Philippine Supreme Court Jurisprudence > Year 2006 > October 2006 Decisions > G.R. No. 174153 and G.R. NO. 174299 : DISSENTING OPINION - CHICO-NAZARIO, J. - RAUL L. LAMBINO, ET AL. v. COMMISSION ON ELECTIONS:

CHICO-NAZARIO, J.:

"The people made the constitution, and the people can unmake it. It is the creature of their will, and lives only by their will. But this supreme and irresistible power to make or unmake, resides only in the whole body of the people; not in any subdivision of them."

-- Marshall, C.J., Cohens v. Virginia (1821, US) 6 Wheat 264, 389, 5 L ed. 257, 287.

I express my concurrence in the discussions and conclusions presented in the persuasive and erudite dissent of Justice Reynato S. Puno. However, I make some additional observations in connection with my concurrence.

While it is but proper to accord great respect and reverence to the Philippine Constitution of 1987 for being the supreme law of the land, we should not lose sight of the truth that there is an ultimate authority to which the Constitution is also subordinate - the will of the people. No less than its very first paragraph, the Preamble,¹ expressly recognizes that the Constitution came to be because it was ordained and promulgated by the sovereign Filipino people. It is a principle reiterated yet again in Article II, Section 1, of the Constitution, which explicitly declares that "[t]he Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them." Thus, the resolution of the issues and controversies raised by the instant Petition should be guided accordingly by the foregoing principle.

If the Constitution is the expression of the will of the sovereign people, then, in the event that the people change their will, so must the Constitution be revised or amended to reflect such change. Resultantly, the right to revise or amend the Constitution inherently resides in the sovereign people whose will it is supposed to express and embody. The Constitution itself, under Article XVII, provides for the means by which the revision or amendment of the Constitution may be proposed and ratified.

Under Section 1 of the said Article, proposals to amend or revise the Constitution may be made (a) by Congress, upon a vote of three-fourths of all its Members, or (b) by constitutional convention. The Congress and the constitutional convention possess the power to propose amendments to, or revisions of, the Constitution not simply because the Constitution so provides, but because the sovereign people had chosen to delegate their inherent right to make such proposals to their representatives either through Congress or through a constitutional convention.

On the other hand, the sovereign people, well-inspired and greatly empowered by the People Power Revolution of 1986, reserved to themselves the right to directly propose amendments to the Constitution through initiative, to wit -

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.²

The afore-quoted section does not confer on the Filipino people the right to amend the Constitution because, as previously discussed, such right is inherent in them. The section only reduces into writing this right to initiate amendments to the Constitution where they collectively and willfully agreed in the manner by which they shall exercise this right: (a) through the filing of a petition; (b) supported by at least twelve percent (12%) of the total number of registered voters nationwide; (c) with each legislative district represented by at least three percent (3%) of the registered voters therein; (d) subject to the limitation that no such petition may be filed within five years after the ratification of the Constitution, and not oftener than once every five years thereafter; and (e) a delegation to Congress of the authority to provide the formal requirements and other details for the implementation of the right.

It is my earnest opinion that the right of the sovereign people to directly propose amendments to the Constitution through initiative is more superior than the power they delegated to Congress or to a constitutional convention to amend or revise the Constitution. The initiative process gives the sovereign people the voice to express their collective will, and when the people speak, we must be ready to listen. Article XVII, Section 2 of the Constitution recognizes and guarantees the sovereign people's right to initiative, rather than limits it. The enabling law which Congress has been tasked to enact must give life to the said provision and make the exercise of the right to initiative possible, not regulate, limit, or restrict it in any way that would render the people's option of resorting to initiative to amend the Constitution more stringent, difficult, and less feasible, as compared to the other constitutional means to amend or revise the Constitution. In fact, it is worth recalling that under Article VI, Section 1 of the Constitution, the legislative power of Congress is limited to the extent reserved to the people by the provisions on initiative and referendum.

