenting: I join the ground-breaking ponencia of our esteemed colleague, Mr. Justice Davide insofar as it orders the COMELEC to dismiss the Delfin petition. I regret, however, I cannot share the view that R.A. No. 5735 and COMELEC Resolution No. 2300 are legally defective and cannot implement the people's initiative to amend the Constitution. I likewise submit that the petition with respect to the Pedrosas has no leg to stand on and should be dismissed. With due respect: I First, I submit that R.A. No. 6735 sufficiently implements the right of the people to initiate amendments to the Constitution thru initiative. Our effort to discover the

meaning of R.A. No. 6735 should start with the search of the intent of our lawmakers. A knowledge of this intent is critical for the intent of the legislature is the law and the controlling factor in its interpretation.1 Stated otherwise, intent is the essence of the law, the spirit which gives life to its enactment.2 Significantly, the majority decision concedes that ". . . R.A. No. 6735 was intended to cover initiative to propose amendments to the Constitution." It ought to be so for this intent is crystal clear from the history of the law which was a consolidation of House Bill No. 215053 and Senate Bill No. 17.4 Senate Bill No. 17 was entitled "An Act Providing for a System of Initiative and Referendum and the Exception Therefrom, Whereby People in Local Government Units Can Directly Propose and Enact Resolutions and Ordinances or Approve or Reject any Ordinance or Resolution Passed by the Local Legislative Body." Beyond doubt, Senate Bill No. 17 did not include people's initiative to propose amendments to the Constitution. In checkered contrast, House Bill No. 21505 5 expressly included people's initiative to amend the Constitution. Congressman (now Senator) Raul Roco emphasized in his sponsorship remarks:6 xxx xxx xxx SPONSORSHIP REMARKS OF MR. ROCO At the outset, Mr. Roco provided the following backgrounder on the constitutional basis of the proposed measure. 1. As cited in Vera vs. Avelino (1946), the presidential system which was introduced by the 1935 Constitution saw the application of the principle of separation of powers. 2. While under the parliamentary system of the 1973 Constitution the principle remained applicable, the 1981 amendments to the Constitution of 1973 ensured presidential dominance over the Batasang Pambansa. Constitutional history then saw the shifting and sharing of legislative powers between the Legislature and the Executive departments. Transcending changes in the exercise of legislative power is the declaration in the Philippine Constitution that the Philippines is a republican state where sovereignty resides in the people and all sovereignty emanates from them. 3. Under the 1987 Constitution, the lawmaking power is still preserved in Congress; however, to institutionalize direct action of the people as exemplified in the 1986 Revolution, the Constitution recognizes the power of the people, through the system of initiative and referendum. As cited in Section 1, Article VI of the 1987 Constitution, Congress does not have plenary powers since reserve powers are given to the people expressly. Section 32 of the same Article mandates Congress to pass at the soonest possible time, a bill on referendum and initiative, and to share its legislative powers with the people. Section 2, Article XVII of the 1987 Constitution, on the other hand, vests in the people the power to directly propose amendments to the Constitution through

initiative, upon petition of at least 12 percent of the total number of registered voters. Stating that House Bill No. 21505 is the Committee's response to the duty imposed on Congress to implement the exercise by the people of the right to initiative and referendum, Mr. Roco recalled the beginnings of the system of initiative and referendum under Philippine Law. He cited Section 99 of the Local Government Code which vests in the barangay assembly the power to initiate legislative processes, decide the holding of plebiscite and hear reports of the Sangguniang Barangay, all of which are variations of the power of initiative and referendum. He added that the holding of barangay plebiscites and referendum are likewise provided in Sections 100 and 101 of the same Code. Thereupon, for the sake of brevity, Mr. Roco moved that pertinent quotation on the subject which he will later submit to the Secretary of the House be incorporated as part of his sponsorship speech. He then cited examples of initiative and referendum similar to those contained in the instant Bill among which are the constitutions of states in the United States which recognize the right of registered voters to initiate the enactment of any statute or to project any existing law or parts thereof in a referendum. These states, he said, are Alaska, Alabama, Montana, Massachusets, Dakota, Oklahoma, Oregon, and practically all other states. Mr. Roco explained that in certain American states, the kind of laws to which initiative and referendum apply is also without limitation, except for emergency measures, which are likewise incorporated in House Bill No. 21505. He added that the procedure provided by the Bill from the filing of the petition, the requirements of a certain percentage of supporters to present a proposition, to the submission to electors are substantially similar to the provisions in American laws. Although an infant in Philippine political structure, the system of initiative and referendum, he said, is a tried and tested system in other jurisdictions, and the Bill is patterned after American experience. He further explained that the bill has only 12 sections, and recalled that the Constitutional Commissioners saw the system of the initiative and referendum as an instrument which can be used should the legislature show itself to be indifferent to the needs of the people. This is the reason, he claimed, why now is an opportune time to pass the Bill even as he noted the felt necessity of the times to pass laws which are necessary to safeguard individual rights and liberties. At this juncture Mr. Roco explained the process of initiative and referendum as advocated in House Bill No. 21505. He stated that: 1. Initiative means that the people, on their own political judgment, submit a Bill for the consideration of the general electorate.

