G.R. No. 34150, October 16, 1971,
♦ Decision,
Barredo, [J]
♦ Separate Opinion,
Makalintal, [J]
♦ Concurring Opinion,
Reyes J.B.L., Zaldivar, Castro & Makasiar [JJ]
♦ Concurring & Dissenting Opinion,
Fernando, [J]
EN BANC
G.R. No. L-34150 October 16, 1971
ARTURO M. TOLENTINO, petitioner,
vs.
COMMISSION ON ELECTIONS, and THE CHIEF ACCOUNTANT, THE AUDITOR, and THE DISBURSING OFFICER OF THE 1971 CONSTITUTIONAL CONVENTION, respondents, RAUL S. MANGLAPUS, JESUS G. BARRERA, PABLO S. TRILLANA III, VICTOR DE LA SERNA, MARCELO B. FERNAN, JOSE Y. FERIA, LEONARDO SIGUION REYNA, VICTOR F. ORTEGA, and JUAN V. BORRA, Intervenors.
Arturo M. Tolentino in his own behalf.
Ramon A. Gonzales for respondents Chief Accountant and Auditor of the 1971 Constitutional Convention.
Emmanuel Pelaez, Jorge M. Juco and Tomas L. Echivarre for respondent Disbursing Officer of the 1971 Constitutional Convention.
Intervenors in their own behalf.
Separate Opinions
FERNANDO, J., concurring and dissenting:
There is much to be said for the opinion of the Court penned by Justice Barredo, characterized by clarity and vigor, its manifestation of fealty to the rule of law couched in eloquent language, that commands assent. As the Constitution occupies the topmost rank in the hierarchy of legal norms, Congress and Constitutional Convention alike, no less than this Court, must bow to its supremacy. Thereby constitutionalism asserts itself. With the view I entertain of what is allowable, if not indeed required by the Constitution, my conformity does not extend as far as the acceptance of the conclusion reached. The question presented is indeed novel, not being controlled by constitutional prescription, definite and certain. Under the circumstances, with the express recognition in the Constitution of the powers of the Constitutional Convention to propose amendments, I cannot discern any objection to the validity of its action there being no legal impediment that would call for its nullification. Such an approach all the more commends itself to me considering that what was sought to be done is to refer the matter to the people in whom, according to our Constitution, sovereignty resides. It is in that sense that, with due respect, I find myself unable to join my brethren.
I. It is understandable then why the decisive issue posed could not be resolved by reliance on, implicit in the petition and the answer of intervenors, such concepts as legislative control of the constitutional convention referred to by petitioner on the one hand or, on the other, the theory of conventional sovereignty favored by intervenors. It is gratifying to note that during the oral argument of petitioner and counsel for respondents and intervenors, there apparently was a retreat from such extreme position, all parties, as should be the case, expressly avowing the primacy of the Constitution, the applicable provision of which as interpreted by this Court, should be controlling on both Congress and the Convention. It cannot be denied though that in at least one American state, that is Pennsylvania, there were decisions announcing the doctrine that the powers to be exercised by a constitutional convention are dependent on a legislative grant, in the absence of any authority conferred directly by the fundamental law. The result is a convention that is subordinate to the lawmaking body. Its field of competence is circumscribed. It has to look to the latter for the delimitation of its permissible scope of activity. It is thus made subordinate to the legislature. Nowhere has such a view been more vigorously expressed than in the Pennsylvania case of Wood's Appeal.1 Its holding though finds no support under our constitutional provision.
It does not thereby follow that while free from legislative control, a constitutional convention may lay claim to an attribute sovereign in character.ℒαwρhi৷ The Constitution is quite explicit that it is to the people, and to the people alone, in whom sovereignty resides.2 Such a prerogative is therefore withheld from a convention. It is an agency entrusted with the responsibility of high import and significance it is true; it is denied unlimited legal competence though. That is what sovereignty connotes. It has to yield to the superior force of the Constitution. There can then be no basis for the exaggerated pretension that it is an alter ego of the people. It is to be admitted that there are some American state decisions, the most notable of which is Sproule v. Fredericks,3 a Mississippi case, that dates back to 1892, that yield a different conclusion. The doctrine therein announced cannot bind us. Our Constitution makes clear that the power of a constitutional convention is not sovereign. It is appropriately termed constituent, limited as it is to the purpose of drafting a constitution or proposing revision or amendments to one in existence, subject in either case to popular approval.