It is with this frame of mind that I review the issues raised in the instant Petitions, and which has led me to the conclusions, in support of the dissent of Justice Puno, that (a) The Commission on Election (COMELEC) had indeed committed grave abuse of discretion in summarily dismissing the petition for initiative to amend the Constitution filed by herein petitioners Raul L. Lambino and Erico B. Aumentado; (b) The Court should revisit the pronouncements it made in Santiago v. Commission on Elections;³ (c) It is the sovereign people's inherent right to propose changes to the Constitution, regardless of whether they constitute merely amendments or a total revision thereof; and (d) The COMELEC should take cognizance of Lambino and Aumentado's petition for initiative and, in the exercise of its jurisdiction, determine the factual issues raised by the oppositors before this Court.

I

The COMELEC had indeed committed grave abuse of discretion when it summarily dismissed Lambino and Aumentado's petition for initiative entirely on the basis of the Santiago case which, allegedly, permanently enjoined it from entertaining or taking cognizance of any petition for initiative to amend the Constitution in the absence of a sufficient law.

After a careful reading, however, of the Santiago case, I believe in earnest that the permanent injunction actually issued by this Court against the COMELEC pertains only to the petition for initiative filed by Jesus S. Delfin, and not to all subsequent petitions for initiative to amend the Constitution.

The Conclusion⁴ in the majority opinion in the Santiago case reads -

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.

It is clear from the fallo, as it is reproduced above, that the Court made permanent the Temporary Restraining Order (TRO) it issued on 18 December 1996 against the COMELEC. The said TRO enjoined the COMELEC from proceeding with the Delfin Petition, and Alberto and Carmen Pedrosa from conducting a signature drive for people's initiative.⁵ It was this restraining order, more particularly the portion thereof referring to the Delfin Petition, which was expressly made permanent by the Court. It would seem to me that the COMELEC and all other oppositors to Lambino and Aumentado's petition for initiative gave unwarranted significance and weight to the first paragraph of the Conclusion in the Santiago case. The first and second paragraphs of the Conclusion, preceding the dispositive portion, merely express the opinion of the ponente; while the definite orders of the Court for implementation are found in the dispositive portion.

We have previously held that -

The dispositive portion or the fallo is what actually constitutes the resolution of the court and which is the subject of execution, although the other parts of the decision may be resorted to in order to determine the ratio decidendi for such a resolution. Where there is conflict between the dispositive part and the opinion of the court contained in the text of the decision, the former must prevail over the latter on the theory that the dispositive portion is the final order while the opinion is merely a statement ordering nothing. Hence execution must conform more particularly to that ordained or decreed in the dispositive portion of the decision.⁶

Is there a conflict between the first paragraph of the Conclusion and the dispositive portion of the Santiago case? Apparently, there is. The first paragraph of the Conclusion states that the COMELEC should be permanently enjoined from entertaining or taking cognizance of any petition for initiative on amendments to the Constitution until the enactment of a valid law. On the other hand, the fallo only makes permanent the TRO⁷ against COMELEC enjoining it from proceeding with the Delfin Petition. While the permanent injunction contemplated in the Conclusion encompasses all petitions for initiative on amendments to the Constitution, the fallo is expressly limited to the Delfin Petition. To resolve the conflict, the final order of the Court as it is stated in the dispositive portion or the fallo should be controlling.

Neither can the COMELEC dismiss Lambino and Aumentado's petition for initiative on the basis of this Court's Resolution, dated 23 September 1997, in the case of People's Initiative for Reform, Modernization and Action (PIRMA) v. The Commission on Elections, et al.⁸ The Court therein found that the COMELEC did not commit grave abuse of discretion in dismissing the PIRMA Petition for initiative to amend the Constitution for it only complied with the Decision in the Santiago case.