2. The instant Bill provides three kinds of initiative, namely; the initiative to amend the Constitution once every five years; the initiative to amend statutes approved by Congress; and the initiative to amend local ordinances. 3. The instant Bill gives a definite procedure and allows the Commission on Elections (COMELEC) to define rules and regulations on the power of initiative. 4. Referendum means that the legislators seek the consent of the people on measures that they have approved. 5. Under Section 4 of the Bill the people can initiate a referendum which is a mode of plebiscite by presenting a petition therefor, but under certain limitations, such as the signing of said petition by at least 10 percent of the total of registered voters at which every legislative district is represented by at least three percent of the registered voters thereof. Within 30 days after receipt of the petition, the COMELEC shall determine the sufficiency of the petition, publish the same, and set the date of the referendum within 45 to 90-day period. 6. When the matter under referendum or initiative is approved by the required number of votes, it shall become effective 15 days following the completion of its publication in the Official Gazette. In concluding his sponsorship remarks, Mr. Roco stressed that the Members cannot ignore the people's call for initiative and referendum and urged the Body to approve House Bill No. 21505. At this juncture, Mr. Roco also requested that the prepared text of his speech together with the footnotes be reproduced as part of the Congressional Records. The same sentiment as to the bill's intent to implement people's initiative to amend the Constitution was stressed by then Congressman (now Secretary of Agriculture) Salvador Escudero III in his sponsorship remarks, viz:7 x x x           x x x          x x x SPONSORSHIP REMARKS OF MR. ESCUDERO Mr. Escudero first pointed out that the people have been clamoring for a truly popular democracy ever since, especially in the so-called parliament of the streets. A substantial segment of the population feels, he said, that the form of democracy is there, but not the reality or substance of it because of the increasingly elitist approach of their representatives to the country's problem. Whereupon, Mr. Escudero pointed out that the Constitution has provided a means whereby the people can exercise the reserved power of initiative to propose amendments to the Constitution, and requested that Sections 1 and 32, Article VI; Section 3, Article X; and Section 2, Article XVII of the Constitution be made part of his sponsorship remarks. Mr. Escudero also stressed that an implementing law is needed for the aforecited Constitutional provisions. While the enactment of the Bill will give way to strong competition among cause-oriented and sectoral groups, he continued, it will hasten the politization of the citizenry, aid the government in forming an enlightened

public opinion, and produce more responsive legislation. The passage of the Bill will also give street parliamentarians the opportunity to articulate their ideas in a democratic forum, he added. Mr. Escudero stated that he and Mr. Roco hoped for the early approval of the Bill so that it can be initially used for the Agrarian Reform Law. He said that the passage of House Bill No. 21505 will show that the Members can set aside their personal and political consideration for the greater good of the people. The disagreeing provisions in Senate Bill No. 17 and House Bill No. 21505 were threshed out in a Bicameral Conference Committee.8 In the meeting of the Committee on June 6, 1989,9 the members agreed that the two (2) bills should be consolidated and that the consolidated version should include people's initiative to amend the Constitution as contemplated by House Bill No. 21505. The transcript of the meeting states: x x x           x x x          x x x CHAIRMAN GONZALES. But at any rate, as I have said, because this is new in our political system, the Senate decided on a more cautious approach and limiting it only to the local government units because even with that stage where . . . at least this has been quite popular, ano? It has been attempted on a national basis. Alright. There has not been a single attempt. Now, so, kami limitado doon. And, second, we consider also that it is only fair that the local legislative body should be given a chance to adopt the legislation bill proposed, right? Iyong sinasabing indirect system of initiative. If after all, the local legislative assembly or body is willing to adopt it in full or in toto, there ought to be any reason for initiative, ano for initiative. And, number 3, we feel that there should be some limitation on the frequency with which it should be applied. Number 4, na the people, thru initiative, cannot enact any ordinance that is beyond the scope of authority of the local legislative body, otherwise, my God, mag-aassume sila ng power that is broader and greater than the grant of legislative power to the Sanggunians. And Number 5, because of that, then a proposition which has been the result of a successful initiative can only carry the force and effect of an ordinance and therefore that should not deprive the court of its jurisdiction to declare it null and void for want of authority. Ha, di ba? I mean it is beyond powers of local government units to enact. Iyon ang main essence namin, so we concentrated on that. And that is why . . . so ang sa inyo naman includes iyon sa Constitution, amendment to the Constitution eh . . . national laws. Sa amin, if you insist on that, alright, although we feel na it will in effect become a dead statute. Alright, and we can agree, we can agree. So ang mangyayari dito, and magiging basic nito, let us not discuss anymore kung alin and magiging basic bill, ano, whether it is the Senate Bill or whether it is the House bill. Logically it should be ours sapagkat una iyong sa amin eh. It is one of the first bills approved by the Senate kaya ang number niyan, makikita mo, 17, eh. Huwag na

