Dark Warden

2009-12-14T22:45:00.000-08:00

For some weird reason, I was called to recite today, totally caught off guard...again. I was not able to read the case or even a digest beforehand. However, I managed to pull through for one reason or another. I think his is not a good week for me. I'll make up next time. Definitely.

Nevertheless, i was able to eat free lunch today. That's the only good thing that happened today. :) I guess I can still smile

the past week...

2009-12-14T18:00:00.000-08:00

A lot has happened in my life in the past week. It as if I am totally different person from whom I was before. I am now single. I just broke up with my gf last week. It was really sad but I guess she should be happier this way. Then, I now have a new haircut. i had long hair but now I have very short hair. :) My study habits also had gone from bad to worse. I could not concentrate considering that vacation is just around the corner. I am really quite lost with who I am right now. I need to find myself. I need some enlightenment

PNB V CA

2009-12-09T17:08:00.001-08:00

Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 97995 January 21, 1993

PHILIPPINE NATIONAL BANK, petitioner,
vs.
COURT OF APPEALS AND B.P. MATA AND CO., INC., respondents.

Roland A. Niedo for petitioner.

Benjamin C. Santos Law Office for respondent.

ROMERO, J.:

Rarely is this Court confronted with a case calling for the delineation in broad strokes of the distinctions between such closely allied concepts as the quasi-contract called "solutio indebiti" under the venerable Spanish Civil Code and the species of implied trust denominated "constructive trusts," commonly regarded as of Anglo-American origin. Such a case is the one presented to us now which has highlighted more of the affinity and less of the dissimilarity between the two concepts as to lead the legal scholar into the error of interchanging the two. Presented below are the factual circumstances that brought into juxtaposition the twin institutions of the Civil Law quasi-contract and the Anglo-American trust.

Private Respondent B.P. Mata & Co. Inc. (Mata), is a private corporation engaged in providing goods and services to shipping companies. Since 1966, it has acted as a manning or crewing agent for several foreign firms, one of which is Star Kist Foods, Inc., USA (Star Kist). As part of their agreement, Mata makes advances for the crew's medical expenses, National Seaman's Board fees, Seaman's Welfare fund, and standby fees and for the crew's basic personal needs. Subsequently, Mata sends monthly billings to its foreign principal Star Kist, which in turn reimburses Mata by sending a telegraphic transfer through banks for credit to the latter's account.

Against this background, on February 21, 1975, Security Pacific National Bank (SEPAC) of Los Angeles which had an agency arrangement with Philippine National Bank (PNB), transmitted a cable message to the International Department of PNB to pay the amount of US$14,000 to Mata by crediting the latter's account with the Insular Bank of Asia and America (IBAA), per order of Star Kist. Upon receipt of this cabled message on February 24, 1975, PNB's International Department noticed an error and sent a service message to SEPAC Bank. The latter replied with instructions that the amount of US$14,000 should only be for US$1,400.

On the basis of the cable message dated February 24, 1975 Cashier's Check No. 269522 in the amount of US$1,400 (P9,772.95) representing reimbursement from Star Kist, was issued by the Star Kist for the account of Mata on February 25, 1975 through the Insular Bank of Asia and America (IBAA).

However, fourteen days after or on March 11, 1975, PNB effected another payment through Cashier's Check No. 270271 in the amount of US$14,000 (P97,878.60) purporting to be another transmittal of reimbursement from Star Kist, private respondent's foreign principal.

Six years later, or more specifically, on May 13, 1981, PNB requested Mata for refund of US$14,000 (P97,878.60) after it discovered its error in effecting the second payment.

On February 4, 1982, PNB filed a civil case for collection and refund of US$14,000 against Mata arguing that based on a constructive trust under Article 1456 of the Civil Code, it has a right to recover the said amount it erroneously credited to respondent Mata.¹

After trial, the Regional Trial Court of Manila rendered judgment dismissing the complaint ruling that the instant case falls squarely under Article 2154 on solutio indebiti and not under Article 1456 on constructive trust. The lower court ruled out constructive trust, applying strictly the technical definition of a trust as "a right of property, real or personal, held by one party for the benefit of another; that there is a fiduciary relation between a trustee and a cestui que trust as regards certain property, real, personal, money or choses in action."²

In affirming the lower court, the appellate court added in its opinion that under Article 2154 on solutio indebiti, the person who makes the payment is the one who commits the mistake vis-a-vis the recipient who is unaware of such a mistake.³ Consequently, recipient is duty bound to return the amount paid by mistake. But the appellate court concluded that petitioner's demand for the return of US$14,000 cannot prosper because its cause of action had already prescribed under Article 1145, paragraph 2 of the Civil Code which states:

The following actions must be commenced within six years:

xxx xxx xxx

(2) Upon a quasi-contract.

This is because petitioner's complaint was filed only on February 4, 1982, almost seven years after March 11, 1975 when petitioner mistakenly made payment to private respondent.

Hence, the instant petition for certiorari proceeding seeking to annul the decision of the appellate court on the basis that Mata's obligation to return US$14,000 is governed, in the alternative, by either Article 1456 on constructive trust or Article 2154 of the Civil Code on quasi-contract.⁴

Article 1456 of the Civil Code provides:

If property is acquired through mistake or fraud, the person obtaining it is, by force of law, considered a trustee of an implied trust for the benefit of the person from whom the property comes.

On the other hand, Article 2154 states:

If something is received when there is no right to demand it, and it was unduly delivered through mistake, the obligation to return it arises.

Petitioner naturally opts for an interpretation under constructive trust as its action filed on February 4, 1982 can still prosper, as it is well within the prescriptive period of ten (10) years as provided by Article 1144, paragraph 2 of the Civil Code.⁵

If it is to be construed as a case of payment by mistake or solutio indebiti, then the prescriptive period for quasi-contracts of six years applies, as provided by Article 1145. As pointed out by the appellate court, petitioner's cause of action thereunder shall have prescribed, having been brought almost seven years after the cause of action accrued. However, even assuming that the instant case constitutes a constructive trust and prescription has not set in, the present action has already been barred by laches.

To recall, trusts are either express or implied. While express trusts are created by the intention of the trustor or of the parties, implied trusts come into being by operation of law.⁶ Implied trusts are those which, without being expressed, are deducible from the nature of the transaction as matters of intent or which are superinduced on the transaction by operation of law as matters of equity, independently of the particular intention of the parties.⁷

In turn, implied trusts are subdivided into resulting and constructive trusts.⁸ A resulting trust is a trust raised by implication of law and presumed always to have been contemplated by the parties, the intention of which is found in the nature of the transaction, but not expressed in the deed or instrument of conveyance.⁹ Examples of resulting trusts are found in Articles 1448 to 1455 of the Civil Code.¹⁰ On the other hand, a constructive trust is one not created by words either expressly or impliedly, but by construction of equity in order to satisfy the demands of justice. An example of a constructive trust is Article 1456 quoted above.¹¹

A deeper analysis of Article 1456 reveals that it is not a trust in the technical sense ¹² for in a typical trust, confidence is reposed in one person who is named a trustee for the benefit of another who is called the cestui que trust, respecting property which is held by the trustee for the benefit of the cestui que trust.¹³ A constructive trust, unlike an express trust, does not emanate from, or generate a fiduciary relation. While in an express trust, a beneficiary and a trustee are linked by confidential or fiduciary relations, in a constructive trust, there is neither a promise nor any fiduciary relation to speak of and the so-called trustee neither accepts any trust nor intends holding the property for the beneficiary.¹⁴

In the case at bar, Mata, in receiving the US$14,000 in its account through IBAA, had no intent of holding the same for a supposed beneficiary or cestui que trust, namely PNB. But under Article 1456, the law construes a trust, namely a constructive trust, for the benefit of the person from whom the property comes, in this case PNB, for reasons of justice and equity.

At this juncture, a historical note on the codal provisions on trust and quasi-contracts is in order.

Originally, under the Spanish Civil Code, there were only two kinds of quasi contracts: negotiorum gestio andsolutio indebiti. But the Code Commission, mindful of the position of the eminent Spanish jurist, Manresa, that "the number of quasi contracts may be indefinite," added Section 3 entitled "Other Quasi-Contracts."¹⁵

Moreover, even as Article 2142 of the Civil Code defines a quasi-contract, the succeeding article provides that: "The provisions for quasi-contracts in this Chapter do not exclude other quasi-contracts which may come within the purview of the preceding article."¹⁶

Indubitably, the Civil Code does not confine itself exclusively to the quasi-contracts enumerated from Articles 2144 to 2175 but is open to the possibility that, absent a pre-existing relationship, there being neither crime nor quasi-delict, a quasi-contractual relation may be forced upon the parties to avoid a case of unjust enrichment.¹⁷ There being no express consent, in the sense of a meeting of minds between the parties, there is no contract to speak of. However, in view of the peculiar circumstances or factual environment, consent is presumed to the end that a recipient of benefits or favors resulting from lawful, voluntary and unilateral acts of another may not be unjustly enriched at the expense of another.

Undoubtedly, the instant case fulfills the indispensable requisites of solutio indebiti as defined in Article 2154 that something (in this case money) has been received when there was no right to demand it and (2) the same was unduly delivered through mistake. There is a presumption that there was a mistake in the payment "if something which had never been due or had already been paid was delivered; but he from whom the return is claimed may prove that the delivery was made out of liberality or for any other just cause."¹⁸

In the case at bar, a payment in the corrected amount of US$1,400 through Cashier's Check No. 269522 had already been made by PNB for the account of Mata on February 25, 1975. Strangely, however, fourteen days later, PNB effected another payment through Cashier's Check No. 270271 in the amount of US$14,000, this time purporting to be another transmittal of reimbursement from Star Kist, private respondent's foreign principal.

While the principle of undue enrichment or solutio indebiti, is not new, having been incorporated in the subject on quasi-contracts in Title XVI of Book IV of the Spanish Civil Code entitled "Obligations incurred without contract,"¹⁹the chapter on Trusts is fairly recent, having been introduced by the Code Commission in 1949. Although the concept of trusts is nowhere to be found in the Spanish Civil Code, the framers of our present Civil Code incorporated implied trusts, which includes constructive trusts, on top of quasi-contracts, both of which embody the principle of equity above strict legalism.²⁰

In analyzing the law on trusts, it would be instructive to refer to Anglo-American jurisprudence on the subject. Under American Law, a court of equity does not consider a constructive trustee for all purposes as though he were in reality a trustee; although it will force him to return the property, it will not impose upon him the numerous fiduciary obligations ordinarily demanded from a trustee of an express trust.²¹ It must be borne in mind that in an express trust, the trustee has active duties of management while in a constructive trust, the duty is merely to surrender the property.

Still applying American case law, quasi-contractual obligations give rise to a personal liability ordinarily enforceable by an action at law, while constructive trusts are enforceable by a proceeding in equity to compel the defendant to surrender specific property. To be sure, the distinction is more procedural than substantive.²²

Further reflection on these concepts reveals that a constructive "trust" is as much a misnomer as a "quasi-contract," so far removed are they from trusts and contracts proper, respectively. In the case of a constructive trust, as in the case of quasi-contract, a relationship is "forced" by operation of law upon the parties, not because of any intention on their part but in order to prevent unjust enrichment, thus giving rise to certain obligations not within the contemplation of the parties.²³

Although we are not quite in accord with the opinion that "the trusts known to American and English equity jurisprudence are derived from the fidei commissa of the Roman Law,"²⁴ it is safe to state that their roots are firmly grounded on such Civil Law principles are expressed in the Latin maxim, "Nemo cum alterius detrimento locupletari potest," ²⁵ particularly the concept of constructive trust.

Returning to the instant case, while petitioner may indeed opt to avail of an action to enforce a constructive trust or the quasi-contract of solutio indebiti, it has been deprived of a choice, for prescription has effectively blocked quasi-contract as an alternative, leaving only constructive trust as the feasible option.

Petitioner argues that the lower and appellate courts cannot indulge in semantics by holding that in Article 1456 the recipient commits the mistake while in Article 2154, the recipient commits no mistake. ²⁶ On the other hand, private respondent, invoking the appellate court's reasoning, would impress upon us that under Article 1456, there can be no mutual mistake. Consequently, private respondent contends that the case at bar is one of solutio indebiti and not a constructive trust.

We agree with petitioner's stand that under Article 1456, the law does not make any distinction since mutual mistake is a possibility on either side — on the side of either the grantor or the grantee.²⁷ Thus, it was error to conclude that in a constructive trust, only the person obtaining the property commits a mistake. This is because it is also possible that a grantor, like PNB in the case at hand, may commit the mistake.

Proceeding now to the issue of whether or not petitioner may still claim the US$14,000 it erroneously paid private respondent under a constructive trust, we rule in the negative. Although we are aware that only seven (7) years lapsed after petitioner erroneously credited private respondent with the said amount and that under Article 1144, petitioner is well within the prescriptive period for the enforcement of a constructive or implied trust, we rule that petitioner's claim cannot prosper since it is already barred by laches. It is a well-settled rule now that an action to enforce an implied trust, whether resulting or constructive, may be barred not only by prescription but also by laches.²⁸

While prescription is concerned with the fact of delay, laches deals with the effect of unreasonable delay.²⁹ It is amazing that it took petitioner almost seven years before it discovered that it had erroneously paid private respondent. Petitioner would attribute its mistake to the heavy volume of international transactions handled by the Cable and Remittance Division of the International Department of PNB. Such specious reasoning is not persuasive. It is unbelievable for a bank, and a government bank at that, which regularly publishes its balanced financial statements annually or more frequently, by the quarter, to notice its error only seven years later. As a universal bank with worldwide operations, PNB cannot afford to commit such costly mistakes. Moreover, as between parties where negligence is imputable to one and not to the other, the former must perforce bear the consequences of its neglect. Hence, petitioner should bear the cost of its own negligence.

WHEREFORE, the decision of the Court of Appeals dismissing petitioner's claim against private respondent is AFFIRMED.

Costs against petitioner.

SO ORDERED.

Bidin, Davide, Jr. and Melo, JJ., concur.

Gutierrez, Jr., J., concurs in the result.

# Footnotes

1 Records, p. 122.

2 Salao v. Salao, G.R. No. L-26699, March 16, 1976, 70 SCRA 65.

3 Rollo, p. 41.

4 Rollo, p. 27.

5 Article 1144. The following actions must be brought within ten years from the time the right of action accrues:

xxx xxx xxx

(2) Upon an obligation created by law;

xxx xxx xxx

6 Article 1441, Civil Code.

7 89 CJS 724.

8 89 CJS 722.

9 89 CJS 725.

10 Aquino, Civil Code, Vol. II. pp. 556-557; Ramos v. Ramos, G.R. No. L-19872, December 3, 1974, 61 SCRA 284.

11 Salao v. Salao, G.R. No. L-26699, March 16, 1976, 70 SCRA 65.

12 Ramos v. Ramos, G.R. No. L-19872 December 3, 1974, 61 SCRA 284, citing Gayondato v. Treasurer of the Philippine Islands, 49 Phil. 244.

13 State ex Wirt v. Superior Court for Spokane Country, 10 Wash. 2d, 362, 116 P. 2d 752, 755, Article 1440 Civil Code.

14 Diaz v. Goricho, 103 Phil. 261.

15 Report of the Code Commission, p. 60.

16 Article 2143, Civil Code.

17 Report of the Code Commission, pp. 159-160.

18 Article 2163, Civil Code.

19 Lao Chit v. Security and Trust Co. and Consolidated Investment, Inc., 105 Phil. 490.

20 Report of the Code Commission, p. 26.

21 Scott on Trusts, Volume 3, p. 2315.

22 Ibid, p. 2312.

23 Scott on Trusts, Volume 3, p. 2316.

24 Government v. Abadilla, 46 Phil. 642 and Miguel et al v. Court of Appeals,
L-20274, October 30, 1969, 29 SCRA 760.

25 Translated as, "No one should be allowed to enrich himself unjustly at the expense of another." (Jenk Cent. Cas. 4; 10 Barb. [N.Y.] 626, 633, "Cyclopedic Law Dictionary," 2nd Edition, p. 688).

26 Rollo, p. 32.

27 Tolentino, Civil Code of the Philippines, Vol. IV, p. 685.

28 Villagonzalo v. IAC, G.R. No. 711110, November 22, 1988, 167 SCRA 535; Perez v. Ong Chua, No. L-36850, September 23, 1982, 116 SCRA 732, 90 CJS 887-889 and 54 Am Jur., pp. 449-450.

29 Mapa III v. Guanzon, G.R. No. L-25605, June 20, 1977, 77 SCRA 387.

antos v Bedia Santos

2009-12-07T18:31:00.001-08:00

Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 113054 March 16, 1995

LEOUEL SANTOS, SR., petitioner-appellant,
vs.
COURT OF APPEALS, and SPOUSES LEOPOLDO and OFELIA BEDIA, respondents-appellees.

ROMERO, J.:

In this petition for review, we are asked to overturn the decision of the Court of Appeals¹ granting custody of six-year old Leouel Santos, Jr. to his maternal grandparents and not to his father, Santos, Sr. What is sought is a decision which should definitively settle the matter of the care, custody and control of the boy.

Happily, unlike King Solomon, we need not merely rely on a "wise and understanding heart," for there is man's law to guide us and that is, the Family Code.

The antecedent facts giving rise to the case at bench are as follows:

Petitioner Leouel Santos, Sr., an army lieutenant, and Julia Bedia a nurse by profession, were married in Iloilo City in 1986. Their union beget only one child, Leouel Santos, Jr. who was born July 18, 1987.

From the time the boy was released from the hospital until sometime thereafter, he had been in the care and custody of his maternal grandparents, private respondents herein, Leopoldo and Ofelia Bedia.

Petitioner and wife Julia agreed to place Leouel Jr. in the temporary custody of the latter's parents, the respondent spouses Bedia. The latter alleged that they paid for all the hospital bills, as well as the subsequent support of the boy because petitioner could not afford to do so.

The boy's mother, Julia Bedia-Santos, left for the United States in May 1988 to work. Petitioner alleged that he is not aware of her whereabouts and his efforts to locate her in the United States proved futile. Private respondents claim that although abroad, their daughter Julia had been sending financial support to them for her son.

On September 2, 1990, petitioner along with his two brothers, visited the Bedia household, where three-year old Leouel Jr. was staying. Private respondents contend that through deceit and false pretensions, petitioner abducted the boy and clandestinely spirited him away to his hometown in Bacong, Negros Oriental.

The spouses Bedia then filed a "Petition for Care, Custody and Control of Minor Ward Leouel Santos Jr.," before the Regional Trial Court of Iloilo City, with Santos, Sr. as respondent.²

After an ex-parte hearing on October 8, 1990, the trial court issued an order on the same day awarding custody of the child Leouel Santos, Jr. to his grandparents, Leopoldo and Ofelia Bedia.³

Petitioner appealed this Order to the Court of Appeals.⁴ In its decision dated April 30, 1992, respondent appellate court affirmed the trial court's
order. ⁵ His motion for reconsideration having been denied,⁶ petitioner now brings the instant petition for review for a reversal of the appellate court's decision.