It is only proper that the Santiago case should also bar the PIRMA Petition on the basis of res judicatabecause PIRMA participated in the proceedings of the said case, and had knowledge of and, thus, must be bound by the judgment of the Court therein. As explained by former Chief Justice Hilario G. Davide, Jr. in his separate opinion to the Resolution in the PIRMA case -

First, it is barred by res judicata. No one aware of the pleadings filed here and in Santiago v. COMELEC (G.R. No. 127325, 19 March 1997) may plead ignorance of the fact that the former is substantially identical to the latter, except for the reversal of the roles played by the principal parties and inclusion of additional, yet not indispensable, parties in the present petition. But plainly, the same issues and reliefs are raised and prayed for in both cases.

The principal petitioner here is the PEOPLE'S INITIATIVE FOR REFORM, MODERNIZATION, AND ACTION (PIRMA) and Spouses ALBERTO PEDROSA and CARMEN PEDROSA. PIRMA is self-described as "a non-stock, non-profit organization duly organized and existing under Philippine laws with office address at Suite 403, Fedman Suites, 199 Salcedo Street, Legaspi Village, Makati City," with "ALBERTO PEDROSA and CARMEN PEDROSA" as among its "officers." In Santiago, the PEDROSAS were made respondents as founding members of PIRMA which, as alleged in the body of the petition therein, "proposes to undertake the signature drive for a people's initiative to amend the Constitution." In Santiago then, the PEDROSAS were sued in their capacity as founding members of PIRMA.

The decision in Santiago specifically declared that PIRMA was duly represented at the hearing of the Delfin petition in the COMELEC. In short, PIRMA was intervenor-petitioner therein. Delfin alleged in his petition that he was a founding member of the Movement for People's Initiative, and under footnote no. 6 of the decision, it was noted that said movement was "[l]ater identified as the People's Initiative for Reforms, Modernization and Action, or PIRMA for brevity." In their Comment to the petition in Santiago, the PEDROSA'S did not deny that they were founding members of PIRMA, and by their arguments, demonstrated beyond a shadow of a doubt that they had joined Delfin or his cause.

No amount of semantics may then shield herein petitioners PIRMA and the PEDROSAS, as well as the others joining them, from the operation of the principle of res judicata, which needs no further elaboration.⁹

While the Santiago case bars the PIRMA case because of res judicata, the same cannot be said to the Petition at bar. Res judicata is an absolute bar to a subsequent action for the same cause; and its requisites are: (a) the former judgment or order must be final; (b) the judgment or order must be one on the merits; (c) it must have been rendered by a court having jurisdiction over the subject matter and parties; and (d) there must be between the first and second actions, identity of parties, of subject matter and of causes of action.¹⁰

Even though it is conceded that the first three requisites are present herein, the last has not been complied with. Undoubtedly, the Santiago case and the present Petition involve different parties, subject matter, and causes of action, and the former should not bar the latter.

In the Santiago case, the petition for initiative to amend the Constitution was filed by Delfin alone. His petition does not qualify as the initiatory pleading over which the COMELEC can acquire jurisdiction, being unsupported by the required number of registered voters, and actually imposing upon the COMELEC the task of gathering the voters' signatures. In the case before us, the petition for initiative to amend the Constitution was filed by Lambino and Aumentado, on behalf of the 6.3 million registered voters who affixed their signatures on the signature sheets attached thereto. Their petition prays that the COMELEC issue an Order -

1. Finding the petition to be sufficient pursuant to Section 4, Article XVII of the 1987 Constitution;
   
   
2. Directing the publication of the petition in Filipino and English at least twice in newspapers of general and local circulation; and
   
   
3. Calling a plebiscite to be held not earlier than sixty nor later than ninety days after the Certification by the COMELEC of the sufficiency of the petition, to allow the Filipino people to express their sovereign will on the proposition.
   

Although both cases involve the right of the people to initiate amendments to the Constitution, the personalities concerned and the other factual circumstances attendant in the two cases differ. Also dissimilar are the particular prayer and reliefs sought by the parties from the COMELEC, as well as from this Court.