The view that commends itself for acceptance is that legislature and constitutional convention, alike recognized by the Constitution, are coordinate, there being no superiority of one over the other. Insofar as the constituent power of proposing amendments to the Constitution is concerned, a constitutional convention enjoys a wide sphere of autonomy consistently with the Constitution which can be the only source of valid restriction on its competence. It is true it is to the legislative body that the call to a convention must proceed, but once convened, it cannot in any wise be interfered with, much less controlled by Congress. A contrary conclusion would impair its usefulness for the delicate, and paramount task assigned to it. A convention then is to be looked upon as if it were one of the three coordinate departments which under the principle of separation of powers is supreme within its field and has exclusive cognizance of matters properly subject to its jurisdiction. A succinct statement of the appropriate principle that should govern the relationship between a constitutional convention and a legislative body under American law is that found in Orfield's work. Thus: "The earliest view seems to have been that a convention was absolute. The convention was sovereign and subject to no restraint. On the other hand, Jameson, whose views have been most frequently cited in decisions, viewed a convention as a body with strictly limited powers, and subject to the restrictions imposed on it by the legislative call. A third and intermediate view is that urged by Dodd — that a convention, though not sovereign, is a body independent of the legislature; it is bound by the existing constitution, but not by the acts of the legislature, as to the extent of its constituent power. This view has become increasingly prevalent in the state decisions."4
2. It is to the Constitution, and to the Constitution alone then, as so vigorously stressed in the opinion of the Court, that any limitation on the power the Constitutional, Convention must find its source. I turn to its Article XV. It reads: "The Congress in joint session assembled, by a vote of three fourths of all the Members of the Senate and of the House of Representatives voting separately, may propose amendments to this Constitution or call a convention for that purpose. Such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification."
Clearly, insofar as amendments, including revision, are concerned, there are two steps, proposal and thereafter ratification. Thus as to the former, two constituent bodies are provided for, the Congress of the Philippines in the mode therein provided, and a constitutional convention that may be called into being. Once assembled, a constitutional convention, like the Congress of the Philippines, possesses in all its plenitude the constituent power. Inasmuch as Congress may determine what amendments it would have the people ratify and thereafter take all the steps necessary so that the approval or disapproval of the electorate may be obtained, the convention likewise, to my mind, should be deemed possessed of all the necessary authority to assure that whatever amendments it seeks to introduce would be submitted to the people at an election called for that purpose. It would appear to me that to view the convention as being denied a prerogative which is not withheld from Congress as a constituent body would be to place it in an inferior category. Such a proposition I do not find acceptable. Congress and constitutional convention are agencies for submitting proposals under the fundamental law. A power granted to one should not be denied the other. No justification for such a drastic differentiation either in theory or practice exists.
Such a conclusion has for me the added reinforcement that to require ordinary legislation before the convention could be enabled to have its proposals voted on by the people would be to place a power in the legislative and executive branches that could, whether by act or omission, result in the frustration of the amending process. I am the first to admit that such likelihood is remote, but if such a risk even if minimal could be avoided, it should be, unless the compelling force of an applicable constitutional provision requires otherwise. Considering that a constitutional convention is not precluded from imposing additional restrictions on the powers of either the executive or legislative branches, or, for that matter, the judiciary, it would appear to be the better policy to interpret Article XV in such a way that would not sanction such restraint on the authority that must be recognized as vested in a constitutional convention. There is nothing in such a view that to my mind would collide with a reasonable interpretation of Article XV. It certainly is one way by which freed from pernicious abstractions, it would be easier to accommodate a constitution to the needs of an unfolding future. That is to facilitate its being responsive to the challenge that time inevitably brings in its wake.
From such an approach then, I am irresistibly led to the conclusion that the challenged resolution was well within the power of the convention.ℒαwρhi৷ That would be to brush aside the web of unreality spun from a too-restrictive mode of appraising the legitimate scope of its competence. That would be, for me, to give added vigor and life to the conferment of authority vested in it, attended by such grave and awesome responsibility.
3. It becomes pertinent to inquire then whether the last sentence of Article XV providing that such amendment shall be valid when submitted and thereafter approved by the majority of the votes cast by the people at an election is a bar to the proposed submission. It is the conclusion arrived at by my brethren that there is to be only one election and that therefore the petition must be sustained as only when the convention has finished its work should all amendments proposed be submitted for ratification. That is not for me, and I say this with respect, the appropriate interpretation. It is true that the Constitution uses the word "election" in the singular, but that is not decisive. No undue reliance should be accorded rules of grammar; they do not exert a compelling force in constitutional interpretation. Meaning is to be sought not from specific language in the singular but from the mosaic of significance derived from the total context. It could be, if it were not thus, self-defeating. Such a mode of construction does not commend itself. The words used in the Constitution are not inert; they derive vitality from the obvious purposes at which they are aimed. Petitioner's stress on linguistic refinement, while not implausible does not, for me, carry the day.