The Court of Appeals erred, according to petitioner, in awarding custody of the boy to his grandparents and not to himself. He contends that since private respondents have failed to show that petitioner is an unfit and unsuitable father, substitute parental authority granted to the boy's grandparents under Art. 214 of the Family Code is inappropriate.

Petitioner adds that the reasons relied upon by the private respondents in having custody over the boy, are flimsy and insufficient to deprive him of his natural and legal right to have custody.

On the other hand, private respondents aver that they can provide an air-conditioned room for the boy and that petitioner would not be in a position to take care of his son since he has to be assigned to different places. They also allege that the petitioner did not give a single centavo for the boy's support and maintenance. When the boy was about to be released from the hospital, they were the ones who paid the fees because their daughter and petitioner had no money. Besides, Julia Bedia Santos, their daughter, had entrusted the boy to them before she left for the United States. Furthermore, petitioner's use of trickery and deceit in abducting the child in 1990, after being hospitably treated by private respondents, does not speak well of his fitness and suitability as a parent.

The Bedias argue that although the law recognizes the right of a parent to his child's custody, ultimately the primary consideration is what is best for the happiness and welfare of the latter. As maternal grandparents who have amply demonstrated their love and affection for the boy since his infancy, they claim to be in the best position to promote the child's welfare.

The issue to be resolved here boils down to who should properly be awarded custody of the minor Leouel Santos, Jr.

The right of custody accorded to parents springs from the exercise of parental authority. Parental authority orpatria potestas in Roman Law is the juridical institution whereby parents rightfully assume control and protection of their unemancipated children to the extent required by the latter' s needs.⁷ It is a mass of rights and obligations which the law grants to parents for the purpose of the children's physical preservation and development, as well as the cultivation of their intellect and the education of their heart and senses.⁸ As regards parental authority, "there is no power, but a task; no complex of rights, but a sum of duties; no sovereignty but a sacred trust for the welfare of the minor."⁹

Parental authority and responsibility are inalienable and may not be transferred or renounced except in cases authorized by law. ¹⁰ The right attached to parental authority, being purely personal, the law allows a waiver of parental authority only in cases of adoption, guardianship and surrender to a children's home or an orphan institution. ¹¹ When a parent entrusts the custody of a minor to another, such as a friend or godfather, even in a document, what is given is merely temporary custody and it does not constitute a renunciation of parental authority. ¹² Even if a definite renunciation is manifest, the law still disallows the same. ¹³

The father and mother, being the natural guardians of unemancipated children, are duty-bound and entitled to keep them in their custody and
company. ¹⁴ The child's welfare is always the paramount consideration in all questions concerning his care and custody. ¹⁵

The law vests on the father and mother joint parental authority over the persons of their common children. ¹⁶ In case of absence or death of either parent, the parent present shall continue exercising parental authority. ¹⁷ Only in case of the parents' death, absence or unsuitability may substitute parental authority be exercised by the surviving grandparent. ¹⁸ The situation obtaining in the case at bench is one where the mother of the minor Santos, Jr., is working in the United States while the father, petitioner Santos, Sr., is present. Not only are they physically apart but are also emotionally separated. There has been no decree of legal separation and petitioner's attempt to obtain an annulment of the marriage on the ground of psychological incapacity of his wife has failed. ¹⁹

Petitioner assails the decisions of both the trial court and the appellate court to award custody of his minor son to his parents-in-law, the Bedia spouses on the ground that under Art. 214 of the Family Code, substitute parental authority of the grandparents is proper only when both parents are dead, absent or unsuitable. Petitioner's unfitness, according to him, has not been successfully shown by private respondents.

The Court of Appeals held that although there is no evidence to show that petitioner (Santos Sr.) is "depraved, a habitual drunkard or poor, he may nevertheless be considered, as he is in fact so considered, to be unsuitable to be allowed to have custody of minor Leouel Santos Jr." ²⁰

The respondent appellate court, in affirming the trial court's order of October 8, 1990, adopted as its own the latter's observations, to wit:

From the evidence adduced, this Court is of the opinion that it is to be (sic) best interest of the minor Leouel Santos, Jr. that he be placed under the care, custody, and control of his maternal grandparents the petitioners herein. The petitioners have amply demonstrated their love and devotion to their grandson while the natural father, respondent herein, has shown little interest in his welfare as reflected by his conduct in the past. Moreover the fact that petitioners are well-off financially, should be carefully considered in awarding to them the custody of the minor herein, lest the breaking of such ties with his maternal grandparents might deprive the boy of an eventual college education and other material advantages (Consaul vs. Consaul, 63 N.Y.S. 688). Respondent had never given any previous financial support to his son, while, upon the other hand, the latter receives so much bounty from his maternal grandparents and his mother as well, who is now gainfully employed in the United States. Moreover, the fact that respondent, as a military personnel who has to shuttle from one assignment to another, and, in these troubled times, may have pressing and compelling military duties which may prevent him from attending to his son at times when the latter needs him most, militates strongly against said respondent. Additionally, the child is sickly and asthmatic and needs the loving and tender care of those who can provide for it. ²¹

We find the aforementioned considerations insufficient to defeat petitioner's parental authority and the concomitant right to have custody over the minor Leouel Santos, Jr., particularly since he has not been shown to be an unsuitable and unfit parent. Private respondents' demonstrated love and affection for the boy, notwithstanding, the legitimate father is still preferred over the grandparents. ²² The latter's wealth is not a deciding factor, particularly because there is no proof that at the present time, petitioner is in no position to support the boy. The fact that he was unable to provide financial support for his minor son from birth up to over three years when he took the boy from his in-laws without permission, should not be sufficient reason to strip him of his permanent right to the child's custody. While petitioner's previous inattention is inexcusable and merits only the severest criticism, it cannot be construed as abandonment. His appeal of the unfavorable decision against him and his efforts to keep his only child in his custody may be regarded as serious efforts to rectify his past misdeeds. To award him custody would help enhance the bond between parent and son. It would also give the father a chance to prove his love for his son and for the son to experience the warmth and support which a father can give.

His being a soldier is likewise no bar to allowing him custody over the boy. So many men in uniform who are assigned to different parts of the country in the service of the nation, are still the natural guardians of their children. It is not just to deprive our soldiers of authority, care and custody over their children merely because of the normal consequences of their duties and assignments, such as temporary separation from their families.

Petitioner's employment of trickery in spiriting away his boy from his in-laws, though unjustifiable, is likewise not a ground to wrest custody from him.

Private respondents' attachment to the young boy whom they have reared for the past three years is understandable. Still and all, the law considers the natural love of a parent to outweigh that of the grandparents, such that only when the parent present is shown to be unfit or unsuitable may the grandparents exercise substitute parental authority, a fact which has not been proven here.

The strong bonds of love and affection possessed by private respondents as grandparents should not be seen as incompatible with petitioner' right to custody over the child as a father. Moreover, who is to say whether the petitioner's financial standing may improve in the future?

WHEREFORE, the petition is GRANTED. The decision of the respondent Court of Appeals dated April 30, 1992 as well as its Resolution dated November 13, 1992 are hereby REVERSED and SET ASIDE. Custody over the minor Leouel Santos Jr. is awarded to his legitimate father, herein petitioner Leouel Santos, Sr.

SO ORDERED.

Feliciano, Melo, Vitug and Francisco, JJ., concur.

Footnotes

1 CA-GR CV No. 30563, "In the matter of petition for care, custody and control of minor Leouel Santos, Jr., spouses Leopoldo and Ofelia Bedia, petitioners-appellees, v. Leouel Santos, Sr., respondent-appellant," Rollo, p. 21.

2 Spec. Proc. No. 4588, Regional Trial Court, Iloilo City, Branch 29, Judge Ricardo P. Galvez, presiding.

3 Rollo, p. 50.

4 Docketed as CA-GR CV No. 30563.

5 Penned by Justice Serafin V.C. Guingona , with Justices Vicente V. Mendoza and Jaime M. Lantin, concurring; Rollo, p. 21.

6 Resolution dated November 16, 1993, Rollo, p. 34.

7 Puig Peña, cited in I J. REYES AND R. PUNO, AN OUTLINE OF THE PHILIPPINE CIVIL LAW, 295 (4th ed., 1964).

8 Reyes v. Alvarez, 8 Phil. 732; 2 Manresa 2l; cited in I A. TOLENTINO, CIVIL CODE OF THE PHILS., COMMENTARIES AND JURISPRUDENCE 604 (1990 ed.).

9 Puig Peña cited in Reyes and Puno, supra at note 7.

10 Family Code, Arts. 210, 223 and 224.

11 Family Code, Arts. 222-224; Act No. 3094.

12 Cells v. Cafuir, 86 Phil. 555; De La Cruz v. Lim Chai Lay (CA) GR 14080-R, August 15, 1955; Bacayo v. Calum, (CA) O.G.8607.

13 Family Code, Art. 210, taken from Art. 313 of the Civil Code.

14 Family Code , Art. 209 and 211; Aldecoa v. Hongkong and Shanghai Bank, 30 Phil. 228 cited in A. Tolentino, supra at p. 618.

15 Art. 8, Pres. Decree No. 603, Child and Youth Welfare Code; Cervantes v. Fajardo, G.R. No. 79955, January 27, 1989, 169 SCRA 575; Unson v. Navarro, L-52242, November 17, 1980, 101 SCRA 182.

16 Family Code, Art. 211.

17 Family Code, Art. 212.

18 Family Code, Art. 214.

19 On January 4, 1995, the Court en banc, denied Leouel Santos, Sr.'s petition for review where he sought to have his marriage to Julia Bedia-Santos annulled on the ground of psychological incapacity. Leouel Santos v. Hon. Court of Appeals and Julia Rosario Bedia-Santos, G.R. No. 112019.

20 Rollo, p. 29.

21 Rollo, pp. 31-32.

22 Bacayo v. Calum, (CA) 53 O.G.8607.

Caltex v palomar

2009-12-07T16:29:00.000-08:00

This is a case that shows what it means to be a lottery

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-19650 September 29, 1966

CALTEX (PHILIPPINES), INC., petitioner-appellee,
vs.
ENRICO PALOMAR, in his capacity as THE POSTMASTER GENERAL, respondent-appellant.

Office of the Solicitor General for respondent and appellant.
Ross, Selph and Carrascoso for petitioner and appellee.

CASTRO, J.:

In the year 1960 the Caltex (Philippines) Inc. (hereinafter referred to as Caltex) conceived and laid the groundwork for a promotional scheme calculated to drum up patronage for its oil products. Denominated "Caltex Hooded Pump Contest", it calls for participants therein to estimate the actual number of liters a hooded gas pump at each Caltex station will dispense during a specified period. Employees of the Caltex (Philippines) Inc., its dealers and its advertising agency, and their immediate families excepted, participation is to be open indiscriminately to all "motor vehicle owners and/or licensed drivers". For the privilege to participate, no fee or consideration is required to be paid, no purchase of Caltex products required to be made. Entry forms are to be made available upon request at each Caltex station where a sealed can will be provided for the deposit of accomplished entry stubs.

A three-staged winner selection system is envisioned. At the station level, called "Dealer Contest", the contestant whose estimate is closest to the actual number of liters dispensed by the hooded pump thereat is to be awarded the first prize; the next closest, the second; and the next, the third. Prizes at this level consist of a 3-burner kerosene stove for first; a thermos bottle and a Ray-O-Vac hunter lantern for second; and an Everready Magnet-lite flashlight with batteries and a screwdriver set for third. The first-prize winner in each station will then be qualified to join in the "Regional Contest" in seven different regions. The winning stubs of the qualified contestants in each region will be deposited in a sealed can from which the first-prize, second-prize and third-prize winners of that region will be drawn. The regional first-prize winners will be entitled to make a three-day all-expenses-paid round trip to Manila, accompanied by their respective Caltex dealers, in order to take part in the "National Contest". The regional second-prize and third-prize winners will receive cash prizes of P500 and P300, respectively. At the national level, the stubs of the seven regional first-prize winners will be placed inside a sealed can from which the drawing for the final first-prize, second-prize and third-prize winners will be made. Cash prizes in store for winners at this final stage are: P3,000 for first; P2,000 for second; Pl,500 for third; and P650 as consolation prize for each of the remaining four participants.

Foreseeing the extensive use of the mails not only as amongst the media for publicizing the contest but also for the transmission of communications relative thereto, representations were made by Caltex with the postal authorities for the contest to be cleared in advance for mailing, having in view sections 1954(a), 1982 and 1983 of the Revised Administrative Code, the pertinent provisions of which read as follows:

SECTION 1954. Absolutely non-mailable matter. — No matter belonging to any of the following classes, whether sealed as first-class matter or not, shall be imported into the Philippines through the mails, or to be deposited in or carried by the mails of the Philippines, or be delivered to its addressee by any officer or employee of the Bureau of Posts:

Written or printed matter in any form advertising, describing, or in any manner pertaining to, or conveying or purporting to convey any information concerning any lottery, gift enterprise, or similar scheme depending in whole or in part upon lot or chance, or any scheme, device, or enterprise for obtaining any money or property of any kind by means of false or fraudulent pretenses, representations, or promises.

"SECTION 1982. Fraud orders.—Upon satisfactory evidence that any person or company is engaged in conducting any lottery, gift enterprise, or scheme for the distribution of money, or of any real or personal property by lot, chance, or drawing of any kind, or that any person or company is conducting any scheme, device, or enterprise for obtaining money or property of any kind through the mails by means of false or fraudulent pretenses, representations, or promises, the Director of Posts may instruct any postmaster or other officer or employee of the Bureau to return to the person, depositing the same in the mails, with the word "fraudulent" plainly written or stamped upon the outside cover thereof, any mail matter of whatever class mailed by or addressed to such person or company or the representative or agent of such person or company.

SECTION 1983. Deprivation of use of money order system and telegraphic transfer service.—The Director of Posts may, upon evidence satisfactory to him that any person or company is engaged in conducting any lottery, gift enterprise or scheme for the distribution of money, or of any real or personal property by lot, chance, or drawing of any kind, or that any person or company is conducting any scheme, device, or enterprise for obtaining money or property of any kind through the mails by means of false or fraudulent pretenses, representations, or promise, forbid the issue or payment by any postmaster of any postal money order or telegraphic transfer to said person or company or to the agent of any such person or company, whether such agent is acting as an individual or as a firm, bank, corporation, or association of any kind, and may provide by regulation for the return to the remitters of the sums named in money orders or telegraphic transfers drawn in favor of such person or company or its agent.

The overtures were later formalized in a letter to the Postmaster General, dated October 31, 1960, in which the Caltex, thru counsel, enclosed a copy of the contest rules and endeavored to justify its position that the contest does not violate the anti-lottery provisions of the Postal Law. Unimpressed, the then Acting Postmaster General opined that the scheme falls within the purview of the provisions aforesaid and declined to grant the requested clearance. In its counsel's letter of December 7, 1960, Caltex sought a reconsideration of the foregoing stand, stressing that there being involved no consideration in the part of any contestant, the contest was not, under controlling authorities, condemnable as a lottery. Relying, however, on an opinion rendered by the Secretary of Justice on an unrelated case seven years before (Opinion 217, Series of 1953), the Postmaster General maintained his view that the contest involves consideration, or that, if it does not, it is nevertheless a "gift enterprise" which is equally banned by the Postal Law, and in his letter of December 10, 1960 not only denied the use of the mails for purposes of the proposed contest but as well threatened that if the contest was conducted, "a fraud order will have to be issued against it (Caltex) and all its representatives".

Caltex thereupon invoked judicial intervention by filing the present petition for declaratory relief against Postmaster General Enrico Palomar, praying "that judgment be rendered declaring its 'Caltex Hooded Pump Contest' not to be violative of the Postal Law, and ordering respondent to allow petitioner the use of the mails to bring the contest to the attention of the public". After issues were joined and upon the respective memoranda of the parties, the trial court rendered judgment as follows:

In view of the foregoing considerations, the Court holds that the proposed 'Caltex Hooded Pump Contest' announced to be conducted by the petitioner under the rules marked as Annex B of the petitioner does not violate the Postal Law and the respondent has no right to bar the public distribution of said rules by the mails.

The respondent appealed.

The parties are now before us, arrayed against each other upon two basic issues: first, whether the petition states a sufficient cause of action for declaratory relief; andsecond, whether the proposed "Caltex Hooded Pump Contest" violates the Postal Law. We shall take these up in seriatim.

1. By express mandate of section 1 of Rule 66 of the old Rules of Court, which was the applicable legal basis for the remedy at the time it was invoked, declaratory relief is available to any person "whose rights are affected by a statute . . . to determine any question of construction or validity arising under the . . . statute and for a declaration of his rights thereunder" (now section 1, Rule 64, Revised Rules of Court). In amplification, this Court, conformably to established jurisprudence on the matter, laid down certain conditions sine qua non therefor, to wit: (1) there must be a justiciable controversy; (2) the controversy must be between persons whose interests are adverse; (3) the party seeking declaratory relief must have a legal interest in the controversy; and (4) the issue involved must be ripe for judicial determination (Tolentino vs. The Board of Accountancy, et al., G.R. No. L-3062, September 28, 1951; Delumen, et al. vs. Republic of the Philippines, 50 O.G., No. 2, pp. 576, 578-579; Edades vs. Edades, et al., G.R. No. L-8964, July 31, 1956). The gravamen of the appellant's stand being that the petition herein states no sufficient cause of action for declaratory relief, our duty is to assay the factual bases thereof upon the foregoing crucible.

As we look in retrospect at the incidents that generated the present controversy, a number of significant points stand out in bold relief. The appellee (Caltex), as a business enterprise of some consequence, concededly has the unquestioned right to exploit every legitimate means, and to avail of all appropriate media to advertise and stimulate increased patronage for its products. In contrast, the appellant, as the authority charged with the enforcement of the Postal Law, admittedly has the power and the duty to suppress transgressions thereof — particularly thru the issuance of fraud orders, under Sections 1982 and 1983 of the Revised Administrative Code, against legally non-mailable schemes. Obviously pursuing its right aforesaid, the appellee laid out plans for the sales promotion scheme hereinbefore detailed. To forestall possible difficulties in the dissemination of information thereon thru the mails, amongst other media, it was found expedient to request the appellant for an advance clearance therefor. However, likewise by virtue of his jurisdiction in the premises and construing the pertinent provisions of the Postal Law, the appellant saw a violation thereof in the proposed scheme and accordingly declined the request. A point of difference as to the correct construction to be given to the applicable statute was thus reached. Communications in which the parties expounded on their respective theories were exchanged. The confidence with which the appellee insisted upon its position was matched only by the obstinacy with which the appellant stood his ground. And this impasse was climaxed by the appellant's open warning to the appellee that if the proposed contest was "conducted, a fraud order will have to be issued against it and all its representatives."