For these reasons, I find that the COMELEC acted with grave abuse of discretion when it summarily dismissed the petition for initiative filed by Lambino and Aumentado. It behooves the COMELEC to accord due course to a petition which on its face complies with the rudiments of the law. COMELEC was openly negligent in summarily dismissing the Lambino and Aumentado petition. The haste by which the instant Petition was struck down is characteristic of bad faith, which, to my mind, is a patent and gross evasion of COMELEC's positive duty. It has so obviously copped out of its duty and responsibility to determine the sufficiency thereof and sought protection and justification for its craven decision in the supposed permanent injunction issued against it by the Court in the Santiago case. The COMELEC had seemingly expanded the scope and application of the said permanent injunction, reading into it more than what it actually states, which is surprising, considering that the Chairman and majority of the members of COMELEC are lawyers who should be able to understand and appreciate, more than a lay person, the legal consequences and intricacies of the pronouncements made by the Court in the Santiago case and the permanent injunction issued therein.

No less than the Constitution itself, under the second paragraph of Article XVII, Section 4, imposes upon the COMELEC the mandate to set a date for plebiscite after a positive determination of the sufficiency of a petition for initiative on amendments to the Constitution, viz -

SEC. 4. x x x

Any amendment under Section 2 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the certification by the Commission on Elections of the sufficiency of the petition.

As a rule, the word "shall" commonly denotes an imperative obligation and is inconsistent with the idea of discretion, and that the presumption is that the word "shall" when used, is mandatory.¹¹ Under the above-quoted constitutional provision, it is the mandatory or imperative obligation of the COMELEC to (a) determine the sufficiency of the petition for initiative on amendments to the Constitution and issue a certification on its findings; and (b) in case such petition is found to be sufficient, to set the date for the plebiscite on the proposed amendments not earlier than 60 days nor later than 90 days after its certification.

The COMELEC should not be allowed to shun its constitutional mandate under the second paragraph of Article XVII, Section 4, through the summary dismissal of the petition for initiative filed by Lambino and Aumentado, when such petition is supported by 6.3 million signatures of registered voters. Should all of these signatures be authentic and representative of the required percentages of registered voters for every legislative district and the whole nation, then the initiative is a true and legitimate expression of the will of the people to amend the Constitution, and COMELEC had caused them grave injustice by silencing their voice based on a patently inapplicable permanent injunction.

II

We should likewise take the opportunity to revisit the pronouncements made by the Court in its Decision in the Santiago case, especially as regards the supposed insufficiency or inadequacy of Republic Act No. 6735 as the enabling law for the implementation of the people's right to initiative on amendments to the Constitution.

The declaration of the Court that Republic Act No. 6735 is insufficient or inadequate actually gave rise to more questions rather than answers, due to the fact that there has never been a judicial precedent wherein the Court invalidated a law for insufficiency or inadequacy. The confusion over such a declaration thereby impelled former Chief Justice Davide, Jr., the ponente in the Santiago case, to provide the following clarification in his separate opinion to the Resolution in the PIRMA case, thus -

Simply put, Santiago did, in reality, declare as unconstitutional that portion of R.A. No. 6735 relating to Constitutional initiatives for failure to comply with the "completeness and sufficient standard tests" with respect to permissible delegation of legislative power or subordinate legislation. However petitioners attempt to twist the language in Santiago, the conclusion is inevitable; the portion of R.A. No. 6735 was held to be unconstitutional.

It is important to note, however, that while the Decision in the Santiago case pronounced repeatedly that Republic Act No. 6735 was insufficient and inadequate, there is no categorical declaration therein that the said statute was unconstitutional. The express finding that Republic Act No. 6735 is unconstitutional can only be found in the separate opinion of former Chief Justice Davide to the Resolution in the PIRMA case, which was not concurred in by the other members of the Court.