It was likewise argued by petitioner that the proposed amendment is provisional and therefore is not such as was contemplated in this article. I do not find such contention convincing. The fact that the Constitutional Convention did seek to consult the wishes of the people by the proposed submission of a tentative amendatory provision is an argument for its validity. It might be said of course that until impressed with finality, an amendment is not to be passed upon by the electorate. There is plausibility in such a view. A literal reading of the Constitution would support it. The spirit that informs it though would not, for me, be satisfied. From its silence I deduce the inference that there is no repugnancy to the fundamental law when the Constitutional Convention ascertains the popular will. In that sense, the Constitution, to follow the phraseology of Thomas Reed Powel, is not silently silent but silently vocal. What I deem the more important consideration is that while a public official, as an agent, has to locate his source of authority in either Constitution or statute, the people, as the principal, can only be limited in the exercise of their sovereign powers by the express terms of the Constitution. A concept to the contrary would to my way of thinking be inconsistent with the fundamental principle that it is in the people, and the people alone, that sovereignty resides.
4. The constitutional Convention having acted within the scope of its authority, an action to restrain or prohibit respondent Commission on Elections from conducting the plebiscite does not lie. It should not be lost sight of that the Commission on Elections in thus being charged with such a duty does not act in its capacity as the constitutional agency to take charge of all laws relative to the conduct of election. That is a purely executive function vested in it under Article X of the Constitution.5 It is not precluded from assisting the Constitutional Convention if pursuant to its competence to amend the fundamental law it seeks, as in this case, to submit a proposal, even if admittedly tentative, to the electorate to ascertain its verdict. At any rate, it may be implied that under the 1971 Constitutional Convention Act, it is not to turn a deaf ear to a summons from the Convention to aid it in the legitimate discharge of its functions.6
The aforesaid considerations, such as they are, but which for me have a force that I mind myself unable to overcome, leave me no alternative but to dissent from my brethren, with due acknowledgement of course that from their basic premises, the conclusion arrived at by them cannot be characterized as in any wise bereft of a persuasive quality of a high order.
Footnotes
1 Wood's Appeal, 75 Pa. 59 (1874) cited in Malcolm and Laurel. Cases in Constitutional Law, pp. 1, 4-5 (1936). It was therein stated: "In a governmental and proper sense, law is the highest act of a people's sovereignty while their government and Constitution remain unchanged. It is the supreme will of the people expressed in the forms and by the authority of their Constitution. It is their own appointed mode through which they govern themselves, and by which they bind themselves. So long as their frame of government is unchanged in its grant of all legislative power, these laws are supreme over all subjects unforbidden by the instrument itself. The calling of a convention, and regulating its action by law, is not forbidden in the Constitution. It is a conceded manner, through which the people may exercise the rights reserved in the bill of rights. ... The right of the people to restrain their delegates by law cannot be denied, unless the power to call a convention by law, and the right of self protection be also denied."
2 According to Sec. 1 of Art. II: "Sovereignty resides in the people and all government authority emanates from them." .
3 11 So. 472. The following excerpt appears in the opinion: "We have spoken of the constitutional convention as a sovereign body, and that characterization perfectly defines the correct view, in our opinion, of the real nature of that august assembly. It is the highest legislative body known to freemen in a representative government. It is supreme in its sphere. It wields the powers of sovereignty, specially delegated to it, for the purpose and the occasion, by the whole electoral body, for the good of the whole commonwealth. The sole limitation upon its powers is that no change in the form of government shall be done or attempted. The spirit of republicanism must breathe through every part of the framework, but the particular fashioning of the parts of this framework is confided to the wisdom the faithfulness, and the patriotism of this great convocation, representing the people in their sovereignty." The Sproule decision was cited with approval four years later by the Mississippi Supreme Court anew in Dickson v. State, 20 So. 841. A 1908 decision of the Southern State of Oklahoma, State v. Scales, 97 P. 584, admitted the controversial character of the Sproule dictum.
4 Orfield on The Amending of the Federal Constitution, 45-46 (1942).
5 According to Sec. 2 of Article X of the Constitution: "The Commission on Elections shall have exclusive charge of its enforcement and administration of all laws relative to the conduct of elections and shall exercise all other functions which may be conferred upon it by law." Cf. Abcede v. Imperial, 103 Phil. 136 (1958).
6 "According to Sec. 14 of the 1971 Constitutional Convention Act (1970):"Administration and Technical Assistance. -- All government entities, agencies and instrumentalities, including the Senate and House of Representatives, shall place at the disposal of the Convention such personnel premises, and furniture thereof as can, in their judgment be spared without detriment to public service, without cost, refund or additional pay."
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