Against this backdrop, the stage was indeed set for the remedy prayed for. The appellee's insistent assertion of its claim to the use of the mails for its proposed contest, and the challenge thereto and consequent denial by the appellant of the privilege demanded, undoubtedly spawned a live controversy. The justiciability of the dispute cannot be gainsaid. There is an active antagonistic assertion of a legal right on one side and a denial thereof on the other, concerning a real — not a mere theoretical — question or issue. The contenders are as real as their interests are substantial. To the appellee, the uncertainty occasioned by the divergence of views on the issue of construction hampers or disturbs its freedom to enhance its business. To the appellant, the suppression of the appellee's proposed contest believed to transgress a law he has sworn to uphold and enforce is an unavoidable duty. With the appellee's bent to hold the contest and the appellant's threat to issue a fraud order therefor if carried out, the contenders are confronted by the ominous shadow of an imminent and inevitable litigation unless their differences are settled and stabilized by a tranquilizing declaration (Pablo y Sen, et al. vs. Republic of the Philippines, G.R. No. L-6868, April 30, 1955). And, contrary to the insinuation of the appellant, the time is long past when it can rightly be said that merely the appellee's "desires are thwarted by its own doubts, or by the fears of others" — which admittedly does not confer a cause of action. Doubt, if any there was, has ripened into a justiciable controversy when, as in the case at bar, it was translated into a positive claim of right which is actually contested (III Moran, Comments on the Rules of Court, 1963 ed., pp. 132-133, citing: Woodward vs. Fox West Coast Theaters, 36 Ariz., 251, 284 Pac. 350).

We cannot hospitably entertain the appellant's pretense that there is here no question of construction because the said appellant "simply applied the clear provisions of the law to a given set of facts as embodied in the rules of the contest", hence, there is no room for declaratory relief. The infirmity of this pose lies in the fact that it proceeds from the assumption that, if the circumstances here presented, the construction of the legal provisions can be divorced from the matter of their application to the appellee's contest. This is not feasible. Construction, verily, is the art or process of discovering and expounding the meaning and intention of the authors of the law with respect to its application to a given case, where that intention is rendered doubtful, amongst others, by reason of the fact that the given case is not explicitly provided for in the law (Black, Interpretation of Laws, p. 1). This is precisely the case here. Whether or not the scheme proposed by the appellee is within the coverage of the prohibitive provisions of the Postal Law inescapably requires an inquiry into the intended meaning of the words used therein. To our mind, this is as much a question of construction or interpretation as any other.

Nor is it accurate to say, as the appellant intimates, that a pronouncement on the matter at hand can amount to nothing more than an advisory opinion the handing down of which is anathema to a declaratory relief action. Of course, no breach of the Postal Law has as yet been committed. Yet, the disagreement over the construction thereof is no longer nebulous or contingent. It has taken a fixed and final shape, presenting clearly defined legal issues susceptible of immediate resolution. With the battle lines drawn, in a manner of speaking, the propriety — nay, the necessity — of setting the dispute at rest before it accumulates the asperity distemper, animosity, passion and violence of a full-blown battle which looms ahead (III Moran, Comments on the Rules of Court, 1963 ed., p. 132 and cases cited), cannot but be conceded. Paraphrasing the language in Zeitlin vs. Arnebergh 59 Cal., 2d., 901, 31 Cal. Rptr., 800, 383 P. 2d., 152, cited in 22 Am. Jur., 2d., p. 869, to deny declaratory relief to the appellee in the situation into which it has been cast, would be to force it to choose between undesirable alternatives. If it cannot obtain a final and definitive pronouncement as to whether the anti-lottery provisions of the Postal Law apply to its proposed contest, it would be faced with these choices: If it launches the contest and uses the mails for purposes thereof, it not only incurs the risk, but is also actually threatened with the certain imposition, of a fraud order with its concomitant stigma which may attach even if the appellee will eventually be vindicated; if it abandons the contest, it becomes a self-appointed censor, or permits the appellant to put into effect a virtual fiat of previous censorship which is constitutionally unwarranted. As we weigh these considerations in one equation and in the spirit of liberality with which the Rules of Court are to be interpreted in order to promote their object (section 1, Rule 1, Revised Rules of Court) — which, in the instant case, is to settle, and afford relief from uncertainty and insecurity with respect to, rights and duties under a law — we can see in the present case any imposition upon our jurisdiction or any futility or prematurity in our intervention.

The appellant, we apprehend, underrates the force and binding effect of the ruling we hand down in this case if he believes that it will not have the final and pacifying function that a declaratory judgment is calculated to subserve. At the very least, the appellant will be bound. But more than this, he obviously overlooks that in this jurisdiction, "Judicial decisions applying or interpreting the law shall form a part of the legal system" (Article 8, Civil Code of the Philippines). In effect, judicial decisions assume the same authority as the statute itself and, until authoritatively abandoned, necessarily become, to the extent that they are applicable, the criteria which must control the actuations not only of those called upon to abide thereby but also of those in duty bound to enforce obedience thereto. Accordingly, we entertain no misgivings that our resolution of this case will terminate the controversy at hand.

It is not amiss to point out at this juncture that the conclusion we have herein just reached is not without precedent. In Liberty Calendar Co. vs. Cohen, 19 N.J., 399, 117 A. 2d., 487, where a corporation engaged in promotional advertising was advised by the county prosecutor that its proposed sales promotion plan had the characteristics of a lottery, and that if such sales promotion were conducted, the corporation would be subject to criminal prosecution, it was held that the corporation was entitled to maintain a declaratory relief action against the county prosecutor to determine the legality of its sales promotion plan. In pari materia, see also: Bunis vs. Conway, 17 App. Div. 2d., 207, 234 N.Y.S. 2d., 435; Zeitlin vs. Arnebergh, supra; Thrillo, Inc. vs. Scott, 15 N.J. Super. 124, 82 A. 2d., 903.

In fine, we hold that the appellee has made out a case for declaratory relief.

2. The Postal Law, chapter 52 of the Revised Administrative Code, using almost identical terminology in sections 1954(a), 1982 and 1983 thereof, supra, condemns as absolutely non-mailable, and empowers the Postmaster General to issue fraud orders against, or otherwise deny the use of the facilities of the postal service to, any information concerning "any lottery, gift enterprise, or scheme for the distribution of money, or of any real or personal property by lot, chance, or drawing of any kind". Upon these words hinges the resolution of the second issue posed in this appeal.

Happily, this is not an altogether untrodden judicial path. As early as in 1922, in "El Debate", Inc. vs. Topacio, 44 Phil., 278, 283-284, which significantly dwelt on the power of the postal authorities under the abovementioned provisions of the Postal Law, this Court declared that —

While countless definitions of lottery have been attempted, the authoritative one for this jurisdiction is that of the United States Supreme Court, in analogous cases having to do with the power of the United States Postmaster General, viz.: The term "lottery" extends to all schemes for the distribution of prizes by chance, such as policy playing, gift exhibitions, prize concerts, raffles at fairs, etc., and various forms of gambling. The three essential elements of a lottery are: First, consideration; second, prize; and third, chance. (Horner vs. States [1892], 147 U.S. 449; Public Clearing House vs. Coyne [1903], 194 U.S., 497; U.S. vs. Filart and Singson [1915], 30 Phil., 80; U.S. vs. Olsen and Marker [1917], 36 Phil., 395; U.S. vs. Baguio [1919], 39 Phil., 962; Valhalla Hotel Construction Company vs. Carmona, p. 233, ante.)

Unanimity there is in all quarters, and we agree, that the elements of prize and chance are too obvious in the disputed scheme to be the subject of contention. Consequently as the appellant himself concedes, the field of inquiry is narrowed down to the existence of the element of consideration therein. Respecting this matter, our task is considerably lightened inasmuch as in the same case just cited, this Court has laid down a definitive yard-stick in the following terms —

In respect to the last element of consideration, the law does not condemn the gratuitous distribution of property by chance, if no consideration is derived directly or indirectly from the party receiving the chance, but does condemn as criminal schemes in which a valuable consideration of some kind is paid directly or indirectly for the chance to draw a prize.

Reverting to the rules of the proposed contest, we are struck by the clarity of the language in which the invitation to participate therein is couched. Thus —

No puzzles, no rhymes? You don't need wrappers, labels or boxtops? You don't have to buy anything? Simply estimate the actual number of liter the Caltex gas pump with the hood at your favorite Caltex dealer will dispense from — to —, and win valuable prizes . . . ." .

Nowhere in the said rules is any requirement that any fee be paid, any merchandise be bought, any service be rendered, or any value whatsoever be given for the privilege to participate. A prospective contestant has but to go to a Caltex station, request for the entry form which is available on demand, and accomplish and submit the same for the drawing of the winner. Viewed from all angles or turned inside out, the contest fails to exhibit any discernible consideration which would brand it as a lottery. Indeed, even as we head the stern injunction, "look beyond the fair exterior, to the substance, in order to unmask the real element and pernicious tendencies which the law is seeking to prevent" ("El Debate", Inc. vs. Topacio, supra, p. 291), we find none. In our appraisal, the scheme does not only appear to be, but actually is, a gratuitous distribution of property by chance.

There is no point to the appellant's insistence that non-Caltex customers who may buy Caltex products simply to win a prize would actually be indirectly paying a consideration for the privilege to join the contest. Perhaps this would be tenable if the purchase of any Caltex product or the use of any Caltex service were a pre-requisite to participation. But it is not. A contestant, it hardly needs reiterating, does not have to buy anything or to give anything of value.1awphîl.nèt

Off-tangent, too, is the suggestion that the scheme, being admittedly for sales promotion, would naturally benefit the sponsor in the way of increased patronage by those who will be encouraged to prefer Caltex products "if only to get the chance to draw a prize by securing entry blanks". The required element of consideration does not consist of the benefit derived by the proponent of the contest. The true test, as laid down in People vs. Cardas, 28 P. 2d., 99, 137 Cal. App. (Supp.) 788, is whether the participant pays a valuable consideration for the chance, and not whether those conducting the enterprise receive something of value in return for the distribution of the prize. Perspective properly oriented, the standpoint of the contestant is all that matters, not that of the sponsor. The following, culled from Corpus Juris Secundum, should set the matter at rest:

The fact that the holder of the drawing expects thereby to receive, or in fact does receive, some benefit in the way of patronage or otherwise, as a result of the drawing; does not supply the element of consideration. Griffith Amusement Co. vs. Morgan, Tex. Civ. App., 98 S.W., 2d., 844" (54 C.J.S., p. 849).

Thus enlightened, we join the trial court in declaring that the "Caltex Hooded Pump Contest" proposed by the appellee is not a lottery that may be administratively and adversely dealt with under the Postal Law.

But it may be asked: Is it not at least a "gift enterprise, or scheme for the distribution of money, or of any real or personal property by lot, chance, or drawing of any kind", which is equally prescribed? Incidentally, while the appellant's brief appears to have concentrated on the issue of consideration, this aspect of the case cannot be avoided if the remedy here invoked is to achieve its tranquilizing effect as an instrument of both curative and preventive justice. Recalling that the appellant's action was predicated, amongst other bases, upon Opinion 217, Series 1953, of the Secretary of Justice, which opined in effect that a scheme, though not a lottery for want of consideration, may nevertheless be a gift enterprise in which that element is not essential, the determination of whether or not the proposed contest — wanting in consideration as we have found it to be — is a prohibited gift enterprise, cannot be passed over sub silencio.

While an all-embracing concept of the term "gift enterprise" is yet to be spelled out in explicit words, there appears to be a consensus among lexicographers and standard authorities that the term is commonly applied to a sporting artifice of under which goods are sold for their market value but by way of inducement each purchaser is given a chance to win a prize (54 C.J.S., 850; 34 Am. Jur., 654; Black, Law Dictionary, 4th ed., p. 817; Ballantine, Law Dictionary with Pronunciations, 2nd ed., p. 55; Retail Section of Chamber of Commerce of Plattsmouth vs. Kieck, 257 N.W., 493, 128 Neb. 13; Barker vs. State, 193 S.E., 605, 56 Ga. App., 705; Bell vs. State, 37 Tenn. 507, 509, 5 Sneed, 507, 509). As thus conceived, the term clearly cannot embrace the scheme at bar. As already noted, there is no sale of anything to which the chance offered is attached as an inducement to the purchaser. The contest is open to all qualified contestants irrespective of whether or not they buy the appellee's products.

Going a step farther, however, and assuming that the appellee's contest can be encompassed within the broadest sweep that the term "gift enterprise" is capable of being extended, we think that the appellant's pose will gain no added comfort. As stated in the opinion relied upon, rulings there are indeed holding that a gift enterprise involving an award by chance, even in default of the element of consideration necessary to constitute a lottery, is prohibited (E.g.: Crimes vs. States, 235 Ala 192, 178 So. 73; Russell vs. Equitable Loan & Sec. Co., 129 Ga. 154, 58 S.E., 88; State ex rel. Stafford vs. Fox-Great Falls Theater Corporation, 132 P. 2d., 689, 694, 698, 114 Mont. 52). But this is only one side of the coin. Equally impressive authorities declare that, like a lottery, a gift enterprise comes within the prohibitive statutes only if it exhibits the tripartite elements of prize, chance and consideration (E.g.: Bills vs. People, 157 P. 2d., 139, 142, 113 Colo., 326; D'Orio vs. Jacobs, 275 P. 563, 565, 151 Wash., 297; People vs. Psallis, 12 N.Y.S., 2d., 796; City and County of Denver vs. Frueauff, 88 P., 389, 394, 39 Colo., 20, 7 L.R.A., N.S., 1131, 12 Ann. Cas., 521; 54 C.J.S., 851, citing: Barker vs. State, 193 S.E., 605, 607, 56 Ga. App., 705; 18 Words and Phrases, perm. ed., pp. 590-594). The apparent conflict of opinions is explained by the fact that the specific statutory provisions relied upon are not identical. In some cases, as pointed out in 54 C.J.S., 851, the terms "lottery" and "gift enterprise" are used interchangeably (Bills vs. People, supra); in others, the necessity for the element of consideration or chance has been specifically eliminated by statute. (54 C.J.S., 351-352, citing Barker vs. State, supra; State ex rel. Stafford vs. Fox-Great Falls Theater Corporation, supra). The lesson that we derive from this state of the pertinent jurisprudence is, therefore, that every case must be resolved upon the particular phraseology of the applicable statutory provision.

Taking this cue, we note that in the Postal Law, the term in question is used in association with the word "lottery". With the meaning of lottery settled, and consonant to the well-known principle of legal hermeneutics noscitur a sociis — which Opinion 217 aforesaid also relied upon although only insofar as the element of chance is concerned — it is only logical that the term under a construction should be accorded no other meaning than that which is consistent with the nature of the word associated therewith. Hence, if lottery is prohibited only if it involves a consideration, so also must the term "gift enterprise" be so construed. Significantly, there is not in the law the slightest indicium of any intent to eliminate that element of consideration from the "gift enterprise" therein included.

This conclusion firms up in the light of the mischief sought to be remedied by the law, resort to the determination thereof being an accepted extrinsic aid in statutory construction. Mail fraud orders, it is axiomatic, are designed to prevent the use of the mails as a medium for disseminating printed matters which on grounds of public policy are declared non-mailable. As applied to lotteries, gift enterprises and similar schemes, justification lies in the recognized necessity to suppress their tendency to inflame the gambling spirit and to corrupt public morals (Com. vs. Lund, 15 A. 2d., 839, 143 Pa. Super. 208). Since in gambling it is inherent that something of value be hazarded for a chance to gain a larger amount, it follows ineluctably that where no consideration is paid by the contestant to participate, the reason behind the law can hardly be said to obtain. If, as it has been held —

Gratuitous distribution of property by lot or chance does not constitute "lottery", if it is not resorted to as a device to evade the law and no consideration is derived, directly or indirectly, from the party receiving the chance, gambling spirit not being cultivated or stimulated thereby. City of Roswell vs. Jones, 67 P. 2d., 286, 41 N.M., 258." (25 Words and Phrases, perm. ed., p. 695, emphasis supplied).

we find no obstacle in saying the same respecting a gift enterprise. In the end, we are persuaded to hold that, under the prohibitive provisions of the Postal Law which we have heretofore examined, gift enterprises and similar schemes therein contemplated are condemnable only if, like lotteries, they involve the element of consideration. Finding none in the contest here in question, we rule that the appellee may not be denied the use of the mails for purposes thereof.

Recapitulating, we hold that the petition herein states a sufficient cause of action for declaratory relief, and that the "Caltex Hooded Pump Contest" as described in the rules submitted by the appellee does not transgress the provisions of the Postal Law.

ACCORDINGLY, the judgment appealed from is affirmed. No costs.

Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal, Bengzon, J.P., Zaldivar and Sanchez, JJ., concur.

US v ABad

2009-12-06T18:48:00.001-08:00

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-2535 August 9, 1906
THE UNITED STATES, plaintiff-appellee,
vs.
JUAN ABAD, defendant-appellant.
V. Ilustre, for appellant.
Attorney-General Wilfley, for appellee.
WILLARD, J.:
The defendant was convicted in the Court of First Instance of the Province of Batangas of the violation of section 8 of Act No. 292, the law defining and punishing treason and sedition. He is the author of the Tagalog drama"Tanikalang Guinto" (The Chain of Gold). This drama he produced in a theater at Batangas on the 10th day of May, 1903. The Government claimed and the court below held that the drama was seditious.
The story of the play is as follows: The heroine, Liwanag, is promised in marriage to the hero, K. Ulayaw. Maimbot, who has given consent to this promise of marriage. During the progress of the play he withdraws his consent, forbids K. Ulayaw to come to his house, and by Liwanag to abandon her lover. He takes into his employ Nagtapon, a brother of K. Ulayaw, whom he directs to act as a spy upon the movements of Ulayaw. Another of the characters in the play is Dalita, the mother of K. Ulayaw and Nagtapon. Nagtapon disowns her, and she dies in the first act. The gifts of Maimbot to Liwanag not producing any result, her resorts to harsher measures, binds her to a tree, and places Nagtapon as a watch over her. K. Ulayaw, searching for her, finds her in this condition, and is killed by Nagtapon. The play ends with the translation of Liwanag to the heavens.
This play on its face seems to be an ordinary love story with an unfortunate termination. It is claimed by the Government, however, that it was intended to represent the relations between the Government of the United States and the Philippines, the claim being that Maimbot represents the United States, Nagtapon those Filipinos friendly to the United States, K. Ulayaw the Filipinos who desire independence, Liwanag the Philippines, and Dalita the mother country . It is said that this significance can be given to the play by reason of the meaning of the names of the characters. The word "Liwanag" in Tagalog means "light" or dawn of day" (luz o aurora); "Dalita," punishment, grief;" "K. Ulayaw," "lover" (amante); "Nagtapon," "spendthrift, renegade" (prodigo o renegado); "Maimbot," "ambitious or avaricious" (ambicioso o avaro). It is not apparent, however, how the seditious character of the play can be derived from the names of the characters.
In the play itself there are but few passages which in any way indicate that the play is anything more than it purports to be upon its face. The word "independence" or "independent" occurs five times in the course of the play, but always in connection with the marriage of Liwanag and K. Ulayaw, and with their maintenance of a house separate and apart from the house of her uncle. The word "pueblo" occurs three or four time in play, and there is a scene in which Maimbot and Nagtapon are becoming intoxicated, and which Maimbot and Nagtapon are becoming intoxicated, and in which the former says that they must accustom themselves to this and sleep in the streets.
This is practically all there is in the play which tends to support the theory of the Government, and we think it is every far from doing so. It is possible to give to almost any play a different meaning than that intended by the author. To the writtings of the greatest dramatists have been given meanings of which the author never thought.
That the public who witnessed this performance at the theater in Batangas did not understand the play as meaning what the Government claims it means is apparent from the testimony of some of the Government's own witnesses. Jose Villanueva, one of those witnesses, testified as follows on cross-examination:

Q. Could the audience understand the symbolism used by the author to represent his play?

A. I can not say exactly, but I think that only a few understood the purpose of the play.

Alfredo Cantos, another of the Government's witnesses, testified as follows:

Q. What political effects was produced by the drama among the audience?

A. I heard but few of the spectators comment upon the symbolical references to the relation of the United States with the Philippines.