Even assuming arguendo that the declaration in the Santiago case, that Republic Act No. 6735 is insufficient and inadequate, is already tantamount to a declaration that the statute is unconstitutional, it was rendered in violation of established rules in statutory construction, which state that -

[A]ll presumptions are indulged in favor of constitutionality; one who attacks a statute, alleging unconstitutionality must prove its invalidity beyond a reasonable doubt (Victoriano v. Elizalde Rope Workers' Union, 59 SCRA 54 [19741). In fact, this Court does not decide questions of a constitutional nature unless that question is properly raised and presented in appropriate cases and is necessary to a determination of the case, i.e., the issue of constitutionality must be lis mota presented (Tropical Homes v. National Housing Authority, 152 SCRA 540 [1987]).

First, the Court, in the Santiago case, could have very well avoided the issue of constitutionality of Republic Act No. 6735 by ordering the COMELEC to dismiss the Delfin petition for the simple reason that it does not constitute an initiatory pleading over which the COMELEC could acquire jurisdiction. And second, the unconstitutionality of Republic Act No. 6735 has not been adequately shown. It was by and large merely inferred or deduced from the way Republic Act No. 6735 was worded and the provisions thereof arranged and organized by Congress. The dissenting opinions rendered by several Justices in the Santiago case reveal the other side to the argument, adopting the more liberal interpretation that would allow the Court to sustain the constitutionality of Republic Act No. 6735. It would seem that the majority in the Santiago case failed to heed the rule that all presumptions should be resolved in favor of the constitutionality of the statute.

The Court, acting en banc on the Petition at bar, can revisit its Decision in the Santiago case and again open to judicial review the constitutionality of Republic Act No. 6735; in which case, I shall cast my vote in favor of its constitutionality, having satisfied the completeness and sufficiency of standards tests for the valid delegation of legislative power. I fully agree in the conclusion made by Justice Puno on this matter in his dissenting opinion¹² in the Santiago case, that reads -

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, directs how initiative proceeding is commenced, what the COMELEC should do upon filing of the petition for initiative, how a proposition is approved, when a plebiscite may be held, when the amendment takes effect, and what matters may not be the subject of any initiative. By any measure, these standards are adequate.

III

The dissent of Justice Puno has already a well-presented discourse on the difference between an "amendment" and a "revision" of the Constitution. Allow me also to articulate my additional thoughts on the matter.

Oppositors to Lambino and Aumentado's petition for initiative argue that the proposed changes therein to the provisions of the Constitution already amount to a revision thereof, which is not allowed to be done through people's initiative; Article XVII, Section 2 of the Constitution on people's initiative refers only to proposals for amendments to the Constitution. They assert the traditional distinction between an amendment and a revision, with amendment referring to isolated or piecemeal change only, while revision as a revamp or rewriting of the whole instrument.¹³

However, as pointed out by Justice Puno in his dissent, there is no quantitative or qualitative test that can establish with definiteness the distinction between an amendment and a revision, or between a substantial and simple change of the Constitution.

The changes proposed to the Constitution by Lambino and Aumentado's petition for initiative basically affect only Article VI on the Legislative Department and Article VII on the Executive Department. While the proposed changes will drastically alter the constitution of our government by vesting both legislative and executive powers in a unicameral Parliament, with the President as the Head of State and the Prime Minister exercising the executive power; they would not essentially affect the other 16 Articles of the Constitution. The 100 or so changes counted by the oppositors to the other provisions of the Constitution are constituted mostly of the nominal substitution of one word for the other, such as Parliament for Congress, or Prime Minister for President. As eloquently pointed out in the dissent of Justice Puno, the changes proposed to transform our form of government from bicameral-presidential to unicameral-parliamentary, would not affect the fundamental nature of our state as a democratic and republican state. It will still be a representative government where officials continue to be accountable to the people and the people maintain control over the government through the election of members of the Parliament.

