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G.R. No. L-40004, January 31, 1975,
♦ Decision, Makasiar, [J]
♦ Separate Opinion, Castro, Fernando, Barredo, Antonio, Fernandez, Teehankee, Muñoz-Palma [JJ]

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Manila

EN BANC

G.R. No. L-40004 January 31, 1975

BENIGNO S. AQUINO, JR., TRINIDAD HERRERA, BISHOP FRANCISCO CLAVER, S.J., BISHOP ANTONIO NEPOMUCENO, BISHOP JESUS VALERA, BISHOP FELIX ZAFRA, BISHOP TEOTIMO PACIS, EUGENIO LOPEZ, JR., SERGIO OSMEÑA, III, ANTONIO ARANETA, ANTONIO MIRANDA, RAUL GONZALES, JOKER ARROYO, and EMILIO DE PERALTA, petitioners,
vs.
COMMISSION ON ELECTIONS, and NATIONAL TREASURER, respondents.

Lorenzo M. Tañada, Renato E. Tañada and Wigberto E. Tañada for petitioners

Office of the Solicitor General Estelito P Mendoza, Assistant Solicitor General Hugo E. Gutierrez, Jr., Assistant Solicitor General Vicente V. Mendoza & Assistant Solicitor General Reynato S. Puno for respondents.

MAKASIAR, J.:

I

This petition for prohibition, which was filed on January 21, 1975, seeks the nullification of Presidential Decrees Nos. 1366, 1366-A, calling a referendum for February 27, 1975, Presidential Decrees Nos. 629 and 630 appropriating funds therefor, and Presidential Decrees Nos. 637 and 637-A specifying the referendum questions, as well as other presidential decrees, orders and instructions relative to the said referendum.

The respondents, through the Solicitor General, filed their comment on January 28, 1975. After the oral argument of over 7 hours on January 30, 1975, the Court resolved to consider the comment as answer and the case submitted for decision.

The first ground upon which the petition is predicated states that President Ferdinand E. Marcos does not hold any legal office nor possess any lawful authority under either the 1935 Constitution or the 1973 Constitution and therefore has no authority to issue the questioned proclamations, decrees and orders. This challenges the title of the incumbent President to the office of the Presidency and therefore is in the nature of a quo warranto proceedings, the appropriate action by which the title of a public officer can be questioned before the courts. Only the Solicitor General or the person who asserts title to the same office can legally file such a quo warranto petition. The petitioners do not claim such right to the office and not one of them is the incumbent Solicitor General. Hence, they have no personality to file the suit (Castro vs. Del Rosario, Jan. 30, 1967, 19 SCRA 197; City of Manila & Antonio Villegas vs. Abelardo Subido, et. al., May 20, 1966, 17 SCRA 231-232, 235-236; Nacionalista Party vs. Bautista, 85 Phil. 101; and Nacionalista Party vs. Vera, 85 Phil. 127). It is established jurisprudence that the legality of the appointment or election of a public officer cannot be questioned collaterally through a petition for prohibition which assails the validity of his official acts.

The foregoing governing legal principles on public officers are re-stated in order to avert any misapprehension that they have been eroded by Our resolution in the instant petition.

Because of the far-reaching implications of the herein petition, the Court resolved to pass upon the issues raised.

II

This Court already ruled in the Ratification Cases "that there is no further judicial obstacle to the new Constitution being considered in force and effect." As Chief Justice Makalintal stressed in the Habeas Corpus cases, the issue as to its effectivity "has been laid to rest by Our decision in Javellana versus Executive Secretary (L-36142, March 31, 1973, 50 SCRA 30, 141), and of course by the existing political realities both in the conduct of national affairs and in our relation with countries" (Aquino, Jr. vs. Enrile and 8 companion cases, L-35546, L-35538-40, L-35538-40, L-35547, L-35556, L-35571 and L-35573, Sept. 17, 1971, 59 SCRA 183, 241).