Q. What was your impression as to the purpose of the drama considering the class of people who attend the performance?

A. Many of them were glad to see it, but I can not tell whether it was because of the eloquent and poetical phrases used or because they were aware of the fact that the play dealt with the relations between the Philippines and the United States.

Simeon Luz, another witness for the Government, and the governor of the province, testified as follows:

Q. Could the public understand the meaning of the drama?

A. The intelligent part of the audience probably understood it, but I do think the masses — that is, the great majority of the spectators — understood the same, unless the character of the play were explained to them.

Q. You, as the highest official of the province — did you have an opportunity to judge of the effect produced by the play upon the audience?

A. I did not, because I did not see the drama myself. All I can say is that apparently it was very much applauded, although I can not tell whether it was applauded because of its dramatic value or because of its real significance. In my opinion, I should say that the drama in question is one of the best plays written in Tagalog.

It was proved at the trial that this drama, prior to its presentation at Batangas, had been presented more than twenty times in different theaters of Manila, La Laguna, and Cavite, the first of these representations commencing in October, 1902. The defendant, the author, testified that after three representations in Manila, he had read in a newspapers that an order had been issued by the public authorities requiring that all plays, before their presentation, should be submitted for examination to the division of information. He thereupon took his play to the office of John F. Green and left if there for examination. It was returned to him the next day, with authority to present it. There was no evidence to contradict this statement, although there is some evidence to show that one day was not a sufficient time for a proper examination of the work. However it may be, it is apparent that the play was not considered seditious by the authorities of Manila.
An examination of the dramas which were considered in the cases of the United States vs. Tolentino,¹ No. 1451, decided March 6, 1906, and of the United States vs. Cruz,² No. 2128, will show that anyone reading these dramas or seeing them presented could not fail to understand their seditious tendencies, something which, according to the witnesses of the Government in this case, a great majority of the spectators of this drama could not see.
The judgment of the court below is reversed and the defendant acquitted, with the costs of both instance de oficio. At the expiration of ten days judgment should be entered in accordance with this decision and the case remanded to the court below for execution of said judgment. So ordered.
Torres, Mapa, Carson and Tracey, JJ., concur.

Footnotes

¹ 5 Phil. Rep., 682.

² Not reported.

Sanidad v COMELEC

2009-12-06T02:33:00.000-08:00

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-44640 October 12, 1976

PABLO C. SANIDAD and PABLITO V. SANIDAD, petitioner,
vs.
HONORABLE COMMISSION ON ELECTIONS and HONORABLE NATIONAL TREASURER, respondents.

G.R. No. L-44684. October 12,1976

VICENTE M. GUZMAN, petitioner,
vs.
COMMISSION ELECTIONS, respondent.

G.R. No. L-44714. October 12,1976

RAUL M. GONZALES, RAUL T. GONZALES, JR., and ALFREDO SALAPANTAN, petitioners,
vs.
HONORABLE COMMISSION ON SELECTIONS and HONORABLE NATIONAL TREASURER, respondents.

MARTIN, J,:

The capital question raised in these prohibition suits with preliminary injunction relates to the power of the incumbent President of the Philippines to propose amendments to the present Constitution in the absence of the interim National Assembly which has not been convened.

On September 2, 1976, President Ferdinand E. Marcos issued Presidential Decree No. 991 calling for a national referendum on October 16, 1976 for the Citizens Assemblies ("barangays") to resolve, among other things, the issues of martial law, the I . assembly, its replacement, the powers of such replacement, the period of its existence, the length of the period for tile exercise by the President of his present powers.1

Twenty days after or on September 22, 1976, the President issued another related decree, Presidential Decree No. 1031, amending the previous Presidential Decree No. 991, by declaring the provisions of presidential Decree No. 229 providing for the manner of voting and canvass of votes in "barangays" (Citizens Assemblies) applicable to the national referendum-plebiscite of October 16, 1976. Quite relevantly, Presidential Decree No. 1031 repealed Section 4, of Presidential Decree No. 991, the full text of which (Section 4) is quoted in the footnote below.²

On the same date of September 22, 1976, the President issued Presidential Decree No. 1033, stating the questions to be submitted to the people in the referendum-plebiscite on October 16, 1976. The Decree recites in its "whereas" clauses that the people's continued opposition to the convening of the National Assembly evinces their desire to have such body abolished and replaced thru a constitutional amendment, providing for a legislative body, which will be submitted directly to the people in the referendum-plebiscite of October 16.

The questions ask, to wit:

(1) Do you want martial law to be continued?

(2) Whether or not you want martial law to be continued, do you approve the following amendments to the Constitution? For the purpose of the second question, the referendum shall have the effect of a plebiscite within the contemplation of Section 2 of Article XVI of the Constitution.

PROPOSED AMENDMENTS:

1. There shall be, in lieu of the interim National Assembly, an interim Batasang Pambansa. Members of the interim Batasang Pambansa which shall not be more than 120, unless otherwise provided by law, shall include the incumbent President of the Philippines, representatives elected from the different regions of the nation, those who shall not be less than eighteen years of age elected by their respective sectors, and those chosen by the incumbent President from the members of the Cabinet. Regional representatives shall be apportioned among the regions in accordance with the number of their respective inhabitants and on the basis of a uniform and progressive ratio while the sectors shall be determined by law. The number of representatives from each region or sector and the, manner of their election shall be prescribed and regulated by law.

2. The interim Batasang Pambansa shall have the same powers and its members shall have the same functions, responsibilities, rights, privileges, and disqualifications as the interim National Assembly and the regular National Assembly and the members thereof. However, it shall not exercise the power provided in Article VIII, Section 14(l) of the Constitution.

3. The incumbent President of the Philippines shall, within 30 days from the election and selection of the members, convene the interim Batasang Pambansa and preside over its sessions until the Speaker shall have been elected. The incumbent President of the Philippines shall be the Prime Minister and he shall continue to exercise all his powers even after the interim Batasang Pambansa is organized and ready to discharge its functions and likewise he shall continue to exercise his 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.

4. The President (Prime Minister) and his Cabinet shall exercise all the powers and functions, and discharge the responsibilities of the regular President (Prime Minister) and his Cabinet, and shall be subject only to such disqualifications as the President (Prime Minister) may prescribe. The President (Prime Minister) if he so desires may appoint a Deputy Prime Minister or as many Deputy Prime Ministers as he may deem necessary.

5. The incumbent President shall continue to exercise legislative powers until martial law shall have been lifted.

6. Whenever in the judgment of the President (Prime Minister), there exists a grave emergency or a threat or imminence thereof, or whenever the interim Batasang Pambansa or the regular National Assembly fails or is unable to act adequately on any matter for any reason that in his judgment requires immediate action, he may, in order to meet the exigency, issue the necessary decrees, orders or letters of instructions, which shall form part of the law of the land.

7. The barangays and sanggunians shall continue as presently constituted but their functions, powers, and composition may be altered by law.

Referenda conducted thru the barangays and under the Supervision of the Commission on Elections may be called at any time the government deems it necessary to ascertain the will of the people regarding any important matter whether of national or local interest.

8. All provisions of this Constitution not inconsistent with any of these amendments shall continue in full force and effect.

9. These amendments shall take effect after the incumbent President shall have proclaimed that they have been ratified by I majority of the votes cast in the referendum-plebiscite."

The Commission on Elections was vested with the exclusive supervision and control of the October 1976 National Referendum-Plebiscite.

On September 27, 1976, PABLO C. SANIDAD and PABLITO V. SANIDAD, father and son, commenced L-44640 for Prohibition with Preliminary Injunction seeking to enjoin the Commission on Elections from holding and conducting the Referendum Plebiscite on October 16; to declare without force and effect Presidential Decree Nos. 991 and 1033, insofar as they propose amendments to the Constitution, as well as Presidential Decree No. 1031, insofar as it directs the Commission on Elections to supervise, control, hold, and conduct the Referendum-Plebiscite scheduled on October 16, 1976.

Petitioners contend that under the 1935 and 1973 Constitutions there is no grant to the incumbent President to exercise the constituent power to propose amendments to the new Constitution. As a consequence, the Referendum-Plebiscite on October 16 has no constitutional or legal basis.

On October 5, 1976, the Solicitor General filed the comment for respondent Commission on Elections, The Solicitor General principally maintains that petitioners have no standing to sue; the issue raised is political in nature, beyond judicial cognizance of this Court; at this state of the transition period, only the incumbent President has the authority to exercise constituent power; the referendum-plebiscite is a step towards normalization.

On September 30, 1976, another action for Prohibition with Preliminary Injunction, docketed as L-44684, was instituted by VICENTE M. GUZMAN, a delegate to the 1971 Constitutional Convention, asserting that the power to propose amendments to, or revision of the Constitution during the transition period is expressly conferred on the interim National Assembly under Section 16, Article XVII of the Constitution.3

Still another petition for Prohibition with Preliminary Injunction was filed on October 5, 1976 by RAUL M. GONZALES, his son RAUL, JR., and ALFREDO SALAPANTAN, docketed as L- 44714, to restrain the implementation of Presidential Decrees relative to the forthcoming Referendum-Plebiscite of October 16.

These last petitioners argue that even granting him legislative powers under Martial Law, the incumbent President cannot act as a constituent assembly to propose amendments to the Constitution; a referendum-plebiscite is untenable under the Constitutions of 1935 and 1973; the submission of the proposed amendments in such a short period of time for deliberation renders the plebiscite a nullity; to lift Martial Law, the President need not consult the people via referendum; and allowing 15-.year olds to vote would amount to an amendment of the Constitution, which confines the right of suffrage to those citizens of the Philippines 18 years of age and above.

We find the petitions in the three entitled cases to be devoid of merit.

Justiciability of question raised.

1. As a preliminary resolution, We rule that the petitioners in L-44640 (Pablo C. Sanidad and Pablito V. Sanidad) possess locus standi to challenge the constitutional premise of Presidential Decree Nos. 991, 1031, and 1033. It is now an ancient rule that the valid source of a stature Presidential Decrees are of such nature-may be contested by one who will sustain a direct injuries as a in result of its enforcement. At the instance of taxpayers, laws providing for the disbursement of public funds may be enjoined, upon the theory that the expenditure of public funds by an officer of the State for the purpose of executing an unconstitutional act constitutes a misapplication of such funds. 4 The breadth of Presidential Decree No. 991 carries all appropriation of Five Million Pesos for the effective implementation of its purposes. 5 Presidential Decree No. 1031 appropriates the sum of Eight Million Pesos to carry out its provisions. 6 The interest of the aforenamed petitioners as taxpayers in the lawful expenditure of these amounts of public money sufficiently clothes them with that personality to litigate the validity of the Decrees appropriating said funds. Moreover, as regards taxpayer's suits, this Court enjoys that open discretion to entertain the same or not. 7 For the present case, We deem it sound to exercise that discretion affirmatively so that the authority upon which the disputed Decrees are predicated may be inquired into.

2. The Solicitor General would consider the question at bar as a pure political one, lying outside the domain of judicial review. We disagree. The amending process both as to proposal and ratification, raises a judicial question. 8This is especially true in cases where the power of the Presidency to initiate the of normally exercised by the legislature, is seriously doubted. Under the terms of the 1973 Constitution, the power to propose amendments o the constitution resides in the interim National Assembly in the period of transition (See. 15, Transitory provisions). After that period, and the regular National Assembly in its active session, the power to propose amendments becomes ipso facto the prerogative of the regular National Assembly (Sec. 1, pars. 1 and 2 of Art. XVI, 1973 constitution). The normal course has not been followed. Rather than calling the National Assembly to constitute itself into a constituent assembly the incumbent President undertook the proposal of amendments and submitted the proposed amendments thru Presidential Decree 1033 to the people in a Referendum-Plebiscite on October 16. Unavoidably, the regularity regularity of the procedure for amendments, written in lambent words in the very Constitution sought to be amended, raises a contestable issue. The implementing Presidential Decree Nos. 991, 1031, and 1033, which commonly purport to have the force and effect of legislation are assailed as invalid, thus the issue of the validity of said Decrees is plainly a justiciable one, within the competence of this Court to pass upon. Section 2 (2), Article X of the new Constitution provides: "All cases involving the constitutionality of a treaty, executive agreement, or law may shall be heard and decided by the Supreme Court en banc and no treaty, executive agreement, or law may be declared unconstitutional without the concurrence of at least ten Members. ..." The Supreme Court has the last word in the construction not only of treaties and statutes, but also of the Constitution itself The amending, like all other powers organized in the Constitution, is in form a delegated and hence a limited power, so that the Supreme Court is vested with that authorities to determine whether that power has been discharged within its limits.

Political questions are neatly associated with the wisdom, of the legality of a particular act. Where the vortex of the controversy refers to the legality or validity of the contested act, that matter is definitely justiciable or non-political. What is in the heels of the Court is not the wisdom of the act of the incumbent President in proposing amendments to the Constitution, but his constitutional authority to perform such act or to assume the power of a constituent assembly. Whether the amending process confers on the President that power to propose amendments is therefore a downright justiciable question. Should the contrary be found, the actuation of the President would merely be abrutum fulmen. If the Constitution provides how it may be amended, the judiciary as the interpreter of that Constitution, can declare whether the procedure followed or the authority assumed was valid or not.¹⁰

We cannot accept the view of the Solicitor General, in pursuing his theory of non-justiciability, that the question of the President's authority to propose amendments and the regularity of the procedure adopted for submission of the proposal to the people ultimately lie in the judgment of the A clear Descartes fallacy of vicious circle. Is it not that the people themselves, by their sovereign act, provided for the authority and procedure for the amending process when they ratified the present Constitution in 1973? Whether, therefore, the constitutional provision has been followed or not is the proper subject of inquiry, not by the people themselves of course who exercise no power of judicial but by the Supreme Court in whom the people themselves vested that power, a power which includes the competence to determine whether the constitutional norms for amendments have been observed or not. And, this inquiry must be done a prior not a posterior i.e., before the submission to and ratification by the people.

Indeed, the precedents evolved by the Court or, prior constitutional cases underline the preference of the Court's majority to treat such issue of Presidential role in the amending process as one of non-political impression. In the Plebiscite Cases, ¹¹ the contention of the Solicitor General that the issue on the legality of Presidential Decree No. 73 "submitting to the Pilipino people (on January 15, 1973) for ratification or rejection the Constitution of the Republic of the Philippines proposed by the 1971 Constitutional Convention and appropriating fund s therefore "is a political one, was rejected and the Court unanimously considered the issue as justiciable in nature. Subsequently in the Ratification Cases¹² involving the issue of whether or not the validity of Presidential Proclamation No. 1102. announcing the Ratification by the Filipino people of the constitution proposed by the 1971 Constitutional Convention," partakes of the nature of a political question, the affirmative stand of' the Solicitor General was dismissed, the Court ruled that the question raised is justiciable. Chief Justice Concepcion, expressing the majority view, said, Thus, in the aforementioned plebiscite cases, We rejected the theory of the respondents therein that the question whether Presidential Decree No. 73 calling a plebiscite to be held on January 15, 1973, for the ratification or rejection of the proposed new Constitution, was valid or not, was not a proper subject of judicial inquiry because, they claimed, it partook of a political nature, and We unanimously declared that the issue was a justiciable one. With Identical unanimity. We overruled the respondent's contention in the 1971 habeas corpus cases, questioning Our authority to determine the constitutional sufficiency of the factual bases of the Presidential proclamation suspending the privilege of the writ of habeas corpus on August 21, 1971, despite the opposite view taken by this Court in Barcelon vs. Baker and Montenegro vs. Castaneda, insofar as it adhered to the former case, which view We, accordingly, abandoned and refused to apply. For the same reason, We did not apply and expressly modified, in Gonzales vs. Commission on Elections, the political-question theory adopted in Mabanag vs. Lopez Vito." ¹³ The return to Barcelon vs. Baker and Mabanag vs. Lopez Vito, urged by the Solicitor General, was decisively refused by the Court. Chief Justice Concepcion continued: "The reasons adduced in support thereof are, however, substantially the same as those given in support on the political question theory advanced in said habeas corpus and plebiscite cases, which were carefully considered by this Court and found by it to be legally unsound and constitutionally untenable. As a consequence. Our decisions in the aforementioned habeas corpus cases partakes of the nature and effect of a stare decisis which gained added weight by its virtual reiteration."

The amending process as laid out

in the new Constitution.

1. Article XVI of the 1973 Constitution on Amendments ordains:

SECTION 1. (1) Any amendment to, or revision of, this Constitution may be proposed by the National Assembly upon a vote of three-fourths of all its Members, or by a constitutional convention. (2) The National Assembly may, by a vote of two-thirds of all its Members, call a constitutional convention or, by a majority vote of all its Members, submit the question of calling such a convention to the electorate in an election.

SECTION 2. Any amendment to, or revision of, this Constitution shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not later than three months after the approval of such amendment or revision.

In the present period of transition, the interim National Assembly instituted in the Transitory Provisions is conferred with that amending power. Section 15 of the Transitory Provisions reads:

SECTION 15. The interim National Assembly, upon special call by the interim Prime Minister, may, by a majority vote of all its Members, propose amendments to this Constitution. Such amendments shall take effect when ratified in accordance with Article Sixteen hereof.

There are, therefore, two periods contemplated in the constitutional life of the nation, i.e., period of normalcy and period of transition. In times of normally, the amending process may be initiated by the proposals of the (1) regular National Assembly upon a vote of three-fourths of all its members; or (2) by a Constitutional Convention called by a vote of two-thirds of all the Members of the National Assembly. However the calling of a Constitutional Convention may be submitted to the electorate in an election voted upon by a majority vote of all the members of the National Assembly. In times of transition, amendments may be proposed by a majority vote of all the Members of the National Assembly upon special call by the interim Prime Minister,.