nating pagusapan. Now, if you insist, really iyong features ng national at saka constitutional, okay. ____ gagawin na natin na consolidation of both bills. HON. ROCO. Yes, we shall consolidate. CHAIRMAN GONZALES. Consolidation of the Senate and House Bill No. so and so. 10 When the consolidated bill was presented to the House for approval, then Congressman Roco upon interpellation by Congressman Rodolfo Albano, again confirmed that it covered people's initiative to amend the Constitution. The record of the House Representative states: 11 x x x           x x x          x x x THE SPEAKER PRO TEMPORE. The Gentleman from Camarines Sur is recognized. MR. ROCO. On the Conference Committee Report on the disagreeing provisions between Senate Bill No. 21505 which refers to the system providing for the initiative and referendum, fundamentally, Mr. Speaker, we consolidated the Senate and the House versions, so both versions are totally intact in the bill. The Senators ironically provided for local initiative and referendum and the House Representatives correctly provided for initiative and referendum on the Constitution and on national legislation. I move that we approve the consolidated bill. MR. ALBANO. Mr. Speaker. THE SPEAKER PRO TEMPORE. What is the pleasure of the Minority Floor Leader? MR. ALBANO. Will the distinguished sponsor answer just a few questions? THE SPEAKER PRO TEMPORE. The Gentlemen will please proceed. MR. ALBANO. I heard the sponsor say that the only difference in the two bills was that in the Senate version there was a provision for local initiative and referendum, whereas the House version has none. MR. ROCO. In fact, the Senate version provide purely for local initiative and referendum, whereas in the House version, we provided purely for national and constitutional legislation. MR. ALBANO. Is it our understanding therefore, that the two provisions were incorporated? MR. ROCO. Yes, Mr. Speaker. MR. ALBANO. So that we will now have a complete initiative and referendum both in the constitutional amendment and national legislation. MR. ROCO. That is correct. MR. ALBANO. And provincial as well as municipal resolutions? MR. ROCO. Down to barangay, Mr. Speaker. MR. ALBANO. And this initiative and referendum is in consonance with the provision of the Constitution whereby it mandates this Congress to enact the enabling law, so that we shall have a system which can be done every five years. Is it five years in the provision of the Constitution?

MR. ROCO. That is correct, Mr. Speaker. For constitutional amendments in the 1987 Constitution, it is every five years. MR. ALBANO. For every five years, Mr. Speaker? MR. ROCO. Within five years, we cannot have multiple initiatives and referenda. MR. ALBANO. Therefore, basically, there was no substantial difference between the two versions? MR. ROCO. The gaps in our bill were filled by the Senate which, as I said earlier, ironically was about local, provincial and municipal legislation. MR. ALBANO. And the two bills were consolidated? MR. ROCO. Yes, Mr. Speaker. MR. ALBANO. Thank you, Mr. Speaker. APPROVAL OF C.C.R. ON S.B. NO. 17 AND H.B. NO. 21505 (The Initiative and Referendum Act) THE SPEAKER PRO TEMPORE. There was a motion to approve this consolidated bill on Senate Bill No. 17 and House Bill No. 21505. Is there any objection? (Silence. The Chair hears none; the motion is approved. Since it is crystalline that the intent of R.A. No. 6735 is to implement the people's initiative to amend the Constitution, it is our bounden duty to interpret the law as it was intended by the legislature. We have ruled that once intent is ascertained, it must be enforced even if it may not be consistent with the strict letter of the law and this ruling is as old as the mountain. We have also held that where a law is susceptible of more than one interpretation, that interpretation which will most tend to effectuate the manifest intent of the legislature will be adopted. 12 The text of R.A. No. 6735 should therefore be reasonably construed to effectuate its intent to implement the people's initiative to amend the Constitution. To be sure, we need not torture the text of said law to reach the conclusion that it implements people's initiative to amend the Constitution. R.A. No. 6735 is replete with references to this prerogative of the people. First, the policy statement declares: Sec. 2. Statement of Policy. — The power of the people under a system of initiative and referendum to directly propose, enact, approve or reject, in whole or in part, the Constitution, laws, ordinances, or resolutions passed by any legislative body upon compliance with the requirements of this Act is hereby affirmed, recognized and guaranteed. (emphasis supplied) Second, the law defines "initiative" as "the power of the people to propose amendments to the constitution or to propose and enact legislations through an election called for the purpose," and "plebiscite" as "the electoral process by which an initiative on the Constitution is approved or rejected by the people. Third, the law provides the requirements for a petition for initiative to amend the Constitution. Section 5(b) states that "(a) petition for an initiative on the 1987

Constitution must have at least twelve  per centum (12%) of the total number of registered voters as signatories, of which every legislative district must be represented by at least three  per centum (3%) of the registered voters therein." It also states that "(i)nitiative on the Constitution may be exercised only after five (5) years from the ratification of the 1987 Constitution and only once every five (5) years thereafter. Finally, R.A. No. 6735 fixes the effectivity date of the amendment. Section 9(b) states that "(t)he proposition in an initiative on the Constitution approved by a majority of the votes cast in the plebiscite shall become effective as to the day of the plebiscite. It is unfortunate that the majority decision resorts to a strained interpretation of R.A. No. 6735 to defeat its intent which it itself concedes is to implement people's initiative to propose amendments to the Constitution. Thus, it laments that the word "Constitution" is neither germane nor relevant to the policy thrust of section 2 and that the statute's subtitling is not accurate. These lapses are to be expected for laws are not always written in impeccable English. Rightly, the Constitution does not require our legislators to be word-smiths with the ability to write bills with poetic commas like Jose Garcia Villa or in lyrical prose like Winston Churchill. But it has always been our good policy not to refuse to effectuate the intent of a law on the ground that it is badly written. As the distinguished Vicente Francisco 13 reminds us: "Many laws contain words which have not been used accurately. But the use of inapt or inaccurate language or words, will not vitiate the statute if the legislative intention can be ascertained. The same is equally true with reference to awkward, slovenly, or ungrammatical expressions, that is, such expressions and words will be construed as carrying the meaning the legislature intended that they bear, although such a construction necessitates a departure from the literal meaning of the words used. In the same vein, the argument that R.A. No. 7535 does not include people's initiative to amend the Constitution simply because it lacks a sub-title on the subject should be given the weight of helium. Again, the hoary rule in statutory construction is that headings prefixed to titles, chapters and sections of a statute may be consulted in aid of interpretation, but inferences drawn therefrom are entitled to very little weight, and they can never control the plain terms of the enacting clauses. 14 All said, it is difficult to agree with the majority decision that refuses to enforce the manifest intent or spirit of R.A. No. 6735 to implement the people's initiative to amend the Constitution. It blatantly disregards the rule cast in concrete that the letter of the law must yield to its spirit for the letter of the law is its body but its spirit is its soul. 15 II