III

In the aforesaid Habeas Corpus cases, We affirmed the validity of Martial Law Proclamation No. 1081 issued on September 22, 1972 by President Marcos because there was no arbitrariness in the issuance of said proclamation pursuant to the 1935 Constitution that the factual bases had not disappeared but had even been exacerbated; that the question is to the validity of the Martial Law proclamation has been foreclosed by Section 3(2) of Article XVII of the 1973 Constitution, which provides that "all proclamations, orders, decrees, instructions and acts promulgated, issued or done by the incumbent President shall be part of the law of the land and shall remain valid, legal, binding and effective even after the lifting of Martial Law or the ratification of this Constitution ..."; and that "any inquiry by this Court in the present cases into the constitutional sufficiency of the factual bases for the proclamation of Martial Law, has become moot and purposeless as a consequence of the general referendum of July 27-28, 1973. The question propounded to the voters was: "Under the (1973) Constitution, the President, if he so desires, can continue in office beyond 1973. Do you want President Marcos to continue beyond 1973 and finish the reforms be initiated under Martial Law?" The overwhelming majority of those who cast their ballots, including citizens beyond 15 and 18 years, voted affirmatively on the proposal. The question was thereby removed from the area of presidential power under the Constitution and transferred to the seat of sovereignty itself. Whatever may be the nature of the exercise of that power by the President in the beginning — whether or not purely political and therefore non-justiciable — this Court is precluded from applying its judicial yardstick to the act of the sovereign." (Aquino, Jr. vs. Enrile, supra, 59 SCRA 183, 240-242).

Under the 1935 Constitution, President Ferdinand E. Marcos was duly reelected by the vote of the sovereign people in the Presidential elections of 1969 by an overwhelming vote of over 5,000,000 electors as against 3,000,000 votes for his rival, garnering a majority of from about 896,498 to 1,436,118 (Osmeña vs. Marcos, Presidential Election Contest No. 3, Jan. 8, 1973). While his term of office under the 1935 Constitution should have terminated on December 30, 1973, by the general referendum of July 27-28, 1973, the sovereign people expressly authorized him to continue in office even beyond 1973 under the 1973 Constitution (which was validly ratified on January 17, 1973 by the sovereign people) in order to finish the reforms he initiated under Martial Law; and as aforestated, as this was the decision of the people, in whom "sovereignty resides ... and all government authority emanates ...," it is therefore beyond the scope of judicial inquiry (Aquino, Jr. vs. Enrile, et. al., supra, p. 242).

The logical consequence therefore is that President Marcos is a de jure President of the Republic of the Philippines.ℒαwρhi৷

IV

The next issue is whether he is the incumbent President of the Philippines within the purview of Section 3 of Article XVII on the transitory provisions of the new or 1973 Constitution. As heretofore stated, by virtue of his reelection in 1969, the term of President Marcos tinder the 1935 Constitution was to terminate on December 30, 1973. The new Constitution was approved by the Constitutional Convention on November 30, 1972, still during his incumbency. Being the only incumbent President of the Philippines at the time of the approval of the new Constitution by the Constitutional Convention, the Constitutional Convention had nobody in mind except President Ferdinand E. Marcos who shall initially convene the interim Assembly. It was the incumbent President Marcos alone who issued Martial Law Proclamation No. 1081 on September 22, 1972 and issued orders and decrees as well as instructions and performed other acts as President prior to the approval on November 30, 1972 of the new Constitution by the Constitutional Convention and prior to its ratification on January 17, 1973 by the people. Consequently, since President Marcos was the only incumbent President at the time, because his term under the 1935 Constitution has yet to expire on December 30, 1973, the Constitutional Convention, in approving the new Constitution, had in mind only him when in Section 3(2) of Article XVII of the new Constitution it provided "that all the proclamations, orders, decrees, instructions and acts promulgated, issued or done by the incumbent President shall be part of the law of the land, and shall remain valid, legal, binding and effective even after lifting of Martial Law or the ratification of this Constitution, unless modified, revoked or superseded by subsequent proclamations, orders, decrees, instructions or other acts of the incumbent President, or unless expressly and explicitly modified or repealed by the regular National Assembly."

The term incumbent President of the Philippines employed in Section 9 of the same Article XVII likewise could only refer to President Ferdinand E. Marcos. .

This conclusion is further buttressed by Section 10 of the same Article XVII which provides that "the incumbent members of the Judiciary may continue in office until they reach the age of 70 years unless sooner replaced in accordance with the preceding section hereof." There can be no dispute that the phrase "incumbent members of the Judiciary" can only refer to those members of the Judiciary who were already Justices and Judges of the various courts of the country at the time the Constitutional Convention approved the new Constitution on November 30, 1972 and when it was ratified.