3. In sensu strictiore, when the legislative arm of the state undertakes the proposals of amendment to a Constitution, that body is not in the usual function of lawmaking. lt is not legislating when engaged in the amending process.16 Rather, it is exercising a peculiar power bestowed upon it by the fundamental charter itself. In the Philippines, that power is provided for in Article XVI of the 1973 Constitution (for the regular National Assembly) or in Section 15 of the Transitory Provisions (for the National Assembly). While ordinarily it is the business of the legislating body to legislate for the nation by virtue of constitutional conferment amending of the Constitution is not legislative in character. In political science a distinction is made between constitutional content of an organic character and that of a legislative character'. The distinction, however, is one of policy, not of law.¹⁷ Such being the case, approval of the President of any proposed amendment is a misnomer ¹⁸ The prerogative of the President to approve or disapprove applies only to the ordinary cases of legislation. The President has nothing to do with proposition or adoption of amendments to the Constitution. ¹⁹

III

Concentration of Powers

in the President during

crisis government.

1. In general, the governmental powers in crisis government the Philippines is a crisis government today are more or less concentrated in the President. ²⁰ According to Rossiter, "(t)he concentration of government power in a democracy faced by an emergency is a corrective to the crisis inefficiencies inherent in the doctrine of the separation of powers. In most free states it has generally been regarded as imperative that the total power of the government be parceled out among three mutually independent branches executive, legislature, and judiciary. It is believed to be destructive of constitutionalism if any one branch should exercise any two or more types of power, and certainly a total disregard of the separation of powers is, as Madison wrote in the Federalist, No. 47, 'the very definition of tyranny.' In normal times the separation of powers forms a distinct obstruction to arbitrary governmental action. By this same token, in abnormal times it may form an insurmountable barrier to a decisive emergency action in behalf of the state and its independent existence. There are moments in the life of any government when all powers must work together in unanimity of purpose and action, even if this means the temporary union of executive, legislative, and judicial power in the hands of one man. The more complete the separation of powers in a constitutional system, the more difficult and yet the more necessary will be their fusion in time of crisis. This is evident in a comparison of the crisis potentialities of the cabinet and presidential systems of government. In the former the all-important harmony of legislature and executive is taken for granted; in the latter it is neither guaranteed nor to be to confidently expected. As a result, cabinet is more easily established and more trustworthy than presidential dictatorship. The power of the state in crisis must not only be concentrated and expanded; it must also be freed from the normal system of constitutional and legal limitations. ²¹ John Locke, on the other hand, claims for the executive in its own right a broad discretion capable even of setting aside the ordinary laws in the meeting of special exigencies for which the legislative power had not provided. ²² The rationale behind such broad emergency powers of the Executive is the release of the government from "the paralysis of constitutional restrains" so that the crisis may be ended and normal times restored.

2. The presidential exercise of legislative powers in time of martial law is now a conceded valid at. That sun clear authority of the President is saddled on Section 3 (pars. 1 and 2) of the Transitory Provisions, thus:²³

The incumbent President of the Philippines shall initially convene the interim National Assembly and shall preside over its sessions until the interim Speaker shall have been elected. He shall continue to exercise his 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 the calls upon the interim National Assembly to elect the interim President and the interim Prime Minister, who shall then exercise their respective powers vested by this Constitution.

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, 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.

"It is unthinkable," said Justice Fernandez, a 1971 Constitutional Convention delegate, "that the Constitutional Convention, while giving to the President the discretion when to call the interim National Assembly to session, and knowing that it may not be convened soon, would create a vacuum in the exercise of legislative powers. Otherwise, with no one to exercise the lawmaking powers, there would be paralyzation of the entire governmental machinery."²⁴ Paraphrasing Rossiter, this is an extremely important factor in any constitutional dictatorship which extends over a period of time. The separation of executive and legislature ordained in the Constitution presents a distinct obstruction to efficient crisis government. The steady increase in executive power is not too much a cause for as the steady increase in the magnitude and complexity of the problems the President has been called upon by the Filipino people to solve in their behalf, which involve rebellion, subversion, secession, recession, inflation, and economic crisis-a crisis greater than war. In short, while conventional constitutional law just confines the President's power as Commander-in-Chief to the direction of the operation of the national forces, yet the facts of our political, social, and economic disturbances had convincingly shown that in meeting the same, indefinite power should be attributed to tile President to take emergency measures ²⁵

Authority of the incumbent

President t to propose

amendments to the Constitution.

1. As earlier pointed out, the power to legislate is constitutionally consigned to the interim National Assembly during the transition period. However, the initial convening of that Assembly is a matter fully addressed to the judgment of the incumbent President. And, in the exercise of that judgment, the President opted to defer convening of that body in utter recognition of the people's preference. Likewise, in the period of transition, the power to propose amendments to the Constitution lies in the interim National Assembly upon special call by the President (See. 15 of the Transitory Provisions). Again, harking to the dictates of the sovereign will, the President decided not to call the interim National Assembly. Would it then be within the bounds of the Constitution and of law for the President to assume that constituent power of the interim Assembly vis-a-vis his assumption of that body's legislative functions? The answer is yes. If the President has been legitimately discharging the legislative functions of the interim Assembly, there is no reason why he cannot validly discharge the function of that Assembly to propose amendments to the Constitution, which is but adjunct, although peculiar, to its gross legislative power. This, of course, is not to say that the President has converted his office into a constituent assembly of that nature normally constituted by the legislature. Rather, with the interim National Assembly not convened and only the Presidency and the Supreme Court in operation, the urges of absolute necessity render it imperative upon the President to act as agent for and in behalf of the people to propose amendments to the Constitution. Parenthetically, by its very constitution, the Supreme Court possesses no capacity to propose amendments without constitutional infractions. For the President to shy away from that actuality and decline to undertake the amending process would leave the governmental machineries at a stalemate or create in the powers of the State a destructive vacuum, thereby impeding the objective of a crisis government "to end the crisis and restore normal times." In these parlous times, that Presidential initiative to reduce into concrete forms the constant voices of the people reigns supreme. After all, constituent assemblies or constitutional conventions, like the President now, are mere agents of the people .26

2. The President's action is not a unilateral move. As early as the referendums of January 1973 and February 1975, the people had already rejected the calling of the interim National Assembly. The Lupong Tagapagpaganap of the Katipunan ng mga Sanggunian, the Pambansang Katipunan ng mga Barangay, and the Pambansang Katipunan ng mga Barangay, representing 42,000 barangays, about the same number of Kabataang Barangay organizations, Sanggunians in 1,458 municipalities, 72 provinces, 3 sub-provinces, and 60 cities had informed the President that the prevailing sentiment of the people is for the abolition of the interim National Assembly. Other issues concerned the lifting of martial law and amendments to the Constitution .27 The national organizations of Sangguniang Bayan presently proposed to settle the issues of martial law, the interim Assembly, its replacement, the period of its existence, the length of the period for the exercise by the President of its present powers in a referendum to be held on October 16 .²⁸ The Batasang Bayan (legislative council) created under Presidential Decree 995 of September 10, 1976, composed of 19 cabinet members, 9 officials with cabinet rank, 91 members of the Lupong Tagapagpaganap (executive committee) of the Katipunan ng mga Sangguniang Bayan voted in session to submit directly to the people in a plebiscite on October 16, the previously quoted proposed amendments to the Constitution, including the issue of martial law .29 Similarly, the "barangays" and the "sanggunians" endorsed to the President the submission of the proposed amendments to the people on October 16. All the foregoing led the President to initiate the proposal of amendments to the Constitution and the subsequent issuance of Presidential Decree No, 1033 on September 22, 1976 submitting the questions (proposed amendments) to the people in the National Referendum-Plebiscite on October 16.

The People is Sovereign

1. Unlike in a federal state, the location of sovereignty in a unitary state is easily seen. In the Philippines, a republican and unitary state, sovereignty "resides in the people and all government authority emanates from them .30 In its fourth meaning, Savigny would treat people as "that particular organized assembly of individuals in which, according to the Constitution, the highest power exists." ³¹ This is the concept of popular sovereignty. It means that the constitutional legislator, namely the people, is sovereign ³² In consequence, the people may thus write into the Constitution their convictions on any subject they choose in the absence of express constitutional prohibition. ³³ This is because, as Holmes said, the Constitution "is an experiment, as all life is all experiment."³⁴ "The necessities of orderly government," wrote Rottschaefer, "do not require that one generation should be permitted to permanently fetter all future generations." A constitution is based, therefore, upon a self-limiting decision of the people when they adopt it. ³⁵

2. The October 16 referendum-plebiscite is a resounding call to the people to exercise their sovereign power as constitutional legislator. The proposed amendments, as earlier discussed, proceed not from the thinking of a single man. Rather, they are the collated thoughts of the sovereign will reduced only into enabling forms by the authority who can presently exercise the powers of the government. In equal vein, the submission of those proposed amendments and the question of martial law in a referendum-plebiscite expresses but the option of the people themselves implemented only by the authority of the President. Indeed, it may well be said that the amending process is a sovereign act, although the authority to initiate the same and the procedure to be followed reside somehow in a particular body.

Referendum-Plebiscite not

rendered nugatory by the

participation of the 15-year olds.

1. October 16 is in parts a referendum and a plebiscite. The question - (1) Do you want martial law to be continued? - is a referendum question, wherein the 15-year olds may participate. This was prompted by the desire of the Government to reach the larger mas of the people so that their true pulse may be felt to guide the President in pursuing his program for a New Order. For the succeeding question on the proposed amendments, only those of voting age of 18 years may participate. This is the plebiscite aspect, as contemplated in Section 2, Article XVI of the new Constitution. ³⁶ On this second question, it would only be the votes of those 18 years old and above which will have valid bearing on the results. The fact that the voting populace are simultaneously asked to answer the referendum question and the plebiscite question does not infirm the referendum-plebiscite. There is nothing objectionable in consulting the people on a given issue, which is of current one and submitting to them for ratification of proposed constitutional amendments. The fear of commingled votes (15-year olds and 18-year olds above) is readily dispelled by the provision of two ballot boxes for every barangay center, one containing the ballots of voters fifteen years of age and under eighteen, and another containing the ballots of voters eighteen years of age and above. ³⁷The ballots in the ballot box for voters fifteen years of age and under eighteen shall be counted ahead of the ballots of voters eighteen years and above contained in another ballot box. And, the results of the referendum-plebiscite shall be separately prepared for the age groupings, i.e., ballots contained in each of the two boxes.³⁸

2. It is apt to distinguish here between a "referendum" and a "plebiscite." A "referendum" is merely consultative in character. It is simply a means of assessing public reaction to the given issues submitted to the people foe their consideration, the calling of which is derived from or within the totality of the executive power of the President.³⁹ It is participated in by all citizens from the age of fifteen, regardless of whether or not they are illiterates, feeble-minded, or ex- convicts .⁴⁰ A "plebiscite," on the other hand, involves the constituent act of those "citizens of the Philippines not otherwise disqualified by law, who are eighteen years of age or over, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months preceding the election Literacy, property or any other substantive requirement is not imposed. It is generally associated with the amending process of the Constitution, more particularly, the ratification aspect.

VII

1. There appeals to be no valid basis for the claim that the regime of martial law stultifies in main the freedom to dissent. That speaks of a bygone fear. The martial law regime which, in the observation of Justice Fernando, ⁴¹ is impressed with a mild character recorded no State imposition for a muffled voice. To be sure, there are restraints of the individual liberty, but on certain grounds no total suppression of that liberty is aimed at. The for the referendum-plebiscite on October 16 recognizes all the embracing freedoms of expression and assembly The President himself had announced that he would not countenance any suppression of dissenting views on the issues, as he is not interested in winning a "yes" or "no" vote, but on the genuine sentiment of the people on the issues at hand. ⁴² Thus, the dissenters soon found their way to the public forums, voicing out loud and clear their adverse views on the proposed amendments and even (in the valid ratification of the 1973 Constitution, which is already a settled matter.⁴³ Even government employees have been held by the Civil Service Commission free to participate in public discussion and even campaign for their stand on the referendum-plebiscite issues.⁴⁴

VIII

Time for deliberation

is not short.

1. The period from September 21 to October 16 or a period of 3 weeks is not too short for free debates or discussions on the referendum-plebiscite issues. The questions are not new. They are the issues of the day. The people have been living with them since the proclamation of martial law four years ago. The referendums of 1973 and 1975 carried the same issue of martial law. That notwithstanding, the contested brief period for discussion is not without counterparts in previous plebiscites for constitutional amendments. Justice Makasiar, in the Referendum Case, recalls: "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 was published in only three consecutive issues of the Official Gazette for 10 days prior to the scheduled plebiscite (Com. Act 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)."⁴⁵

2. It is worthy to note that Article XVI of the Constitution makes no provision as to the specific date when the plebiscite shall be held, but simply states that it "shall be held not later than three months after the approval of such amendment or revision." In Coleman v. Miller, ⁴⁶ the United States Supreme court held that this matter of submission involves "an appraisal of a great variety of relevant conditions, political, social and economic," which "are essentially political and not justiciable." The constituent body or in the instant cases, the President, may fix the time within which the people may act. This is because proposal and ratification are not treated as unrelated acts, but as succeeding steps in a single endeavor, the natural inference being that they are not to be widely separated in time; second, it is only when there is deemed to be a necessity therefor that amendments are to be proposed, the reasonable implication being that when proposed, they are to be considered and disposed of presently, and third, ratification is but the expression of the approbation of the people, hence, it must be done contemporaneously. ⁴⁷ In the words of Jameson, "(a)n alteration of the Constitution proposed today has relation to the sentiment and the felt needs of today, and that, if not ratified early while that sentiment may fairly be supposed to exist. it ought to be regarded as waived, and not again to be voted upon, unless a second time proposed by proper body

IN RESUME

The three issues are

1. Is the question of the constitutionality of Presidential Decrees Nos. 991, 1031 and 1033 political or justiciable?

2. During the present stage of the transition period, and under, the environmental circumstances now obtaining, does the President possess power to propose amendments to the Constitution as well as set up the required machinery and prescribe the procedure for the ratification of his proposals by the people?

3. Is the submission to the people of the proposed amendments within the time frame allowed therefor a sufficient and proper submission?

Upon the first issue, Chief Justice Fred Ruiz Castro and Associate Justices Enrique M. Fernando, Claudio Teehankee, Antonio P. Barredo, Cecilia Munoz Palma, Hermogenes Concepcion Jr. and Ruperto G. Martin are of the view that the question posed is justiciable, while Associate Justices Felix V. Makasiar, Felix Q. Antonio and Ramon C. Aquino hold the view that the question is political.

Upon the second issue, Chief Justice Castro and Associate Justices Barredo, Makasiar, Antonio, Aquino, Concepcion Jr. and Martin voted in the affirmative, while Associate Justices Teehankee and Munoz Palma voted in the negative. Associate Justice Fernando, conformably to his concurring and dissenting opinion in Aquino vs. Enrile (59 SCRA 183), specifically dissents from the proposition that there is concentration of powers in the Executive during periods of crisis, thus raising serious doubts as to the power of the President to propose amendments.

Upon the third issue, Chief Justice Castro and Associate Justices Barredo, Makasiar, Aquino, Concepcion Jr. and Martin are of the view that there is a sufficient and proper submission of the proposed amendments for ratification by the people. Associate Justices Barredo and Makasiar expressed the hope, however that the period of time may be extended. Associate Justices Fernando, Makasiar and Antonio are of the view that the question is political and therefore beyond the competence and cognizance of this Court, Associate Justice Fernando adheres to his concurrence in the opinion of Chief Justice Concepcion in Gonzales vs. COMELEC (21 SCRA 774).Associate Justices Teehankee and MUNOZ Palma hold that prescinding from the President's lack of authority to exercise the constituent power to propose the amendments, etc., as above stated, there is no fair and proper submission with sufficient information and time to assure intelligent consent or rejection under the standards set by this Court in the controlling cases of Gonzales, supra, and Tolentino vs. COMELEC (41 SCRA 702).

Chief Justice Castro and Associate Justices Barredo, Makasiar, Antonio, Aquino, Concepcion Jr. and Martin voted to dismiss the three petitions at bar. For reasons as expressed in his separate opinion, Associate Justice Fernando concurs in the result. Associate Justices Teehankee and Munoz Palma voted to grant the petitions.

ACCORDINGLY, the vote being 8 to 2 to dismiss, the said petitions are hereby dismissed. This decision is immediately executory.

SO ORDERED.

Aquino, J, in the result.

Separate Opinions

CASTRO, C.J.:, concurring:

From the challenge as formulated in the three petitions at bar and the grounds advanced be the Solicitor General in opposition thereto, as well as the arguments adduced by the counsels of the parties at the hearing had on October 7 and 8, 1976, three vital issues readily project themselves as the centers of controversy, namely:

(1) Is the question of the constitutionality of Presidential Decrees Nos. 991, 1031 and 1033 political or justiciable?

(2) During the present stage of the transition period, and under the environmental circumstances now obtaining, does the President possess power to propose amendments to the Constitution as well as set up the required machineries and prescribe the procedure for the ratification of his proposals by the people?

(3) Is the submission to the people of the proposed amendments within the time frame allowed therefor a sufficient and proper, submission"

First Issue

The threshold question is not at all one of first impression Specifically on the matter of proposals to amend the Constitution, this Court, in Mabanag vs. Lopez Vito (78 Phil. 1), inceptively announced the dictum that-

Proposal to amend the Constitution is a highly political function performed by the Congress in its sovereign legislative capacity and committed to its charges by the Constitution itself. The exercise of this power is even independent of any intervention by the Chief Executive. If on grounds of expediency scrupulous attention of the judiciary be needed to safeguard public interest, there is less reason for judicial inquiry into the validity of a proposal than into that of a ratification.

In time, however, the validity of the said pronouncement was eroded. In the assessment of the Court itself-

The force of this precedent has been weakened, however, by Suanes vs. Chief Accountant of the Senate (81 Phil. 818), Avelino vs. Cuenco (L-2581, March 4 and 14, 1949), Tanada vs. Cuenco (L-10520, February 28, 1957), and Macias vs. Commission on Elections (L-18684, September 14, 1961).

xxx xxx xxx

In short, the issue whether or not a Resolution of Congress-acting as a constituent assembly-violates the Constitution is essentially justiciable, not political, and, hence, subject to judicial review, and, to the extent this view may be inconsistent with the stand taken in Mabanag vs. Lopez Vito the latter should be deemed modified accordingly. The Members of the Court are unanimous on this point." (Gonzales vs. Commission on Elections, et al, L-28196, November 9, 1967, 21 SCRA 774, 786-787).

The abandonment of the Mabanag vs. Lopez Vito doctrine appears to have been completed when, in Javellana vs. Secretary, et al. (L-36142, March 3l, 1973, 50 SCRA 30), six members of the Court concurred in the view that the question of whether the 1973 Constitution was ratified in accordance with the provisions of Article XV (Amendments) of the 1935 Constitution is inherently and essentially justiciable.