COMELEC Resolution No. 2300, 16 promulgated under the stewardship of Commissioner Haydee Yorac, then its Acting Chairman, spelled out the procedure on how to exercise the people's initiative to amend the Constitution. This is in accord with the delegated power granted by section 20 of R.A. No. 6735 to the COMELEC which expressly states: "The Commission is hereby empowered to promulgate such rules and regulations as may be necessary to carry out the purposes of this Act." By no means can this delegation of power be assailed as infirmed. In the benchmark case of Pelaez v. Auditor General, 17 this Court, thru former Chief Justice Roberto Concepcion laid down the test to determine whether there is undue delegation of legislative power, viz: xxx xxx xxx Although Congress may delegate to another branch of the Government the power to fill details in the execution, enforcement or administration of a law, it is essential, to forestall a violation of the principle of separation of powers, that said law: (a) be complete in itself — it must set forth therein the policy to be executed, carried out or implemented by the delegate — and (b) to fix standard — the limits of which are sufficiently determinate or determinable — to which the delegate must conform in the performance of his functions. Indeed, without a statutory declaration of policy, which is the essence of every law, and, without the aforementioned standard, there would be no means to determine, with reasonable certainty, whether the delegate has acted within or beyond the scope of his authority. Hence, he could thereby arrogate upon himself the power, not only to make the law, but, also — and this is worse — to unmake it, by adopting measures inconsistent with the end sought to be attained by the Act of Congress, thus nullifying the principle of separation of powers and the system of checks and balances, and, consequently, undermining the very foundation of our republican system. Section 68 of the Revised Administrative Code does not meet these well-settled requirements for a valid delegation of the power to fix the details in the enforcement of a law. It does not enunciate any policy to be carried out or implemented by the President. Neither does it give a standard sufficiently precise to avoid the evil effects above referred to. R.A. No. 6735 sufficiently states the policy and the standards to guide the COMELEC in promulgating the law's implementing rules and regulations of the law. As aforestated, section 2 spells out the policy of the law; viz: "The power of the people under a system of initiative and referendum to directly propose, enact, approve or reject, in whole or in part, the Constitution, laws, ordinances, or resolutions passed by any legislative body upon compliance with the requirements of this Act is hereby affirmed, recognized and guaranteed." Spread out all over R.A. No. 6735 are the standards to canalize the delegated power to the COMELEC to promulgate rules and regulations from overflowing. Thus, the law states the number of signatures necessary to start a people's initiative, 18 directs how initiative proceeding is

commenced, 19 what the COMELEC should do upon filing of the petition for initiative, 20 how a proposition is approved, 21 when a plebiscite may be held, 22 when the amendment takes effect 23 and what matters may not be the subject of any initiative. 24 By any measure, these standards are adequate. Former Justice Isagani A. Cruz, similarly elucidated that "a sufficient standard is intended to map out the boundaries of the delegates' authority by defining the legislative policy and indicating the circumstances under which it is to be pursued and effected. The purpose of the sufficient standard is to prevent a total transference of legislative power from the lawmaking body to the delegate." 25 In enacting R.A. No. 6735, it cannot be said that Congress totally transferred its power to enact the law implementing people's initiative to COMELEC. A close look at COMELEC Resolution No. 2300 will show that it merely provided the procedure to effectuate the policy of R.A. No. 6735 giving life to the people's initiative to amend the Constitution. The debates 26 in the Constitutional Commission make it clear that the rules of procedure to enforce the people's initiative can be delegated, thus: MR. ROMULO. Under Commissioner Davide's amendment, it is possible for the legislature to set forth certain procedures to carry out the initiative. . . ? MR. DAVIDE. It can. x x x           x x x          x x x MR. ROMULO. But the Commissioner's amendment does not prevent the legislature from asking another body to set the proposition in proper form. MR. DAVIDE. The Commissioner is correct. In other words, the implementation of this particular right would be subject to legislation, provided the legislature cannot determine anymore the percentage of the requirement. MR. DAVIDE. As long as it will not destroy the substantive right to initiate. In other words, none of the procedures to be proposed by the legislative body must diminish or impair the right conceded here. MR. ROMULO. In that provision of the Constitution can the procedures which I have discussed be legislated? MR. DAVIDE. Yes. In his book, The Intent of the 1986 Constitution Writers, 27 Father Bernas likewise affirmed: "In response to questions of Commissioner Romulo, Davide explained the extent of the power of the legislature over the process: it could for instance, prescribe the 'proper form before (the amendment) is submitted to the people,' it could authorize another body to check the proper form. It could also authorize the COMELEC, for instance, to check the authenticity of the signatures of petitioners. Davide concluded: 'As long as it will not destroy the substantive right to initiate. In other words, none of the procedures to be proposed by the legislative body must diminish or impair the right conceded here.'" Quite clearly, the prohibition against the legislature is to impair the substantive right of the people to initiate amendments to the Constitution. It is not, however, prohibited from legislating the