Because President Ferdinand E. Marcos is the incumbent President referred to in Article XVII of the transitory provisions of the 1973 Constitution, he can "continue to exercise the powers and prerogatives under the nineteen hundred and thirty five Constitution and the powers vested in the President and the Prime Minister under this Constitution until he calls upon the interim National Assembly to elect the interim President and the interim Prime Minister, who shall then exercise their legislative powers vested by this Constitution (Sec. 3[l], Art. XVII, 1973 Constitution).

Under the 1935 Constitution, the President is empowered to proclaim martial law. Under the 1973 Constitution, it is the Prime Minister who is vested with such authority (Sec. 12, Art. IX, 1973 Constitution).ℒαwρhi৷

WE affirm the proposition that as Commander-in-Chief and enforcer or administrator of martial law, the incumbent President of the Philippines can promulgate proclamations, orders and decrees during the period of Martial Law essential to the security and preservation of the Republic, to the defense of the political and social liberties of the people and to the institution of reforms to prevent the resurgence of rebellion or insurrection or secession or the threat thereof as well as to meet the impact of a worldwide recession, inflation or economic crisis which presently threatens all nations including highly developed countries (Rossiter, Constitutional Dictatorship, 1948 Ed., pp. 7, 303; see also Chief Justice Stone's Concurring Opinion in Duncan vs. Kahanamoku, 327 US 304).

To dissipate all doubts as to the legality of such law-making authority by the President during the period of Martial Law, Section 3(2) of Article XVII of the New Constitution expressly affirms that all the proclamations, orders, decrees, instructions and acts he promulgated, issued or did prior to the approval by the Constitutional Convention on November 30, 1972 and prior to the ratification by the people on January 17, 1973 of the new Constitution, are "part of the law of the land, and shall remain valid, legal, binding and effective even after the lifting of Martial Law or the ratification of this Constitution, unless modified, revoked or superseded by subsequent proclamations, orders, decrees, instructions or other acts of the incumbent President, or unless expressly and specifically modified or repealed by the regular National Assembly."

The entire paragraph of Section 3(2) is not a grant of authority to legislate, but a recognition of such power as already existing in favor of the incumbent President during the period of Martial Law.

Dr. Jose M. Aruego, noted authority in Constitutional Law as well as delegate to the 1935 and 1971 Constitutional Conventions, shares this view, when he states thus:

108. ... — These Presidential Proclamations, order, decrees, instructions, etc. had been issued by the incumbent President in the exercise of what he consider to be his powers under martial law, in the same manner that the lawmaking body had enacted several thousand statutes in the exercise of what it consider to be its power under the Organic Laws. Both these classes of rules of law — by the President and by the lawmaking body — were, under general principles of constitutional law, presumed to be constitutional until declared unconstitutional by the agency charged with the power and function to pass upon constitutional law question — the Judiciary, at the apex of which is the Supreme Court. Hence, the inclusion of both group of rules — President rules and legislative rules — in the new Constitution for the people to approve or disapprove in the scheduled plebiscite. (Aruego, The New Constitution, 1973 Ed., p. 230).

Delegate Arturo Pacificador, a Floor Leader of the 1971 Constitutional Convention, in explaining Section 3(2) of Article XVII, underscores this recognition of the legislative power of the incumbent President as Commander-in-Chief during martial Law, thus:

The second paragraph sets forth the understanding of the Convention of the nature, extent and scope of the powers of the incumbent President of the Philippines, under martial law. It expressly recognizes that the commander-in-chief, under martial law, can exercise all necessary powers to meet the perils of invasion, insurrection, rebellion or imminent danger thereof. This provision complements Section 7, Article XVII of the Constitution that "all existing laws not inconsistent with this Constitution shall remain operative until amended, modified, or repealed by the National Assembly."

The second paragraph is an express recognition on the part of the framers of the new Constitution of the wisdom of the proclamations, orders, decrees and instructions by the incumbent President in the light of the prevailing conditions obtaining in the country. (Montejo, New Constitution, 1973 Ed., p. 314, emphasis supplied).

The power under the second clause of Section 3(2) is not limited merely to modifying, revoking or superseding all his proclamations, orders, decrees, instructions or other acts promulgated, issued or done prior to the ratification of the 1973 Constitution. But even if the scope of his legislative authority thereunder is to be limited to the subject matter of his previous proclamations, orders, decrees or instructions or acts, the challenged Proclamations Nos. 1366 and 1366-A, as well as Presidential Decrees Nos. 629, 630, 637 and 637-A are analogous to the referenda of January, 1973 and July 27-28, 1973.