As elucidated therein, with extensive quotations from Tanada vs. Cuenco (103 Phil. 1051)-

... the term 'political question' connotes, in legal parlance, what it means in ordinarily parlance, namely, a question of policy in matters concerning the government of a State, as a body politic. In other words, in the language of Corpus Juris Secundum (supra), it refers to 'those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the Legislature or executive branch of the government.' It is concerned with issues dependent upon the wisdom, not legality, of a particular measure.'

Accordingly, when the grant of power is qualified, conditional or subject to limitations, the issue on whether or not the prescribed qualifications or conditions have been met, or the limitations respected, is justiciable or non-political, the crux of the problem being one of legality or validity of the contested act, not its wisdom. Otherwise, said qualifications, conditions or limitations - particularly those prescribed or imposed by the Constitution - would be set at naught." (Javellana vs. Executive Secretary, supra).

So it is in the situation here presented. The basic issue is the constitutional validity of the presidential acts of proposing amendments to the Constitution and of calling a referendum-plebiscite for the ratification of the proposals made. Evidently, the question does not concern itself with the wisdom of the exercise of the authority claimed or of the specific amendments proposed. Instead the inquiry vel non is focused solely on the existence of the said power in the President - a question purely of legality determinable thru interpretation and construction of the letter and spirit of the Constitution by the Court as the final arbiter in the delineation of constitutional boundaries and the allocation of constitutional powers.

For the Court to shun cognizance of the challenge herein presented, especially in these parlous years, would be to abdicate its constitutional powers, shirk its constitutional responsibility, and deny the people their ultimate recourse for judicial determination.

I have thus no hesitancy in concluding that the question here presented is well within the periphery of judicial inquiry.

Second Issue

The main question stands on a different footing; it appears unprecedented both here and elsewhere. Its solution, I believe, can be found and unraveled only by a critical assessment of the existing legal order in the light of the prevailing political and factual milieu.

To be sure, there is an impressive array of consistent jurisprudence on the proposition that, normally or under normal conditions, a Constitution may be amended only in accord with the procedure set forth therein. Hence, if there be any such prescription for the amendatory process as invariable there is because one of the essential parts of a Constitution is the so-called "constitution of sovereignty" which comprises the provision or provisions on the modes in accordance with which formal changes in the fundamental law may be effected the same would ordinarily be the controlling criterion for the validity of the amendments sought.

Unfortunately, however, during the present transition period of our political development, no express provision is extant in the Constitution regarding the agency or agent by whom and the procedure by which amendments thereto may be proposed and ratified fact overlooked by those who challenge the validity of the presidential acts in the premises. This is so because there are at least two distinctly in the transition from the old system of government under the 1935 Constitution to the new one established by the 1973 Constitution.

The first stage comprises the period from the effectivity of the Constitution on January 17, 1973 to the time the National Assembly is convened by the incumbent President and the interim President and the interim Prime Minister are chosen Article XVII, Sections 1 and 3[1]. The existence of this stage as an obvious fact of the nation's political life was recognized by the Court in Aquino vs. Commission on Elections, et al. (L-40004, January 31, 1975, 62 SCRA 275), when it rejected the claim that, under the 1973 Constitution, the President was in duty bound to convene the interim National Assembly soon after the Constitution took effect.

The second stage embraces the period from the date the interim National Assembly is convened to the date the Government described in Articles VII to IX of the Constitution is inaugurated, following the election of the members of the regular National Assembly (Article XVII, Section 1) and the election of the regular President and Prime Minister,. This is as it should be because it is recognized that the President has been accorded the discretion to determine when he shall initially convene the interim National Assembly, and his decision to defer the convocation thereof has found overwhelming support by the sovereign people in two previous referenda, therein giving reality to an interregnum between the effectivity of the Constitution and the initial convocation of the interim National Assembly, which interregnum, as aforesaid, constitutes the first stage in the transition period.

Against this factual backdrop, it is readily discernible that neither of the two sets of provisions embodied in the Constitution on the amendatory process applied during the said first stage. Thus, Section 15, Article XVII (Transitory Provisions) provides-

"Sec. 15. The interim National Assembly, upon special call by the interim Prime Minister, may, by a majority vote of all its Members, propose amendments to this Constitution. Such amendments shall take effect when ratified in accordance with Article Sixteen hereof."

Patently, the reference to the "interim National Assembly" and the "interim Prime Minister" limits the application thereof to the second stage of the transition period, i.e.,., after the interim? National Assembly shall have been convened and the interim Prime Minister shall have been chosen.

Upon the other hand, the provisions of Article XVI (Amendments), to wit-

SECTION 1. (1) Any amendment to, or revision of, this Constitution may be proposed by the National Assembly upon a vote of three-fourths of all its Members, or by a constitutional convention.

(2) The National Assembly may, by a vote of two-thirds of all its Members, call a constitutional convention or, by a majority vote of all its Members, submit the question of ceiling such a convention to the electorate in an election.

SEC. 2. Any amendment to, or revision of, this Constitution shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not later than three months after the approval of such amendment or revision.

unequivocally contemplate amendments after the regular Government shall have become fully operative, referring as they do to the National Assembly which will come into being only at that time.

In the face of this constitutional hiatus, we are confronted with the dilemma whether amendments to the Constitution may be effected during the aforesaid first stage and, if in the affirmative, by whom and in what manner such amendments may be proposed and ratified.

Susceptibility to change is one of the hallmarks of an Ideal Constitution. Not being a mere declaration of the traditions of a nation but more the embodiment of a people's hopes and aspirations, its strictures are not unalterable. They are, instead, dynamic precepts intended to keep in stride with and attuned to the living social organism they seek to fashion and govern. If it is conceded that "the political or philosophical aphorism of one generation is doubted by the next and entirely discarded by the third," then a Constitution must be able to adjust to the changing needs and demands of society so that the latter may survive, progress and endure. On these verities, there can be no debate.

During the first stage of the transition period in which the Government is at present - which is understandably the most critical - the need for change may be most pressing and imperative, and to disavow the existence of the right to amend the Constitution would be sheer political heresy. Such view would deny the people a mechanism for effecting peaceful change, and belie the organic conception of the Constitution by depriving it of its means of growth. Such a result obviously could not have been intended by the framers of the fundamental law.

It seems, however, that the happenstance that the first period would come to pass before the convocation of the interim National Assembly was not anticipated, hence, the omission of an express mandate to govern the said situation in so far as amendments are concerned. But such omission through inadvertence should not, because it cannot, negate the sovereign power of the people to amend the fundamental charter that governs their lives and their future and perhaps even the very survival of the nation.

Upon the other hand, it is clear from the afore-quoted provisions on the amendatory process that the intent was, instead, to provide a simpler and more expeditious mode of amending the Constitution during the transition period. For, while under Article XVI thereof, proposals for amendment may be made directly by the regular National Assembly by a vote of at least three-fourths of all its members, under Section 15 of Article XVII, a bare majority vote of all the members of the National Assembly would suffice for the purpose. The relaxation and the disparity in the vote requirement are revealing. The can only signify a recognition of the need to facilitate the adoption of amendments during the second stage of the transition period so that the interim National Assembly will be able, in a manner of speaking, to iron out the kinks in the new Constitution, remove imperfections therein, and provide for changed or changing circumstances before the establishment of the regular Government. In this contest, therefore, it is inutile speculation to assume that the Constitution was intended to render impotent or ar the effectuation of needful change at an even more critical period - the first stage. With greater reason, therefore, must the right and power to amend the Constitution during the first stage of te transition period be upheld, albeit within its express and implied constraints.

Neither can it be successfully argued, in the same context and in the present posture, that the Constitution may be amended during the said first stage only by convening the interim National Assembly. That is to say and require that he said stage must first be brought to an end before any amendment may be proposed and ratified. Settled jurisprudence does not square with such a proposition. As aptly noted in Aquino vs. Commission on Elections, et al., supra, the framers of the Constitution set no deadline for the convening of the interim National Assembly because they could not have foreseen how long the crises which impelled the proclamation and justify the continued state of martial law would last. Indeed, the framers committed to the sound judgment is not subject to judicial review, save possibly to determine whether arbitrariness has infected such exercise; absent such a taint, the matter is solely in the keeping of the President. To thus content that only by convening the interim National Assembly may the Constitution be amended at this time would effectively override the judgement vested in the President, even in default of any he has acted arbitrarily or gravely abuse his discretion. Furthermore, to sustain such a contention would not only negate the mandate so resoundingly expressed by the people in two national referenda against the immediate convening of the interim National Assembly, but as well deride their overwhelming approval of the manner in which the President has exercised the legislative power to issue proclamations, orders, decrees and instructions having the stature and force of law.

Given the constitutional stalemate or impasse spawned by these supervening developments, the logical query that compels itself for resolution is: By whom, then, may proposals for the amendment of the Constitution be made and in what manner may said proposals be ratified by the people?

It is conventional wisdom that, conceptually, the constituent power is not to be confuse with legislative power in general because the prerogative to propose amendments to the Constitution is not in any sense embraced within the ambit of ordinary law-making. Hence, there is much to recommend the proposition that, in default of an express grant thereof, the legislature - traditionally the delegated repository thereof - may not claim it under a general grant of legislative authority. In the same vein, neither would it be altogether unassailable to say that because by constitutional tradition and express allocation the constituent power under the Constitution is locate in the law-making agency and at this stage of the transition period the law-making authority is firmly recognized as being lodged in the President, the said constituent power should now logically be in the hands of te President who may thus exercise it in place of the interim National Assembly. Instead,, as pointed out in Gonzales vs. Commission on Elections, et al., supra, the power to amend the Constitution or to propose amendments thereto

... is part of the inherent powers of the people - as the repository of sovereignty in a republican state, such as ours - t o make, and, hence, to amend their own Fundamental Law.

As such, it is undoubtedly a power that only the sovereign people, either directly by themselves or through their chosen delegate, can wield. Since it has been shown that the people, inadvertently or otherwise, have not delegated that power to inadvertently or otherwise, have not delegated that power to any instrumentality during the current stage of our hegira from crisis to normalcy, it follows of necessity that the same remains with them for them to exercise in the manner they see fit and through the agency they choose. And, even if it were conceded that - as it is reputedly the rule in some jurisdictions - a delegation of the constituent authority amounts to a complete divestiture from the people of the power delegated which they may not thereafter unilaterally reclaim from the delegate, there would be no violence donde to such rule, assuming it to be applicable here, inasmuch as that power, under the environmental circumstance adverted to, has not been delegated to anyone in the first place. The constituent power during the first stage of the transition period belongs to and remains with the people, and accordingly may be exercised by them - how and when - at their pleasure.

At this juncture, a flashback to the recent and contemporary political ferment in the country proves revelatory. The people, shocked and revolted by the "obvious immorality" of the unabashed manner by which the delegates to the Constitutional Convention virtually legislated themselves into office as ipso facto members of the interim National Assembly by the mere fiat of voting for the transitory provisions of the Constitution. and the stark reality that the unwieldy political monstrosity that the interim Assembly portended to be would have proven to be a veritable drain on the meager financial resources of a nation struggling for survival, have unequivocally put their foot down, as it were, on the convocation thereof. But this patently salutary decision of the people proved to be double-edged. It likewise bound the political machinery of the Government in a virtual straight-jacket and consigned the political evolution of the nation into a state of suspended animation. Faced with the ensuing dilemma, the people understandably agitated for a solution. Through consultations in the barangays and sanggunian assemblies, the instrumentalities through which the people's voice is articulated in the unique system of participatory democracy in the country today, the underpinnings for the hastening of the return to constitutional normalcy quickly evolved into an overwhelming sentiment to amend the Constitution in order to replace the discredited interim National Assembly with what the people believe will be an appropriate agency to eventually take over the law-making power and thus pave the way for the early lifting of martial rule. In pursuit of this sentiment, and to translate its constraints into concrete action, the Pambansang Katipunan ng Barangay, the Pambansang Katipunan ng mga Kabataang Barangay, the Lupong Tagapagpaganap of the Katipunan ng mga Barangay, the Pambansang Katipunan ng mga Kabataang Barangay the Lupong Tagapagpaganap of the Katipunan ng mga Sanggunian, and finally the Batasang Bayan, to a man and as one voice, have come forward with definitive proposals for the amendment of the Constitution, and, choosing the President the only political arm of the State at this time through which that decision could be implemented and the end in view attained as their spokesman, proposed the amendments under challenge in the cases at bar.

In the light of this milieu and its imperatives, one thing is inescapable: the proposals now submitted to the people for their ratification in the forthcoming referendum-plebiscite are factually not of the President; they are directly those of the people themselves speaking thru their authorized instrumentalities. The President merely formalized the said proposals in Presidential Decree No. 1033. It being conceded in all quarters that sovereignty resides in the people and it having been demonstrated that their constituent power to amend the Constitution has not been delegated by them to any instrumentality of the Government during the present stage of the transition period of our political development, the conclusion is ineluctable that their exertion of that residuary power cannot be vulnerable to any constitutional challenge as being ultra vires. Accordingly, without venturing to rule on whether or not the President is vested with constituent power as it does not appear necessary to do so in the premises the proposals here challenged, being acts of the sovereign people no less, cannot be said to be afflicted with unconstitutionality. A fortiori, the concomitant authority to call a plebiscite and to appropriate funds therefor is even less vulnerable not only because the President, in exercising said authority has acted as a mere alter ego of the people who made the proposals, but likewise because the said authority is legislative in nature rather than constituent.

III

Third Issue

Little need be said of the claimed insufficiency and impropriety of the submission of the proposed amendments for ratification from the standpoint of time. The thesis cannot be disputed that a fair submission presupposes an adequate time lapse to enable the people to be sufficiently enlightened on the merits or demerits of the amendments presented for their ratification or rejection. However, circumstances there are which unmistakably demonstrated that the is met. Even if the proposal appear to have been formalized only upon the promulgation of Presidential Decree No. 1033 on September 22, 1976, they are actually the crystallization of sentiments that for so long have preoccupied the minds of the people and their authorized representatives, from the very lowest level of the political hierarchy. Hence, unlike proposals emanating from a legislative body, the same cannot but be said to have been mulled over, pondered upon, debated, discussed and sufficiently understood by the great masses of the nation long before they ripened into formal proposals.

Besides. it is a fact of which judicial notice may well be taken that in the not so distant past when the 1973 Constitution was submitted to the people for ratification, an all-out campaign, in which all the delegates of the Constitutional Convention reportedly participated, was launched to acquaint the people with the ramifications and working of the new system of government sought to be inaugurated thereunder. It may thus well be assumed that the people in general have since acquired, in the least, a working knowledge of the entirety of the Constitution. The changes now proposed the most substantial of which being merely the replacement of the interim National assembly with another legislative arm for the Government during the transition period until the regular National Assembly shall have been constituted do not appear to be of such complexity as to require considerable time to be brought home to the full understanding of the people. And, in fact, the massive and wide-ranging informational and educational campaign to this end has been and still is in full swing, with all the media the barangay, the civic and sectoral groups, and even the religious all over the land in acting and often enthusiastic if not frenetic involvement.

Indeed, when the people cast their votes on October 16, a negative vote could very well mean an understanding of the proposals which they reject; while an affirmative vote could equally be indicative Of such understanding and/or an abiding credence in the fidelity with which the President has kept the trust they have confided to him as President and administrator of martial rule

Conclusion

It is thus my considered view that no question viable for this court to pass judgment upon is posed. Accordingly, I vote for the outright dismissal of the three petitions at bar.

FERNANDO, J., concurring and dissenting:

These three petitions, the latest in a series of cases starting from Planas v. Commission on Elections continuing with the epochal resolution in Javellana v. Executive Secretary and followed successively in three crucial decisions, Aquino v. Ponce Enrile Aquino v. Commission on Elections, and Aquino v Military Commission,⁵ manifest to the same degree the delicate and awesome character of the function of judicial review. While previous rulings supply guidance and enlightenment, care is to be taken to avoid doctrinaire rigidity unmindful of altered circumstances and the urgencies of the times. It is inappropriate to resolve the complex problems of a critical period without full awareness of the consequences that flow from whatever decision is reached. Jural norms must be read in the context of social facts, There is need therefore of adjusting inherited principles to new needs. For law, much more so constitutional law, is simultaneously a reflection of and a force in the society that it controls. No quality then can be more desirable in constitutional adjudication than that intellectual and imaginative insight which goes into the heart of the matter. The judiciary must survey things as they are in the light of what they must become It must inquire into the specific problem posed not only in terms of the teaching of the past but also of the emerging political and legal theory, especially so under a leadership notable for its innovative approach to social problems and the vigor of its implementation. This, on the one side. It must equally be borne in mind through that this Court must be conscious of the risk inherent in its being considered as a mere subservient instrument of government policy however admittedly salutary or desirable. There is still the need to demonstrate that the conclusion reached by it in cases appropriate for its determination has support in the law that must be applied. To my mind that was the norm followed, the conclusion reached being that the three petitions be dismissed. I am in agreement. It is with regret however that based on my reading of past decisions, both Philippine and American, and more specifically my concurring opinion in Aquino v. Ponce Enrile, I must dissent from the proposition set forth in the able and scholarly opinion of Justice Martin that there is concentration of power in the President during a crisis government. Consequently, I cannot see my way clear to accepting the view that the authority to propose amendments is not open to question. At the very least, serious doubts could be entertained on the matter.

1. With due respect then, I have to dissociate myself from my brethren who would rule that governmental powers in a crisis government, following Rossiter, "are more or less concentrated in the President." Adherence to my concurring and dissenting opinion in Aquino v. Ponce Enrile leaves me no choice.