procedure to enforce the people's right of initiative or to delegate it to another body like the COMELEC with proper standard. A survey of our case law will show that this Court has prudentially refrained from invalidating administrative rules on the ground of lack of adequate legislative standard to guide their promulgation. As aptly perceived by former Justice Cruz, "even if the law itself does not expressly pinpoint the standard, the courts will bend backward to locate the same elsewhere in order to spare the statute, if it can, from constitutional infirmity." 28 He cited the ruling in Hirabayashi v. United States, 29  viz: xxx xxx xxx It is true that the Act does not in terms establish a particular standard to which orders of the military commander are to conform, or require findings to be made as a prerequisite to any order. But the Executive Order, the Proclamations and the statute are not to be read in isolation from each other. They were parts of a single program and must be judged as such. The Act of March 21, 1942, was an adoption by Congress of the Executive Order and of the Proclamations. The Proclamations themselves followed a standard authorized by the Executive Order — the necessity of protecting military resources in the designated areas against espionage and sabotage. In the case at bar, the policy and the standards are bright-lined in R.A. No. 6735. A 20-20 look at the law cannot miss them. They were not written by our legislators in invisible ink. The policy and standards can also be found in no less than section 2, Article XVII of the Constitution on Amendments or Revisions. There is thus no reason to hold that the standards provided for in R.A. No. 6735 are insufficient for in other cases we have upheld as adequate more general standards such as "simplicity and dignity," 30 "public interest," 31 "public welfare," 32 "interest of law and order," 33 "justice and equity,"34 "adequate and efficient instruction," 35 "public safety," 36 "public policy", 37 "greater national interest", 38 "protect the local consumer by stabilizing and subsidizing domestic pump rates", 39 and "promote simplicity, economy and efficiency in government." 40 A due regard and respect to the legislature, a co-equal and coordinate branch of government, should counsel this Court to refrain from refusing to effectuate laws unless they are clearly unconstitutional. III It is also respectfully submitted that the petition should he dismissed with respect to the Pedrosas. The inclusion of the Pedrosas in the petition is utterly baseless. The records show that the case at bar started when respondent Delfin alone and by himself filed with the COMELEC a Petition to Amend the Constitution to Lift Term Limits of Elective Officials by People's Initiative. The Pedrosas did not join the petition. It was Senator Roco who moved to intervene and was allowed to do so by the COMELEC. The petition was heard and before the COMELEC could resolve the Delfin petition, the case at bar was filed by the petitioners with this Court.

Petitioners sued the COMELEC. Jesus Delfin, Alberto Pedrosa and Carmen Pedrosa in their capacities as founding members of the People's Initiative for Reform, Modernization and Action (PIRMA). The suit is an original action for prohibition with prayer for temporary restraining order and/or writ of preliminary injunction. The petition on its face states no cause of action against the Pedrosas. The only allegation against the Pedrosas is that they are founding members of the PIRMA which proposes to undertake the signature drive for people's initiative to amend the Constitution. Strangely, the PIRMA itself as an organization was not impleaded as a respondent. Petitioners then prayed that we order the Pedrosas ". . . to desist from conducting a signature drive for a people's initiative to amend the Constitution." On December 19, 1996, we temporarily enjoined the Pedrosas ". . . from conducting a signature drive for people's initiative to amend the Constitution." It is not enough for the majority to lift the temporary restraining order against the Pedrosas. It should dismiss the petition and all motions for contempt against them without equivocation. One need not draw a picture to impart the proposition that in soliciting signatures to start a people's initiative to amend the Constitution the Pedrosas are not engaged in any criminal act. Their solicitation of signatures is a right guaranteed in black and white by section 2 of Article XVII of the Constitution which provides that ". . . amendments to this Constitution may likewise be directly proposed by the people through initiative. . ." This right springs from the principle proclaimed in section 1, Article II of the Constitution that in a democratic and republican state "sovereignty resides in the people and all government authority emanates from them." The Pedrosas are part of the people and their voice is part of the voice of the people. They may constitute but a particle of our sovereignty but no power can trivialize them for sovereignty is indivisible. But this is not all. Section 16 of Article XIII of the Constitution provides: "The right of the people and their organizations to effective and reasonable participation at all levels of social, political and economic decision-making shall not be abridged. The State shall by law, facilitate the establishment of adequate consultation mechanisms." This is another novel provision of the 1987 Constitution strengthening the sinews of the sovereignty of our people. In soliciting signatures to amend the Constitution, the Pedrosas are participating in the political decisionmaking process of our people. The Constitution says their right cannot be abridged without any ifs and buts. We cannot put a question mark on their right. Over and above these new provisions, the Pedrosas' campaign to amend the Constitution is an exercise of their freedom of speech and expression and their right to petition the government for redress of grievances. We have memorialized this universal right in all our fundamental laws from the Malolos Constitution to the 1987 Constitution. We have iterated and reiterated in our rulings that freedom of speech is a preferred right, the matrix of other important rights of our people.