The actions of the incumbent President are not without historical precedents. It should be recalled that the American Federal Constitution, unlike the 1935 or 1973 Constitution of the Philippines, does not confer expressly on the American President the power to proclaim Martial Law or to suspend the writ of habeas corpus. And yet President Abraham Lincoln during the Civil War, and President Roosevelt during the Second World War, without express constitutional or statutory authority, created agencies and offices and appropriated public funds therefor in connection with the prosecution of the war. Nobody raised a finger to oppose the same. In the case of President Roosevelt, the theater of war was not in the United States. It was thousands of miles away, in the continents of Europe and Africa and in the Far East. In the Philippines, military engagements between the government forces and the rebels and secessionists are going on, emphasizing the immediacy of the peril to the safety of the Republic itself. There is therefore greater reason to affirm this law-making authority in favor of the incumbent President during the period of Martial Law.

Petitioners further argue that the President should call the interim National Assembly as required of him by Section 3(1) of Article XVII, which National Assembly alone can exercise legislative powers during the period of transition.

It should be stressed that there is a distinction between the existence of the interim Assembly and its organization as well as its functioning. The interim Assembly already existed from the time the new Constitution was ratified; because Section 1 of Article XVII states that "there shall be an interim National Assembly which shall exist immediately upon the ratification of this Constitution and shall continue until the members of the regular National Assembly shall have been elected and shall have assumed office ..." However, it cannot function until it is convened and thereafter duly organized with the election of its interim speaker and other officials. This distinction was clearly delineated in the case of Mejia, et. al. vs. Balolong, et. al. where We held that from the phrase "the City of Dagupan, which is hereby created, ...," Dagupan City came into existence as a legal entity upon the approval of its Charter; but the date of the organization of the city government was to be fixed by the President of the Philippines, and necessarily was subsequent to the approval of its organic law (81 Phil. 486, 490-492).

Petitioners likewise urge that the President should have convened the interim Assembly before the expiration of his term on December 30, 1973. The Constitutional Convention intended to leave to the President the determination of the time when he shall initially convene the interim National Assembly, consistent with the prevailing conditions of peace and order in the country. This was revealed by no less than Delegate Jose M. Aruego himself, who stated:

109. Convening the interim National Assembly. — The Constitutional Convention could have fixed the date when the interim National Assembly should convene itself as it did with respect to the regular National Assembly. There would not have been any need for any Presidential call as there is none, with respect to the regular National Assembly.

But considering that the country had been already placed under martial law rule the success of which was conditioned upon the unity not only of planning but also in the execution of plans, many delegates felt that the incumbent President should be given the discretion to decide when the interim National Assembly should be convened because he would need its counsel and help in the administration of the affairs of the country.

And in the event that it should convene, why did the interim National Assembly not fix its tenure, and state expressly when the election of the members of the regular National Assembly should be called? Many of the delegates felt that they could not be sure even of the proximate date when the general conditions of peace and order would make possible orderly elections, ... (The New Philippine Constitution by Aruego, 1973 Ed., p. 230).

This was also disclosed by Delegate Arturo F. Pacificador, who affirmed:

Under the first paragraph of this section, the incumbent President is mandated to initially convene the interim National Assembly.

Note that the word used is "shall" to indicate the mandatory nature of the desire of the Constitutional Convention that the interim National Assembly shall be convened by the incumbent President. The Constitutional Convention, however, did not fix any definite time at which the incumbent President shall initially convene the interim National Assembly. This decision was deliberate to allow the incumbent President enough latitude of discretion to decide whether in the light of the emergency situation now prevailing, conditions have already normalized to permit the convening of the interim National Assembly. (Montejo, The New Constitution, 1973 Ed., p. 314).

It is thus patent that the President is given the discretion as to when he shall convene the interim National Assembly after determining whether the conditions warrant the same.