It must be stated at the outset that with the sufficiency of doctrines supplied by our past decisions to point the way to what I did consider the appropriate response to the basic issue raised in the Aquino and the other habeas corpus petitions resolved jointly, it was only in the latter portion of my opinion that reference was made to United States Supreme Court pronouncements on martial law, at the most persuasive in character and rather few in number "due no doubt to the, absence in the American Constitution of any provision concerning it." 7 It was understandable then that it was only after the landmark Ex parte Milligan case, that commentators like Cooley in 1868 and Watson in 1910 paid attention, minimal by that, to the subject." It was next set forth that in the works on American constitutional law published in this century specially after the leading cases of cases Sterling v. Constant in and Duncan v. Kahanamoku, "there was a fuller treatment of the question of martial law While it is the formulation of Willoughby that for me is most acceptable, my opinion did take note that another commentator, Burdick, came out earlier with a similar appraisal.¹⁰ Thus: "So called martial law, except in occupied territory of an enemy is merely the calling in of the aid of military forces by the executive, who is charged with the enforcement of the law, with or without special authorization by the legislature. Such declaration of martial law does not suspend the civil law, though it may interfere with the exercise of one's ordinary rights. The right to call out the military forces to maintain order and enforce the law is simply part of the Police power, It is only justified when it reasonably appears necessary, and only justifies such acts as reasonably appear necessarily to meet the exigency, including the arrest, or in extreme cases the. killing of those who create the disorder or oppose the authorities. When the exigency is over the members of the military forces are criminally and civilly habit for acts done beyond the scope of reasonable necessity. When honestly and reasonably coping with a situation of insurrection or riot a member of the military forces cannot be made liable for his acts, and persons reasonably arrested under such circumstances will not, during the insurrection or riot, be free by writ of habeas corpus." ¹¹ When the opinion cited Willoughby's concept of martial law, stress was laid on his being "Partial to the claims of liberty."12 This is evident in the explicit statement from his work quoted by me: "There is, then, strictly speaking, no such thing in American law as a declaration of martial law whereby military law is substituted for civil law. So-called declarations of martial law are, indeed, often made but their legal effect goes no further than to warn citizens that the military powers have been called upon by the executive to assist him in the maintenance of law and order, and that, while the emergency lasts, they must, upon pain of arrest and punishment not commit any acts which will in any way render more difficult the restoration of order and the enforcement of law. Some of the authorities stating substantially this doctrine are quoted in the footnote below Nor did I stop there. The words of Willis were likewise cited: "Martial law proper, that is, military law in case of insurrection, riots, and invasions, is not a substitute for the civil law, but is rather an aid to the execution of civil law. Declarations of martial law go no further than to warn citizens that the executive has called upon the military power to assist him in the maintenance of law and order. While martial law is in force, no new powers are given to the executive and no civil rights of the individual, other than the writ of habeas corpus, are suspended. The relations between the citizen and his stature unchanged."¹⁴

The conclusion reached by me as to the state of American federal law on the question of martial law was expressed thus: 4'1 It is readily evident that even when Milligan supplied the only authoritative doctrine, Burdick and Willoughby did not ignore the primacy of civil liberties. Willis wrote after Sterling. It would indeed be surprising if his opinion were otherwise. After Duncan, such an approach becomes even more strongly fortified. Schwartz, whose treatise is the latest to be published, has this summary of what he considers the present state of American law: 'The Milligan and Duncan cases show plainly that martial law is the public law of necessity. Necessities alone calls it forth, necessity justifies its exercise; and necessities measures the extended degree to which it may be It is, the high Court has affirmed, an unbending rule of law that the exercise of military power, where the rights of the citizen are concerned, may, never be pushed beyond what the exigency requires. If martial law rule survive the necessities on which alone it rests, for even a single minute it becomes a mere exercise of lawless violence.' Further: Sterling v. Constantin is of basic importance. Before it, a number of decisions, including one the highest Court, went or on the theory that the executive had a free hand in taking martial law measures. Under them, it has been widely supposed that in proclamation was so far conclusive that any action taken under it was immune from judicial scrutiny. Sterling v. Constantin definitely discredits these earlier decisions and the doctrine of conclusiveness derived from them. Under Sterling v. Constantin, where martial law measures impinge upon personal or property rights-normally beyond the scope of military power, whose intervention is lawful only because an abnormal Actuation has made it necessary the executive's ipse dixit is not of itself conclusive of the necessity.'"¹⁵

There was likewise an effort on my part to show what for me is the legal effect of martial law being expressly provided for in the Constitution rather than being solely predicated on the common law power based on the urgent need for it because of compelling circumstances incident to the state of actual clash of arms: "It is not to be lost sight of that the basis for the declaration of martial law in the Philippines is not mere necessity but an explicit constitutional provision. On the other hand, Milligan, which furnished the foundation for Sterling and Duncan had its roots in the English common law. There is pertinence therefore in ascertaining its significance under that system. According to the noted English author, Dicey: 'Martial law,' in the proper sense of that term, , in which - it means the suspension of ordinary law and the temporary government of a country or parts of it be military tribunals, is unknown to the law of England. We have nothing equivalent to what is called in France the "Declaration of the State of Siege," under which the authority ordinarily vested in the civil power for the maintenance of order and police passes entirely to the army (autorite militaire). This is an unmistakable proof of the permanent supremacy of the law under our constitution. There was this qualification: 'Martial law is sometimes employed as a name for the common law right of the Crown and its servants to repel force by force in the case of invasion, insurrection, riot, or generally of any violent resistance to the law. This right, or power, is essential to the very existence of orderly government, and is most assuredly recognized in the most ample manner by the law of England. It is a power which has in itself no special connection with the existence of an armed force. The Crown has the right to put down breaches of the peace. Every subject, whether a civilian or a soldier, whether what is called a servant of the government,' such for example as a policeman, or a person in no way connected with the administration, not only has the right, but is, as a matter of legal duty, bound to assist in putting down breaches of the peace. No doubt policemen or soldiers are the persons who, as being specially employed in the maintenance of order, are most generally called upon to suppress a riot, but it is clear that all loyal subjects are bound to take their part in the suppression of riots."¹⁶

Commitment to such an approach results in my inability to subscribe to the belief that martial law in terms of what is provided both in the 1935 and the present Constitution, affords sufficient justification for the concentration of powers in the Executive during periods of crisis. The better view, considering the juristic theory on which our fundamental law rests is that expressed by Justice Black in Duncan v. Kahanamoku: "Legislatures and courts are not merely cherished American institutions; they are indispensable to our government. ¹⁷ If there has been no observance of such a cardinal concept at the present, it is due to the fact that before the former Congress could meet in regular session anew, the present Constitution was adopted, abolishing it and providing for an interim National Assembly, which has not been convened.¹⁸ So I did view the matter.

2. Nor did I ignore Rossiter in my Aquino v. Ponce Enrile opinion. Reference was made to the first chapter on his work on Constitutional Dictatorship where he spoke of martial rule as "a device designed for use in the crisis of invasion or rebellion. It may be most precisely defined as an extension of military government to the civilian population, the substitution of the will of a military commander for the will of the people's elected government."¹⁹ Since, for me at least, the Rossiter characterization of martial law has in it more of the common law connotation, less than duly mindful of the jural effects of its inclusion in the Constitution itself as a legitimate device for coping with emergency conditions in times of grave danger, but always subject to attendant limitations in accordance with the fundamental postulate of a charter's supremacy, I felt justified in concluding: "Happily for the Philippines, the declaration of martial law lends itself to the interpretation that the Burdick, Willoughby, Willis, Schwartz formulations paying due regard to the primacy of liberty possess relevance. lt cannot be said that the martial rule concept of Rossiter, latitudinarian in scope, has been adopted, even on the assumption that it can be reconciled with our Constitution. What is undeniable is that President Marcos has repeatedly maintained that Proclamation No. 1081 was precisely based on the Constitution and that the validity of acts taken there under could be passed upon by the Supreme court. For me that is quite reassuring, persuaded as I am likewise that the week- of Rossiter is opposed to the fundamental concept of our polity, which puts a premium on freedom."²⁰

3. Candor and accuracy compel the admission that such a conclusion his to be qualified. For in the opinion of the Court in the aforecited Aquino v. Commission on Elections, penned by Justice Makasiar, the proposition was expressly affirmed "that as Commander-in-Chief and enforcer or administrator of martial law, the incumbent President of the Philippines can reclamations, orders and decrees during the period 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." ²¹ To that extent, Rossiter's view mainly relied upon, now possesses Juristic significant in this jurisdiction. What, for me at least, gives caused for concern is that with the opinion of the Court this intrusion of what I would consider an alien element in the limited concept of martial law as set forth in the Constitution would be allowed further incursion into the corpus of the law, with the invocation of the view expressed in the last chapter of his work approving tile "concentration of governmental power in a democracy [as] a corrective to the crisis inefficiencies inherent in the doctrine of the separation of powers." ²² It is to the credit of the late Professor Rossiter as an objective scholar that in the very same last chapter, just three pages later, he touched explicitly on the undesirable aspect of a constitutional dictatorship. Thus: "Constitutional Dictatorship is a dangerous thing. A declaration of martial law or the passage of an enabling act is a step which must always be feared and sometimes bitterly resisted, for it is at once an admission of the incapacity of democratic institutions to defend the order within which they function and a too conscious employment of powers and methods long ago outlawed as destructive of constitutional government. Executive legislation, state control of popular liberties, military courts, and arbitrary executive action were governmental features attacked by the men who fought for freedom not because they were inefficient or unsuccessful, but because they were dangerous and oppressive. The reinstitution of any of these features is a perilous matter, a step to be taken only when the dangers to a free state will be greater if the dictatorial institution is not adopted."²³

4. It is by virtue of such considerations that I find myself unable to share the view of those of my brethren who would accord recognition to the Rossiter concept of concentration of governmental power in the Executive during periods of crisis. This is not to lose sight of the undeniable fact that in this country through the zeal, vigor, and energy lavished on projects conducive to the general welfare, considerable progress has been achieved under martial rule. A fair summary may be found in a recent address of the First Lady before the delegates to the 1976 international Monetary Fund-World Bank Joint Annual Meeting: "The wonder is that so much has been done in so brief a time. Since September 1972, when President Marcos established the crisis government, peace and order have been restored in a country once avoided as one of the most unsafe in the world. We have liberated millions of Filipino farmers from the bondage of tenancy, in the most vigorous and extensive implementation of agrarian reform."²⁴ Further, she said: "A dynamic economy has replaced a stagnant order, and its rewards are distributed among the many, not hoarded by a few. Our foreign policy, once confined by fear and suspicion to a narrow alley of self-imposed isolation, now travels the broad expressways of friendship and constructive interaction with the whole world, these in a new spirit of confidence and self-reliance. And finally, forced to work out our own salvation, the Filipino has re-discovered the well-springs of his strength and resilience As Filipinos, we have found our true Identity. And having broken our crisis of Identity, we are no longer apologetic and afraid. "25 The very Idea of a crisis, however, signifies a transitory, certainly not a permanent, state of things. President Marcos accordingly has not been hesitant in giving utterance to his conviction that full implementation of the modified parliamentary system under the present Constitution should not be further delayed. The full restoration of civilian rule can thus be expected. That is more in accord with the imperatives of a constitutional order. It should not go unnoticed either that the President has referred to the present regime as one of "constitutional authoritarianism." That has a less objectionable ring, authority being more Identified with the Idea of law, as based on right, the very antithesis of naked force, which to the popular mind is associated with dictatorship, even if referred to as "constitutional."

For me likewise, that equally eminent scholar Corwin, also invoked in the opinion of the Court, while no doubt a partisan of d strong Presidency, was not averse to constitutional restraints even during periods of crisis. So I would interpret this excerpt from the fourth edition of his classic treatise on the Presidency: "A regime of martial law may be compendiously, if not altogether accurately, defined as one in which the ordinary law, as administered by the ordinary courts, is superseded for the time being by the will of a military commander. It follows that, when martial law is instituted under national authority, it rests ultimately on the will of the President of the United States in his capacity as Commander-in-Chief. It should be added at once, nevertheless, that the subject is one in which the record of actual practice fails often to support the niceties of theory. Thus, the employment of the military arm in the enforcement of the civil law does not invariably, or even usually, involve martial law in the strict sense, for, as was noted in the preceding section, soldiers are often placed simply at the disposal and direction of the civil authorities as a kind of supplementary police, or posse comitatus on the other hand be reason of the discretion that the civil authorities themselves are apt to vest in the military in any emergency requiring its assistance, the line between such an employment of the military and a regime of martial law is frequently any but a hard and fast one. And partly because of these ambiguities the conception itself of martial law today bifurcates into two conceptions, one of which shades off into military government and the other into the situation just described, in which the civil authority remains theoretically in control although dependent on military aid. Finally, there is the situation that obtained throughout the North during the Civil War, when the privilege of the writ of habeas corpus was suspended as to certain classes of suspects, although other characteristics of martial law were generally absent."²⁶

It is by virtue of the above considerations that, with due respect to the opinion of my brethren, I cannot yield assent to the Rossiter view of concentration of governmental powers in the Executive during martial law.

5 There is necessity then, for me at least, that the specific question raised in all three petitions be squarely faced. It is to the credit of the opinion of the Court that it did so. The basic issue posed concerns the boundaries of the power of the President during this period of martial law, more precisely whether it covers proposing amendments to the Constitution. There is the further qualification if the stand of respondents be taken into account that the interim National Assembly has not been convened and is not likely to be called into session in deference to the wishes of the people as expressed in three previous referenda. It is the ruling of the majority that the answer be in the affirmative, such authority being well within the area of presidential competence. Again I find myself unable to join readily in that conviction. It does seem to me that the metes and bounds of the executive domain, while still recognizable, do appear blurred. This is not to assert that there is absolutely no basis for such a conclusion, sustained as it is by a liberal construction of the principle that underlies Aquino v. Commission on Elections as to the validity of the exercise of the legislative prerogative by the President as long as the interim National Assembly is not For me, the stage of certitude has not been reached. I cannot simply ignore the vigorous plea of petitioners that there is a constitutional deficiency consisting in the absence of any constituent power on the part of the President, the express provision of the Constitution conferring it on the by team National Assembly.²⁷ The learned advocacy reflected in the pleadings as well as the oral discourse of Solicitor General Estelito P. Mendoza 21 failed to erase the grave doubts in my mind that the Aquino doctrine as to the possession of legislative competence by the President during this period of transition with the interim lawmaking body not called into session be thus expanded. The majority of my brethren took that step. I am not prepared to go that far. I will explain why.

The way for me, is beset with obstacles. In the first place, such an approach would lose sight of the distinction between matters legislative and constituent. That is implicit in the treatise on the 1935 Constitution by Justices Malcolm and Laurel In their casebook published the same year, one of the four decisions on the subject of constitutional amendments is Ellingham v. Dye 31 which categorically distinguished between constituent and legislative powers. Dean Sinco, a well-known authority on the subject, was quite explicit. Thus: "If there had been no express provision in the Constitution granting Congress the power to propose amendments, it would be outside its authority to assume that power. Congress may not claim it under the general grant of legislative power for such grant does not carry with it the right 'to erect the state, institute the form of its government,' which is considered a function inherent in the people. Congressional law- making authority is limited to the power of approving the laws 'of civil conduct relating to the details and particulars of the government instituted,' the government established by the people."12 If that distinction be preserved, then for me the aforecited Aquino decision does not reach the heart of the matter. Nor is this all. In the main opinion of Justice Makasiar as well as that of the then Justice, now Chief Justice, Castro, support for the ruling that the President cannot be deemed as devoid of legislative power during this transition stage is supplied by implications from explicit constitutional provisions.¹³ That is not the case with the power to propose amendments. It is solely the interim National Assembly that is mentioned. That is the barrier that for me is well-nigh insurmountable. If I limit myself to entertaining doubts rather than registering a dissent on this point, it is solely because of the consideration, possessed of weight and significance, that there may be indeed in this far-from-quiescent and static period a need for al. amendments. I do not feel confident therefore that a negative vote on my part would be warranted. What would justify the step taken by the President, even if no complete acceptance be accorded to the view that he was a mere conduit of the barangays on this matter, is that as noted in both qualified concurrences by Justices Teehankee and Munoz Palma in Aquino, as far as the legislative and appropriately powers are concerned, is the necessity that unless such authority be recognized, there may be paralyzation of governmental activities, While not squarely applicable, such an approach has, to my mind, a persuasive quality as far as the power to propose amendments is concerned.

Thus I would confine myself to the expression of serious doubts on the question rather than a dissent.

6. The constitutional issue posed as thus viewed leaves me free to concur in the result that the petitions be dismissed. That is to accord respect to the principle that judicial review goes no further than to checking clear infractions of the fundamental law, except in the field of human rights where a much greater vigilance is required, That is to make of the Constitution a pathway to rather than a barrier against a desirable objective. -As shown by my concurring and dissenting opinion in Tolentino Commission on Elections '34 a pre-martial law decision, the fundamental postulate that sovereignty resides in the people exerts a compelling force requiring the judiciary to refrain as much as possible from denying the people the opportunity to make known their wishes on matters of the utmost import for the life of the nation, Constitutional amendments fall in that category. I am fortified in that conviction by the teaching of persuasive American decisions There is reinforcement to such a conclusion from retired Chief Justice Concepcion's concurring and dissenting opinion in Aytona v. Castillo,17 Which I consider applicable to the present situation. These are his words: "It is well settled that the granting of writs of prohibition and mandamus is ordinarily within the sound discretion of the courts, to be exercised on equitable principles, and that said writs should be issued when the right to the relief is clear * * by As he noted in his ponencia in the later case of Gonzales v. Hechanova,19 an action for prohibition, while petitioner was sustained in his stand, no injunction was issued. This was evident in the dispositive portion where judgment was rendered "declaring that respondent Executive Secretary had and has no power to authorize the importation in question; that he exceeded his jurisdiction in granting said authority; that said importation is not sanctioned by law and is contrary to its provisions; and that, for lack of the requisite majority, the injunction prayed for must be and is, accordingly, denied." ⁴⁰ With the illumination thus supplied, it does not necessarily follow that even a dissent on my part would necessarily compel that I vote for the relief prayed for. Certainly this is not to belittle in any way the action taken by petitioners in filing these suits. That, for me, is commendable. It attests to their belief in the rule of law. Even if their contention as to lack of presidential power be accepted in their entirety, however, there is still discretion that may be exercised on the matter, prohibition being an equitable remedy. There are, for me, potent considerations that argue against acceding to the plea. With the prospect of the interim National Assembly being convened being dim, if not non- existent, if only because of the results in three previous referenda, there would be no constitutional agency other than the Executive who could propose amendments, which, as noted. may urgently press for adoption. Of even greater weight, to my mind, is the pronouncement by the President that the plebiscite is intended not only to solve a constitutional anomaly with the country devoid of a legislative body but also to provide. the machinery be which the termination of martial law could be hastened. That is a consummation devoutly to be wished. That does militate strongly against the stand of petitioners. The obstruction they would pose may be fraught with pernicious consequences. It may not be amiss to refer anew to what I deem the cardinal character of the jural postulate explicitly affirmed in both the 1935 and the present Constitutions that sovereignty resides in the people. So I made clear in Tolentino v. Commission on Elections and thereafter in my dissent in Javellana v. The Executive Secretary" and my concurrence in Aquino v. Commission on Elections. 42 The destiny of the country lies in their keeping. The role of leadership is not to be minimized. It is crucial it is of the essence. Nonetheless, it is their will, if given expression in a manner sanctioned by law and with due care that there be no mistake in its appraisal, that should be controlling. There is all the more reason then to encourage their participation in the power process. That is to make the regime truly democratic. Constitutional orthodoxy requires, however, that the fundamental law be followed. So I would interpret Laski, ⁴³ Corwin, ⁴⁴ Lerner,⁴⁵, Bryn-Jones, ⁴⁶ and McIver.47

7. There is reassurance in the thought that this Court has affirmed its commitment to the principle that the amending process gives rise to a justiciable rather than a political question. So, it has been since the leading case of Gonzales v. Commission on Election S.⁴⁸ It has since then been followed in Tolentino v. Commission on Elections ⁴⁹ Planas v. Commission on Elections," and lastly, in Javellana v. The Executive Secretary This Court did not heed the vigorous plea of the Solicitor General to resurrect the political question doctrine announced in Mabanag v. Lopez Vito. ⁵² This is not to deny that the federal rule in the United States as set forth in the leading case of Coleman v. Miller , ⁵³ a 1939 decision, and relatively recent State court decisions, supply ammunition to such a contention.,⁵¹ That may be the case in the United States, but certainly not in this jurisdiction. Philippine constitutional tradition is to the contrary. It can trace its origin to these words in the valedictory address before the 1934-35 Constitutional Convention by the illustrious Claro M. Recto: "It is one of the paradoxes a democracy that the people of times place more confidence in instrumentalities of the State other than those directly chosen by them for the exercise of their sovereignty It can be said with truth, therefore, that there has invariably been a judicial predisposition to activism rather than self-restraint. The thinking all these years has been that it goes to the heart of constitutionalism. It may be said that this Court has shunned the role of a mere interpreter; it did exercise at times creative power. It has to that extent participated in the molding of policy, It has always recognized that in the large and undefined field of constitutional law, adjudication partakes of the quality of statecraft. The assumption has been that just because it cannot by itself guarantee the formation, much less the perpetuation of democratic values or, realistically, it cannot prevail against the pressure of political forces if they are bent in other directions. it does not follow that it should not contribute its thinking to the extent that it can. It has been asked, it will continue to be asked, to decide momentous questions at each critical stage of this nation's life.