Undeniably, freedom of speech enervates the essence of the democratic creed of think and let think. For this reason, the Constitution encourages speech even if it protects the speechless. It is thus evident that the right of the Pedrosas to solicit signatures to start a people's initiative to amend the Constitution does not depend on any law, much less on R.A. 6735 or COMELEC Resolution No. 2300. No law, no Constitution can chain the people to an undesirable status quo. To be sure, there are no irrepealable laws just as there are no irrepealable Constitutions. Change is the predicate of progress and we should not fear change. Mankind has long recognized the truism that the only constant in life is change and so should the majority. IV In a stream of cases, this Court has rhapsodized people power as expanded in the 1987 Constitution. On October 5, 1993, we observed that people's might is no longer a myth but an article of faith in our Constitution. 41 On September 30, 1994, we postulated that people power can be trusted to check excesses of government and that any effort to trivialize the effectiveness of people's initiatives ought to be rejected. 42 On September 26, 1996, we pledged that ". . . this Court as a matter of policy and doctrine will exert every effort to nurture, protect and promote their legitimate exercise." 43 Just a few days ago, or on March 11, 1997, by a 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 tribunal of the people. Thus far, we have succeeded in transforming people power from an opaque abstraction to a robust reality. The Constitution calls us to encourage people empowerment to blossom in full. The Court cannot halt any and all signature campaigns to amend the Constitution without setting back the flowering of people empowerment. More important, the Court cannot seal the lips of people who are pro-change but not those who are anti-change without concerting the debate on charter change into a sterile talkaton. Democracy is enlivened by a dialogue and not by a monologue for in a democracy nobody can claim any infallibility. Melo and Mendoza, JJ., concur.   VITUG, J.,  concurring and dissenting: The COMELEC should have dismissed, outrightly, the Delfin Petition. It does seem to me that there is no real exigency on the part of the Court to engross, let alone to commit, itself on all the issues raised and debated upon by the parties. What is 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 Movement for People's Initiative" and seeking through a people initiative certain modifications on the 1987 Constitution, can properly be

regarded and given its due course. The Constitution, relative to any proposed amendment under this method, is explicit. Section 2, Article XVII, thereof provides: Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter. The Congress shall provide for the implementation of the exercise of this right. The Delfin petition is thus utterly deficient. Instead of complying with the constitutional imperatives, the petition would rather have much of its burden passed on, in effect, to the COMELEC. The petition would require COMELEC to schedule "signature gathering all over the country," to cause the necessary publication of the petition "in newspapers of general and local circulation," and to instruct "Municipal Election Registrars in all Regions of the Philippines to assist petitioners and volunteers in establishing signing stations at the time and on the dates designated for the purpose. I submit, even then, that the TRO earlier issued by the Court which, consequentially, is made permanent under the ponencia should be held to cover only the Delfin petition 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 constitutional mandate on people initiative. The distinct greatness of a democratic society is that those who reign are the governed themselves. The postulate is no longer lightly taken as just a perceived myth but a veritable reality. The past has taught us that the vitality of government lies not so much in the strength of those who lead as in the consent of those who are led. The role of free speech is pivotal but it can only have its true meaning if it comes with the correlative end of being heard. Pending a petition for a people's initiative that is sufficient in form and substance, it behooves the Court, I most respectfully submit, to yet refrain from resolving the question of whether or not Republic Act No. 6735 has effectively and sufficiently implemented the Constitutional provision on right of the people to directly propose constitutional amendments. Any opinion or view formulated by the Court at this point would at best be only a non-binding, albeit possibly persuasive, obiter dictum. I vote for granting the instant petition before the Court and for clarifying that the TRO earlier issued by the Court did not prescribe the exercise by the Pedrosas of their right to campaign for constitutional amendments.   FRANCISCO, J.,  dissenting and concurring: There is no question that my esteemed colleague Mr. Justice Davide has prepared a scholarly and well-written ponencia. Nonetheless, I cannot fully subscribe to his

view that R. A. No. 6735 is inadequate to cover the system of initiative on amendments to the Constitution. To begin with, sovereignty under the constitution, resides in the people and all government authority emanates from them.1 Unlike our previous constitutions, the present 1987 Constitution has given more significance to this declaration of principle for the people are now vested with power not only to propose, enact or reject any act or law passed by Congress or by the local legislative body, but to propose amendments to the constitution as well.2 To implement these constitutional edicts, Congress in 1989 enacted Republic Act No. 6735, otherwise known as "The initiative and Referendum Act". This law, to my mind, amply covers an initiative on the constitution. The contrary view maintained by petitioners is based principally on the alleged lack of sub-title in the law on initiative to amend the constitution and on their allegation that: Republic Act No. 6735 provides for the effectivity of the law after publication in print media. [And] [t]his indicates that Republic Act No. 6735 covers only laws and not constitutional amendments, because constitutional amendments take effect upon ratification not after publication.3 which allegation manifests petitioners' selective interpretation of the law, for under Section 9 of Republic Act No. 6735 on the Effectivity of Initiative or Referendum Proposition paragraph (b) thereof is clear in providing that: The proposition in an initiative on the constitution approved by a majority of the votes cast in the plebiscite shall become effective as to the day of the plebiscite. It is a rule that every part of the statute must be interpreted with reference the context, i.e., that every part of the statute must be construed together with the other parts and kept subservient to the general intent of the whole enactment. 4 Thus, the provisions of Republic Act No. 6735 may not be interpreted in isolation. The legislative intent behind every law is to be extracted from the statute as a whole.5 In its definition of terms, Republic Act No. 6735 defines initiative as "the power of the people to propose amendments to the constitution or to propose and enact legislations through an election called for the purpose".6 The same section, in enumerating the three systems of initiative, included an "initiative on the constitution which refers to a petition proposing amendments to the constitution"7 Paragraph (e) again of Section 3 defines "plebiscite" as "the electoral process by which an initiative on the constitution is approved or rejected by the people" And as to the material requirements for an initiative on the Constitution, Section 5(b) distinctly enumerates the following: A petition for an initiative on the 1987 Constitution must have at least twelve  per centum (12%) of the total number of the registered voters as signatories, of which every legislative district must be represented by at least three per centum (3%) of the registered voters therein. Initiative on the constitution may be exercised only

