ideas, an interplay of knowledgeable minds. There are though well-defined limits.
One may not
advocate disorder in the name of protest, much less preach rebellion under the cloak of dissent. What i
mean to stress is that except on a showing of clear and present danger, there must be respect for the
traditional liberties that make a society truly [Link] virtual lawlibrary
TEEHANKEE, J., dissenting:chanrob1es virtual 1aw library
I. On the merits: I dissent from the majoritys dismissal of the petitions for lack of merit and vote to
grant the petitions for the following reasons and considerations:chanrob1es virtual 1aw library
1. It is undisputed that neither the 1935 Constitution nor the 1973 Constitution grants to the
incumbent President the constituent power to propose and approve amendments to the Constitution to
be submitted to the people for ratification in a plebiscite.
The 1935 Constitution expressly vests the constituent power in Congress, by a three-fourths vote of all
its members, to propose amendments or call a constitutional convention for the purpose. 1
The 1973 Constitution expressly vests the constituent power in the regular National Assembly to
propose amendments (by a three-fourths vote of all its members) or "call a constitutional convention"
(by a two-thirds vote of all its members) or "submit the question of calling such convention to the
electorate in an election" (by a majority vote of all its members). 2
The transitory provisions of the 1973 Constitution expressly vest the constituent power during the
period of transition in the interim National Assembly "upon special call by the interim Prime Minister
(the incumbent President 3). by a majority vote of all its members (to) propose amendments." 4
Since the Constitution provides for the organization of the essential departments of government,
defines and delimits the powers of each and prescribes the manner of the exercise of such powers, and
the constituent power has not been granted to but has been withheld from the President or Prime
Minister, it follows that the Presidents questioned decrees 5 proposing and submitting constitutional
amendments directly to the people (without the intervention of the interim National Assembly in whom
the power is expressly vested) are devoid of constitutional and legal basis.
2. The doctrine in the leading case of Tolentino v. Comelec is controlling in the case at bar. In therein
declaring null and void the acts of the 1971 Constitutional Convention and of the Comelec in calling a
plebiscite with the general elections scheduled for November 8, 1971 for the purpose of submitting for
the peoples ratification an advance amendment reducing the voting age from 21 years to 18 years,
and issuing writs of prohibition and injunction against the holding of the plebiscite, this Court speaking
through Mr. Justice Barredo ruled that
The Constitutional provisions on amendments 6 "dealing with the procedure or manner of amending
the fundamental law are binding upon the Convention and the other departments of the government,
(and) are no less binding upon the people" ; 7
"As long as any amendment is formulated and submitted under the aegis of the present Charter,
any proposal for such amendment which is not in conformity with the letter, spirit and intent of the
Charter for effecting amendments, cannot receive the sanction of this Court" ; 8
"The real issue here cannot be whether or not the amending process delineated by the present
Constitution may be disregarded in favor of allowing the sovereign people to express their decision on
the proposed amendments, if only because it is evident that the very idea of departing from the
fundamental law is anachronistic in the realm of constitutionalism and repugnant to the essence of the
rule of law" ; 9 and
Accordingly barred the plebiscite as improper and premature, since "the provisional nature of the
proposed amendment and the manner of its submission to the people for ratification or rejection" did
not "conform with the mandate of the people themselves in such regard, as expressed in the
Constitution itself", 10 i.e. the mandatory requirements of the amending process as set forth in the
Article on Amendments.
3. Applying the above rulings of Tolentino to the case at bar, mutatis mutandis, it is clear that where
the proposed amendments are violative of the Constitutional mandate on the amending process not
merely for being a "partial amendment" of a "temporary or provisional character" (as in Tolentino) but
more so for not being proposed and approved by the department vested by the Constitution with the
constituent power to do so, and hence transgressing the substantive provision that it is only the
interim National Assembly, upon special call of the interim Prime Minister, by a majority vote of all its
members that may propose the amendments, the Court must declare the amendment proposals null
and void.
4. This is so because the Constitution is a "superior paramount law, unchangeable by ordinary means"
11 but only by the particular mode and manner prescribed therein by the people. As stressed by
Cooley, "by the Constitution which they establish, (the people) not only tie up the hands of their official
agencies but their own hands as well; and neither the officers of the State, nor the whole people as an
aggregate body, are at liberty to take action in opposition to this fundamental law." 12
The vesting of the constituent power to propose amendments in the legislative body (the regular
National Assembly or the interim National Assembly during the transition period) or in a constitutional
contention called for the purpose is in accordance with universal practice. "From the very necessity of
the case" Cooley points out "amendments to an existing constitution, or entire revisions of it, must be
prepared and matured by some body of representatives chosen for the purpose. It is obviously
impossible for the whole people to meet, prepare, and discuss the proposed alterations, and there
seems to be no feasible mode by which an expression of their will can be obtained, except by asking it
upon the single point of assent or disapproval." This body of representatives vested with the
constituent power "submits the result of their deliberations" and "puts in proper form the questions of
amendment upon which the people are to pass" for ratification or rejection. 13
5. The Court in Tolentino thus rejected the argument "that the end sought to be achieved is to be
desired" and in denying reconsideration, in paraphrase of the late Claro M. Recto, declared that "let
those who would put aside, invoking grounds at best controversial, any mandate of the fundamental
law purportedly in order to attain some laudable objective bear in mind that someday somehow others
with purportedly more laudable objectives may take advantage of the precedent and continue the
destruction of the Constitution, making those who laid down the precedent of justifying deviations from
the requirements of the Constitution the victims of their own folly."cralaw virtua1aw library