Furthermore, should the people themselves wish to change a substantial portion or even the whole of the Constitution, what or who is to stop them? Article XVII, Section 2 of the Constitution which, by the way it is worded, refers only to their right to initiative on amendments of the Constitution? The delegates to the Constitutional Convention who, according to their deliberations, purposely limited Article XVII, Section 2 of the Constitution to amendments? This Court which has the jurisdiction to interpret the provision? Bearing in mind my earlier declaration that the will of the sovereign people is supreme, there is nothing or no one that can preclude them from initiating changes to the Constitution if they choose to do so. To reiterate, the Constitution is supposed to be the expression and embodiment of the people's will, and should the people's will clamor for a revision of the Constitution, it is their will which should prevail. Even the fact that the people ratified the 1987 Constitution, including Article XVII, Section 2 thereof, as it is worded, should not prevent the exercise by the sovereign people of their inherent right to change the Constitution, even if such change would be tantamount to a substantial amendment or revision thereof, for their actual exercise of the said right should be a clear renunciation of the limitation which the said provision imposes upon it. It is the inherent right of the people as sovereign to change the Constitution, regardless of the extent thereof.

IV

Lastly, I fail to see the injustice in allowing the COMELEC to give due course to and take cognizance of Lambino and Aumentado's petition for initiative to amend the Constitution. I reiterate that it would be a greater evil if one such petition which is ostensibly supported by the required number of registered voters all over the country, be summarily dismissed.

Giving due course and taking cognizance of the petition would not necessarily mean that the same would be found sufficient and set for plebiscite. The COMELEC still faces the task of reviewing the petition to determine whether it complies with the requirements for a valid exercise of the right to initiative. Questions raised by the oppositors to the petition, such as those on the authenticity of the registered voters' signatures or compliance with the requisite number of registered voters for every legislative district, are already factual in nature and require the reception and evaluation of evidence of the parties. Such questions are best presented and resolved before the COMELEC since this Court is not a trier of facts.

In view of the foregoing, I am of the position that the Resolution of the COMELEC dated 31 August 2006 denying due course to the Petition for Initiative filed by Lambino and Aumentado be reversed and set aside for having been issued in grave abuse of discretion, amounting to lack of jurisdiction, and that the Petition be remanded to the COMELEC for further proceedings.

In short, I vote to GRANT the petition for Initiative of Lambino and Aumentado.

Endnotes:

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¹ The full text of the Preamble reads:

We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a just and humane society and establish a Government that shall embody our ideals and aspirations, promote the common good, conserve and develop our patrimony, and secure to ourselves and our posterity the blessings of independence and democracy under the rule of law and a regime of truth, justice, freedom, love, equality, and peace, do ordain and promulgate this Constitution.

² Article XVII, Constitution.

³ G.R. No. 127325, 19 March 1997, 270 SCRA 106.

⁴ Id. at 157.

⁵ Id. at 124.

⁶Olac v. Rivera, G.R. No. 84256, 2 September 1992, 213 SCRA 321, 328-329; See also the more recent cases of Republic v. Nolasco, G.R. No. 155108, 27 April 2005, 457 SCRA 400; and PH Credit Corporation v. Court of Appeals, 421 Phil. 821 (2001).

⁷ Supra note 2 at 124.

⁸ G.R. No. 129754.

⁹ Separate Opinion of former Chief Justice Hilario G. Davide, Jr. to the Resolution, dated 23 September 1997, in G.R. No. 129754, PIRMA v. COMELEC, pp. 2-3.

¹⁰Mirpuri v. Court of Appeals, 376 Phil. 628, 650 (1999).

¹¹Pioneer Texturizing Corporation v. NLRC, G.R. No. 118651, 16 October 1997.

¹²Santiago v. Comelec, supra note 2 at 170-171.

¹³ Isagani A. Cruz, Philippine Political Law, 1996 ed., p. 352.