after five (5) years from the ratification of the 1987 Constitution and only once every five years thereafter. These provisions were inserted, on purpose, by Congress the intent being to provide for the implementation of the right to propose an amendment to the Constitution by way of initiative. "A legal provision", the Court has previously said, "must not be construed as to be a useless surplusage, and accordingly, meaningless, in the sense of adding nothing to the law or having no effect whatsoever thereon". 8 That this is the legislative intent is further shown by the deliberations in Congress, thus: . . . More significantly, in the course of the consideration of the Conference Committee Report on the disagreeing provisions of Senate Bill No. 17 and House Bill No. 21505, it was noted: MR. ROCO. On the Conference Committee Report on the disagreeing provisions between Senate Bill No. 17 and the consolidated House Bill No. 21505 which refers to the system providing for the initiative and referendum, fundamentally, Mr. Speaker, we consolidated the Senate and the House versions, so both versions are totally intact in the bill. The Senators ironically provided for local initiative and referendum and the House of Representatives correctly provided for initiative and referendum an the Constitution and on national legislation. I move that we approve the consolidated bill. MR. ALBANO, Mr. Speaker. THE SPEAKER PRO TEMPORE. What is the pleasure of the Minority Floor Leader? MR. ALBANO. Will the distinguished sponsor answer just a few questions? THE SPEAKER PRO TEMPORE. What does the sponsor say? MR. ROCO. Willingly, Mr. Speaker. THE SPEAKER PRO TEMPORE. The Gentleman will please proceed. MR. ALBANO. I heard the sponsor say that the only difference in the two bills was that in the Senate version there was a provision for local initiative and referendum, whereas the House version has none. MR. ROCO. In fact, the Senate version provided purely for local initiative and referendum, whereas in the House version, we provided purely for national and constitutional legislation. MR. ALBANO. Is it our understanding, therefore, that the two provisions were incorporated? MR. ROCO. Yes, Mr. Speaker. MR. ALBANO. So that we will now have a complete initiative and referendum both in the constitutional amendment and national legislation. MR. ROCO. That is correct. MR. ALBANO. And provincial as well as municipal resolutions? MR. ROCO. Down to barangay, Mr. Speaker.

MR. ALBANO. And this initiative and referendum is in consonance with the provision of the Constitution to enact the enabling law, so that we shall have a system which can be done every five years. Is it five years in the provision of the Constitution? MR. ROCO. That is correct, Mr. Speaker. For constitutional amendments to the 1987 Constitution, it is every five years." (Id. [Journal and Record of the House of Representatives], Vol. VIII, 8 June 1989, p. 960; quoted in Garcia v. Comelec, 237 SCRA 279, 292-293 [1994]; emphasis supplied) . . . The Senate version of the Bill may not have comprehended initiatives on the Constitution. When consolidated, though, with the House version of the Bill and as approved and enacted into law, the proposal included initiative on both the Constitution and ordinary laws.9 Clearly then, Republic Act No. 6735 covers an initiative on the constitution. Any other construction as what petitioners foist upon the Court constitute a betrayal of the intent and spirit behind the enactment. At any rate, I agree with the ponencia that the Commission on Elections, at present, cannot take any action (such as those contained in the Commission's orders dated December 6, 9, and 12, 1996 [Annexes B, C and B-1]) indicative of its having already assumed jurisdiction over private respondents' petition. This is so because from the tenor of Section 5 (b) of R.A. No. 6735 it would appear that proof of procurement of the required percentage of registered voters at the time the petition for initiative is filed, is a jurisdictional requirement. Thus: A  petition for an initiative on the 1987 Constitution must have at least twelve  per centum (12%) of the total number of registered voters as signatories, of which every legislative district must be represented by at least three  per centum (3%) of the registered voters therein. Initiative on the Constitution may be exercised only after five (5) years from the ratification of the 1987 Constitution and only once every five (5) years thereafter. Here private respondents' petition is unaccompanied by the required signatures. This defect notwithstanding, it is without prejudice to the refiling of their petition once compliance with the required percentage is satisfactorily shown by private respondents. In the absence, therefore, of an appropriate petition before the Commission on Elections, any determination of whether private respondents' proposal constitutes an amendment or revision is premature. ACCORDINGLY, I take exception to the conclusion reached in the ponencia that R.A. No. 6735 is an "inadequate" legislation to cover a people's initiative to propose amendments to the Constitution. I, however, register my concurrence with the dismissal, in the meantime, of private respondents' petition for initiative before public respondent Commission on Elections until the same be supported by proof of strict compliance with Section 5 (b) of R.A. No. 6735.