His decision to defer the initial convocation of the interim National Assembly was supported by the sovereign people at the referendum in January, 1973 when the people voted to postpone the convening of the interim National Assembly until after at least seven (7) years from the approval of the new Constitution. And the reason why the same question was eliminated from the questions to be submitted at the referendum on February 27, 1975, is that even some members of the Congress and delegates of the Constitutional Convention, who are already ipso facto members of the interim National Assembly, are against such inclusion; because the issue was already decided in the January, 1973 referendum by the sovereign people indicating thereby their disenchantment with any Assembly as the former Congress failed to institutionalize the reforms they demanded and had wasted public funds through the endless debates without relieving the suffering of the general mass of citizenry.

Petitioners likewise impugn the scheduled referendum on the ground that there can be no true expression of the people's will due to the climate of fear generated by Martial Law and that the period of free discussion and debate is limited to two weeks from February 7 to 21, without right of rebuttal from February 22 until the day of the referendum.

The first objection is not tenable because during the senatorial elections in 1951 and 1971, the privilege of the writ of habeas corpus was suspended, during which period of suspension there was fear of arrest and detention. Yet the election was so free that a majority of the senatorial candidates of the opposition party were elected and there was no reprisal against or harrassment of any voter thereafter. The same thing was true in the referendum of July 27-28, 1973, which was done also through secret ballot. There was no Army, PC, or police truck, bus or other mode of transportation utilized to transport the voters to the various precincts of the country. There was no PC, Army or police personnel assigned to each election precinct or voting booth. And such assignment would be impossible; because the combined membership of the police, PC, and Army was then as now very much less than the number of precincts, let alone the number of voting booths. And no one would be left to fight the rebels or to maintain peace and order. And as heretofore stated, the voting was done in secrecy. Only one voter at a time entered the voting booth. The voting was orderly. There was no buying of votes or buying the right not to vote. And as opined by the Solicitor General, every qualified voter who fails to register or go to the polling place on referendum day is subject to prosecution; but failure to fill up the ballot is not penalized.

In the Habeas Corpus cases, We declared that the result of the referendum on July 27-28, 1973 was a decision by the sovereign people which cannot be reviewed by this Court. Then again, it is too late now for petitioners to challenge the validity of said referendum.

Moreover, as stressed by the Solicitor General, the previous referenda of January and July, 1973, were a lot more free than the elections under the Old Society previous to the proclamation of Martial Law, where the will of the voter was subverted through "guns, goons and gold", as well as through fraud. All modes of transportation were utilized by the candidates and their leaders to transport the voters to the precinct. The voters were likewise wined and dined and so prostituted that they refused to vote until the required monetary persuasion was proffered, if they were not being subjected to various forms of intimidation. In some areas, the ballots were filled up and the election returns were accomplished before election day. Even animals and dead persons voted. The decisions in the electoral contests filed after every election under the Old Society attest to this very unflattering fact in our history.

The second objection that the two-week period for free debate is too short, is addressed to the wisdom of the President who may still amend the proclamation to extend the period of free discussion.

At any rate, such a brief period of discussion has its counterpart in previous plebiscites for constitutional amendments. Under the Old Society, 15 days were allotted for the publication in three consecutive issues of the Official Gazette of the women's suffrage amendment to the Constitution before the scheduled plebiscite on April 30, 1937 (Com. Act No. 34). The constitutional amendment to append as ordinance the complicated Tydings-Kocialskowski Act of the US Federal Congress to the 1935 Constitution was published in only three consecutive issues of the Official Gazette for 10 days prior to the scheduled plebiscite (Com. Act No. 492). For the 1940 constitutional amendments providing for the bicameral Congress, the reelection of the President and Vice-President, and the creation of the Commission on Elections, 20 days of publication in three consecutive issues of the Official Gazette was fixed (Com. Act No. 517).And the Parity Amendment, an involved constitutional amendment affecting the economy as well as the independence of the Republic was publicized in three consecutive issues of the Official Gazette for 20 days prior to the plebiscite (Rep. Act No. 73).

The period of 14 days for free discussion can compare favorably with the period required for publication of the proposed amendments under the Old Society.

WHEREFORE, PRESIDENT FERDINAND E. MARCOS IS HEREBY DECLARED DE JURE PRESIDENT OF THE REPUBLIC, PRESIDENTIAL PROCLAMATIONS NOS. 1366 AND 1366-A AND PRESIDENTIAL DECREES NOS. 629,630, 637 AND 637-A ARE HEREBY DECLARED VALID, AND THE PETITION IS HEREBY DISMISSED. WITHOUT COSTS.

Aquino, J, concurs.

Makatintal, C.J., concurs in the result.

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