Melo and Mendoza, JJ., concur.   PANGANIBAN, J.,  concurring and dissenting: Our distinguished colleague, Mr. Justice Hilario G. Davide Jr., writing for the majority, holds that: (1) The Comelec acted without jurisdiction or with grave abuse of discretion in entertaining the "initiatory" Delfin Petition. (2) While the Constitution allows amendments to "be directly proposed by the people through initiative," there is no implementing law for the purpose. RA 6735 is "incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned." (3) Comelec Resolution No. 2330, "insofar as it prescribes rules and regulations on the conduct of initiative on amendments to the Constitution, is void." I concur with the first item above. Until and unless an initiatory petition can show the required number of signatures — in this case, 12% of all the registered voters in the Philippines with at least 3% in every legislative district — no public funds may be spent and no government resources may be used in an initiative to amend the Constitution. Verily, the Comelec cannot even entertain any petition absent such signatures. However, I dissent most respectfully from the majority's two other rulings. Let me explain. Under the above restrictive holdings espoused by the Court's majority, the Constitution cannot be amended at all through a people's initiative. Not by Delfin, not by Pirma, not by anyone, not even by all the voters of the country acting together. This decision will effectively but unnecessarily curtail, nullify, abrogate and render inutile the people's right to change the basic law.  At the very least, the majority holds the right hostage to congressional discretion on whether to pass a new law to implement it, when there is already one existing at present. This right to amend through initiative, it bears stressing, is guaranteed by Section 2, Article XVII of the Constitution, as follows: Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter. With all due respect, I find the majority's position all too sweeping and all too extremist. It is equivalent to burning the whole house to exterminate the rats, and to killing the patient to relieve him of pain. What Citizen Delfin wants the Comelec to do we should reject. But we should not thereby preempt any future effort to exercise the right of initiative correctly and judiciously. The fact that the Delfin Petition proposes a misuse of initiative does not justify a ban against its proper use.

Indeed, there is a right way to do the right thing at the right time and for the right reason. Taken Together and Interpreted Properly, the Constitution, RA 6735 and Comelec Resolution 2300 Are Sufficient to Implement Constitutional Initiatives While RA 6735 may not be a perfect law, it was — as the majority openly concedes — intended by the legislature to cover and, I respectfully submit, it contains enough provisions to effectuate an initiative on the Constitution.1 I completely agree with the inspired and inspiring opinions of Mr. Justice Reynato S. Puno and Mr. Justice Ricardo J. Francisco that RA 6735, the Roco law on initiative, sufficiently implements the right of the people to initiate amendments to the Constitution. Such views, which I shall no longer repeat nor elaborate on, are thoroughly consistent with this Court's unanimous en banc rulings in Subic Bay Metropolitan Authority vs. Commission on Elections, 2 that "provisions for initiative . . . are (to be) liberally construed to effectuate their purposes, to facilitate and not hamper the exercise by the voters of the rights granted thereby"; and in Garcia vs. Comelec, 3 that any "effort to trivialize the effectiveness of people's initiatives ought to be rejected." No law can completely and absolutely cover all administrative details. In recognition of this, RA 6735 wisely empowered 4 the Commission on Election "to promulgate such rules and regulations as may be necessary to carry out the purposes of this Act." And pursuant thereto, the Comelec issued its Resolution 2300 on 16 January 1991. Such Resolution, by its very words, was promulgated "to govern the conduct of initiative on the Constitution and initiative and referendum on national and local laws," not by the incumbent Commission on Elections but by one then composed of Acting Chairperson Haydee B. Yorac, Comms. Alfredo E. Abueg Jr., Leopoldo L. Africa, Andres R. Flores, Dario C. Rama and Magdara B. Dimaampao. All of these Commissioners who signed Resolution 2300 have retired from the Commission, and thus we cannot ascribe any vile motive unto them, other than an honest, sincere and exemplary effort to give life to a cherished right of our people. The majority argues that while Resolution 2300 is valid in regard to national laws and local legislations, it is void in reference to constitutional amendments. There is no basis for such differentiation. The source of and authority for the Resolution is the same law, RA 6735. I respectfully submit that taken together and interpreted properly and liberally, the Constitution (particularly Art. XVII, Sec. 2), R4 6735 and Comelec Resolution 2300 provide more than sufficient authority to implement, effectuate and realize our people's power to amend the Constitution. Petitioner Delfin and the Pedrosa Spouses Should Not Be Muzzled I am glad the majority decided to heed our plea to lift the temporary restraining order issued by this Court on 18 December 1996 insofar as it prohibited Petitioner Delfin and the Spouses Pedrosa from exercising their right of initiative. In fact, I

believe that such restraining order as against private respondents should not have been issued, in the first place. While I agree that the Comelec should be stopped from using public funds and government resources to help them gather signatures, I firmly believe that this Court has no power to restrain them from exercising their right of initiative. The right to propose amendments to the Constitution is really a species of the right of free speech and free assembly. And certainly, it would be tyrannical and despotic to stop anyone from speaking freely and persuading others to conform to his/her beliefs. As the eminent Voltaire once said, "I may disagree with what you say, but I will defend to the death your right to say it." After all, freedom is not really for the thought we agree with, but as Justice Holmes wrote, "freedom for the thought that we hate."5 Epilogue By way of epilogue, let me stress the guiding tenet of my Separate Opinion. Initiative, like referendum and recall, is a new and treasured feature of the Filipino constitutional system. All three are institutionalized legacies of the world-admired EDSA people power. Like elections and plebiscites, they are hallowed expressions of popular sovereignty. They are sacred democratic rights of our people to be used as their final weapons against political excesses, opportunism, inaction, oppression and misgovernance; as well as their reserved instruments to exact transparency, accountability and faithfulness from their chosen leaders. While on the one hand, their misuse and abuse must be resolutely struck down, on the other, their legitimate exercise should be carefully nurtured and zealously protected. WHEREFORE, I vote to GRANT the petition of Sen. Miriam D. Santiago et al. and to DIRECT Respondent Commission on Elections to DISMISS the Delfin Petition on the ground of prematurity, but not on the other grounds relied upon by the majority. I also vote to LIFT the temporary restraining order issued on 18 December 1996 insofar as it prohibits Jesus Delfin, Alberto Pedrosa and Carmen Pedrosa from exercising their right to free speech in proposing amendments to the Constitution.