There must be, however, this caveat. Judicial activism gives rise to difficulties in an era of transformation and change. A society in flux calls for dynamism in "he law, which must be responsive to the social forces at work. It cannot remain static. It must be sensitive to life. This Court then must avoid the rigidity of legal Ideas. It must resist the temptation of allowing in the wasteland of meaningless abstractions. It must face stubborn reality. It has to have a feel for the complexities of the times. This is not to discount the risk that it may be swept too far and too fast in the surge of novel concepts. The past too is entitled to a hearing; it cannot just be summarily ignored. History still has its uses. It is not for this Court to renounce the virtue of systematic jural consistency. It cannot simply yield to the sovereign sway of the accomplished fact. It must be deaf to the dissonant dialectic of what appears to be a splintered society. It should strive to be a factor for unity under a rule of law. There must be, on its part, awareness of the truth that a new juridical age born before its appointed time may be the cause of unprecedented travail that may not end at birth. It is by virtue of such considerations that I did strive for a confluence of principle and practicality. I must confess that I did approach the matter with some misgivings and certainly without any illusion of omniscience. I am comforted by the thought that immortality does not inhere in judicial opinions. 8. 1 am thus led by my studies on the subject of constitutional law and, much more so, by previous judicial opinions to concur in the dismissal of the petitions. If I gave expression to byes not currently fashionable, it is solely due to deeply-ingrained beliefs. Certainly, I am the first to recognize the worth of' the social and economic reforms so needed by the troubled present that have been introduced and implemented. There is no thought then of minimizing, much less of refusing to concede, the considerable progress that has been made and the benefits that have been achieved under this Administration. Again, to reiterate one of my cherished convictions, I certainly approve of the adherence to the fundamental principle of popular sovereignty which, to be meaningful however, requires both freedom in its manifestation and accuracy in ascertaining what it wills. Then, too, it is fitting and proper that a distinction was made between two aspects of the coming poll, the referendum and the plebiscite. It is only the latter that is impressed with authoritative force. So the Constitution requires. Lastly, there should be, as I did mention in my concurrence in Aquino v. Commission on Elections,56 full respect for free speech and press, free assembly and free association. There should be no thought of branding the opposition as the enemy and the expression of its views as anathema, Dissent, it is fortunate to note, has been encouraged. It has not been Identified with disloyalty. That ought to be the case, and not solely due to presidential decrees. Constructive criticism is to be welcomed not so much because of the right to be heard but because there may be something worth hearing. That is to ensure a true ferment of 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 free.

TEEHANKEE, J., dissenting:

1. On the merits: I dissent from the majority's dismissal of the petitions for lack of merit and vote to grant the petitions for the following reasons and considerations: 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, be a three-fourths vote of all its members, to propose amendments or call a constitutional convention for the purpose 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 expressing vest the constituent power during the period of transition in the interim National Assembly "upon special call be the Prime Minister (the incumbent President 3)... by a majority ore of all its members (to) propose amendments."

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 President's questioned decrease 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 vs. 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 people's 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 "dealing with the procedure or manner of amending the fundamental law are binding upon the Convention and the other departments of the government, (land) are no less binding upon the people

As long as an 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 amendments 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, bu a majority vote of all its members that may propose the amendments, the Court must declare the amendments 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 convention 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 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."

This same apprehension was echoed by now retired Justice Calixto O. Zaldivar in his dissenting opinion in the Ratification cases ¹⁴ that "we will be opening the gates for a similar disregard to the Constitution in the future. What I mean is that if this Court now declares that a new Constitution is now in force because the members of the citizens assemblies had approved said new Constitution, although that approval was not in accordance with the procedure and the requirements prescribed in the 1935 Constitution, it can happen again in some future time that some amendments to the Constitution may be adopted, even in a manner contrary to the existing Constitution and the law, and then said proposed amendments is submitted to the people in any manner and what will matter is that a basis is claimed that there was approval by the people. There will not be stability in our constitutional system, and necessarily no stability in our government."

6. It is not legally tenable for the majority, without overruling the controlling precedent of Tolentino (and without mustering the required majority vote to so overrule) to accept the proposed; amendments as valid notwithstanding their being "not in conformity with the letter, spirit and intent of the provision of the Charter for effecting amendments" on the reasoning that "If the President has been legitimately discharging the legislative functions of the interim National Assembly, there is no reason why he cannot validly discharge the functions."15

In the earlier leading case of Gonzales vs. Comelec¹⁶, this Court speaking through now retired Chief Justice Roberto Concepcion, pointer out that "Indeed, the power to Congress"¹⁷ or to the National Assembly.18 Where it not for the express grant in the Transitory Provisions of the constituent power to the interim National Assembly, the interim National Assembly could not claim the power under the general grant of legislative power during the transition period.

The majority's ruling in the Referendum cases¹⁹ that the Transitory Provision in section 3(2) recognized the existence of the authority to legislate in favor of the incumbent President during the period of martial law manifestly cannot be stretched to encompass the constituent power as expressly vested in the interim National Assembly in derogation of the allotment of powers defined in the Constitution.

Paraphrasing Cooley on the non-delegation of legislative power as one of the settled maxims of constitutional law, ²⁰ the contituent power has been lodged by the sovereign power of the people with the interim National Assembly during the transition period and there it must remain as the sole constitutional agency until the Constitution itself is changed.

As was aptly stated by Justice Jose P. Laurel in the 1936 landmak case of Angara vs. Electoral Commissioner²¹, "(T)he Constitution sets forth in no uncertain language and restrictions and limitations upon governmental powers and agencies. If these restrictions and limitations are transcended it would be inconceivable if the Constitution had not provided for a mechanism by which to direct the course of government along constitutional channels, for then the distribution of powers sentiment, and the principles of good government mere political apothegms. Certainly, the limitations and restrictions embodied in our Constitution are real as they should be in any living Constitution".

7. Neither is the justification of "constitutional impasses" tenable. The sentiment of the people against the convening of the interim National Assembly and to have no elections for "at least seven (7) years" Concededly could not ament the Constitution insofar as the interim National Assembly is concerned (since it admittendly came into existence "immediately" upon the proclamation of ratification of the 1973 Constitution), much less remove the constituent power from said interim National Assembly.

As stressed in the writer's separate opinion in the Referendum cases²², "(W)hile it has been advanced that the decision to defer the initial convocation of the interim National Assembly was supported by the results of the referendum in January, 1973 when the people voted against the convening of the interim National Assembly for at least seven years, such sentiment cannot be given any legal force and effect in the light of the State's admission at the hearing that such referendums are merely consultative and cannot amend the Constitution or Provisions which call for the 'immediate existence' and 'initial convening of the interim National Assembly to 'give priority to measures for the orderly transition from the presidential to the parliamentary system' and the other urgent measures enumerated in section 5 thereof".

While the people reportedly expressed their mandate against the convening of the interim National Assembly to dischange its legislative tasks during the period of transition under martial law, they certainly had no opportunity and did not express themselves against convening the interim National Assembly to discharge the constituent power to propose amendments likewise vested in it by the people's mandate in the Constitution.

In point of fact, when the holding of the October 16, 1976 referendum was first announced, the newspapers reported that among the seven questions proposed by the sanggunian and barangay national executive committies for the referendum was the convening of the interim National Assembly.²³

It was further reported that the proposals which were termed tentative "will be discussed and studied by (the President), the members of the cabinet, and the security council" and that the barangays felt, notwithstanding the previous referenda on the convening of the interim National Assembly that "it is time to again ask the people's opinion of this matter "²⁴

8. If proposals for constitutional amendments are now deemed necessary to be discussed and adopted for submittal to the people, strict adherence with the mandatory requirements of the amending process as provided in the Constitution must be complied with. This means, under the teaching of Tolentino that the proposed amendments must validly come from the constitutional agency vested with the constituent power to do so, namely, the interim National Assembly, and not from the executive power as vested in the Prime Minister (the incumbent President) with the assistance of the Cabinet ²⁵ from whom such power has been withheld.

It will not do to contend that these proposals represent the voice of the people for as was aptly stated by Cooley "Me voice of the people, acting in their sovereign capacity, can be of legal force only when expressed at the times and under the conditions which they themselves have prescribed and pointed out by the Constitution. ... ."26

The same argument was put forward and rejected by this Court in Tolentino which rejected the contention that the "Convention being a legislative body of the highest order (and directly elected by the people to speak their voice) is sovereign, in as such, its acts impugned by petitioner are beyond the control of Congress and the Courts" and ruled that the constitutional article on the amending process" is nothing more than a part of the Constitution thus ordained by the people. Hence, in continuing said section, We must read it as if the people said, "The Constitution may be amended, but it is our will that the amendment must be proposed and submitted to Us for ratification only in the manner herein provided'".²⁷

This Court therein stressed that "This must be so, because it is plain to Us that the framers of the Constitution took care that the process of amending the same should not be undertaken with the same ease and facility in changing an ordinary legislation. Constitution making is the most valued power, second to none, of the people in a constitutional democracy such as the one our founding fathers have chosen for this nation, and which we of the succeeding generations generally cherish. And because the Constitution affects the lives, fortunes, future and every other conceivable aspect of the lives of all the people within the country and those subject to its sovereignity, ever constitution worthy of the people for which it is intended must not be prepared in haste without adequate deliberation and study. It is obvious that correspondingly, any amendment of the Constitution is of no less importance than the whole Constitution itself, and perforce must be conceived and prepared with as much care and deliberation;" and that "written constitutions are supposed to be designed so as to last for some time, if not for ages, or for, at least, as long as they can be adopted to the needs and exigencies of the people, hence, they must be insulated against precipitate and hasty actions motivated by more or less passing political moods or fancies. Thus, as a rule, the original constitutions carry with them limitations and conditions, more or less stringent, made so by the people themselves, in regard to the process of their amendment."²⁸

9. The convening of the interim National Assembly to exercise the constituent power to proposed amendments is the only way to fulfill the express mandate of the Constitution.

As Mr. Justice Fernando emphasized for this Court in Mutuc vs. Comelec ²⁹ in the setting as in of a Comelec resolution banning the use of political taped jingles by candidates for Constitutional Convention delegates int he special 1970 elections, "the concept of the Constitution as the fundamental law, setting forth the criterion for the validity of any public act whether proceeding from the highest official or the lowest functionary, is a postulate of our system of government. That is to amnifst fealty to the rule of law, with priority accorded to that which occupies the topmost rung in the legal heirarchy. The three departments of government in the discharge of the functions with which it is entrusted have no choice but to yield obedience to its commands. Whatever limits it imposes must be observed. Congress in the enactment of statutes must ever be on guart lest the restrictions on its authority, whether substantive or formal, be transcended. The Presidency in the execution of the laws cannot ignore of disregard what it ordains. In its task of applying the law to the facts as found in deciding cases, the judiciary is called upon the maintain inviolate what is decreed by the fundamental law."

This is but to give meaning to the plan and clear mandate of section 15 of the Transitory Provisions (which allows of no other interpretation) that during the stage of transition the interim National Assembly alone exercises the constituent power to propose amendments, upon special call therefor. This is reinforced by the fact that the cited section does not grant to the regular National Assembly of calling a constitutional convention, thus expressing the will of the Convention (and presumably of the people upon ratification) that if ever the need to propose amendments arose during the limited period of transition, the interim National Assembly alone would discharge the task and no constitutional convention could be call for the purpose.

As to the alleged costs involved in convening the interim National Assembly to propose amendments, among them its own abolition, (P24 million annually in salaries alone for its 400 members at P600,000.00 per annum per member, assuming that its deliberations could last for one year), suffice it to recall this Court's pronouncement in Tolentino (in reflecting a similar argument on the costs of holding a plebiscite separately from the general elections for elective officials) that "it is a matter of public knowledge that bigger amounts have been spent or thrown to waste for many lesser objectives. ... Surely, the amount of seventeen million pesos or even more is not too much a price to pay for fealty and loyalty to the Constitution ... " ³⁰ and that "while the financial costs of a separate plebiscite may be high, it can never be as much as the dangers involved in disregarding clear mandate of the Constitution, no matter how laudable the objective" and "no consideration of financial costs shall deter Us from adherence to the requirements of the Constitution".11

10. The imposition of martial law (and "the problems of rebellion, subversion, secession, recession, inflation and economic crisis a crisis greater than war") ³² cited by the majority opinion as justifying the concentration of powers in the President, and the recognition now of his exercising the constituent power to propose amendments to the Fundamental Law "as agent for and in behalf of the people"³³ has no constitutional basis.

In the post-war Emergency Powers ³³*, former Chief Justice Ricardo Paras reaffirmed for the Court the principle that emergency in itself cannot and should not create power. In our democracy the hope and survival of the nation lie in the wisdom and unselfish patriotism of all officials and in their faithful 'Adherence to the Constitution".

The martial law clause of the 1973 Constitution found in Article IX, section ¹² , as stressed by the writer in his separate opinion in the Referendum Cases,14 "is a verbatim reproduction of Article VII, section 10 (2) of the 1935 Constitution and provides for the imposition of martial law only 'in case of invasion, resurrection or rebellion, or imminent danger thereof, when the public safety requires it and hence the use of the legislative power or more accurately 'military power' under martial rule is limited to such necessary measures as will safeguard the Republic and suppress the rebellion (or invasion)". ³⁵

11. Article XVII, section 3 (2) of the 1973 Constitution which has been held by the majority in the Referendum Cases to be the recognition or warrant for the exercise of legislative power by the President during the period of martial law is but a transitory provision. Together with the martial law clause, they constitute but two provisions which are not to be considered in isolation from the Constitution but as mere integral parts thereof which must be harmonized consistently with the entire Constitution.

As Cooley restated the rule: "effect is to be given, if possible, to the whole instrument, and to every section and clause. If different portions seem to conflict, the courts must harmonize them, if practicable, and must lean in favor of a construction which will render every word operative, rather than one which may make some words Idle and nugatory.

This rule is applicable with special force to written constitutions, in which the people will be presumed to have expressed themselves in careful and measured terms, corresponding with the immense importance of the powers delegated, leaving as little as possible to implication. It is scarcelly conceivable that a case can arise where a court would bye justified in declaring any portion of a written constitution nugatory because of ambiguity. One part may qualify another so as to restrict its operation, or apply it otherwise than the natural construction would require if it stood by itself; but one part is not to be allowed to defeat another, if by any reasonable construction the two can be made to stand together. ³⁶

The transcendental constituent power to propose and approve amendments to the Constitution as well as set up the machinery and prescribe the procedure for the ratification of his proposals has been withheld from the President (Prime Minister) as sole repository of the Executive Power, presumably in view of the immense powers already vested in him by the Constitution but just as importantly, because by the very nature of the constituent power, such amendments proposals have to be prepared, deliberated and matured by a deliberative assembly of representatives such as the interim National Assembly and hence may not be antithetically entrusted to one man.

Former Chief Justice Roberto Concepcion had observed before the elevation of the l971 Constitutional Convention that the records of past plebiscites show that the constitutional agency vested with the exercise of the constituent power (Congress or the Constitutional Convention) really determined the amendments to the Constitution since the proposals were invariably ratified by the people ³⁷ thus: "although the people have the reserved power to ratify or reject the action taken by the Convention, such power is not, in view of the circumstances attending its exercise, as effective as one might otherwise think: that, despite the requisite ratification by the people, the actual contents of our fundamental law will really be determined by the Convention; that, accordingly the people should exercise the greatest possible degree of circumspection in the election of delegates thereto ... "³⁸

12. Martial law concededly does not abrogate the Constitution nor obliterate its constitutional boundaries and allocation of powers among the Executive, Legislative and Judicial Departments. ³⁹

It has thus been aptly observed that "Martial law is an emergency regime, authorized by and subject to the Constitution. Its basic premise is to preserve and to maintain the Republic against the dangers that threaten it. Such premise imposes constraints and limitations. For the martial law regime fulfills the constitutional purpose only if, by reason of martial law measures, the Republic is preserved. If by reason of such measures the Republic is so transformed that it is changed in its nature and becomes a State other than republican, then martial law is a failure; worse, martial law would have become the enemy of the Republic rather than its defender and preserver."⁴⁰

II. On the question of the Court's jurisdiction to pass upon the constitutionality of the questioned presidential decrees: let it be underscored that the Court has long set at rest the question.

The trail was blazed for the Court since the benchmark case of Angara vs. Electoral Commission when Justice Jose P. Laurel echoed U.S. Chief Justice Marshall's "climactic phrase" that "we must never forget that it is a Constitution we are expounding" and declared the Court's "solemn and sacred" constitutional obligation of judicial review and laid down the doctrine that the Philippine Constitution as "a definition of the powers of government" placed upon the judiciary the great burden of "determining the nature, scope and extent of such powers" and stressed that "when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments . . . but only asserts the solemn and sacred obliteration entrusted to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which the instrument secures and guarantees to them".

At the same time, the Court likewise adhered to the constitutional tenet that political questions, i.e. questions which are intended by the Constitutional and relevant laws to be conclusively determined by the "political", i.e. branches of government (namely, the Executive and the Legislative) are outside the Court's jurisdiction. ⁴¹

Thus, in Gonzales,⁴² (by a unanimous Court) and in Tolentino⁴³ (by the required constitutional majority), the Court has since consistently ruled that when proposing and approving amendments to the Constitution, the members of Congress. acting as a constituent assembly or the members of the Constitutional Convention elected directly for the purpose by not have the final say on whether or not their acts are within or beyond constitutional limits. Otherwise, they could brush aside and set the same at naught, contrary to the basic tenet that outs is it government of lawsom not of men, and to the rigid nature of our Constitution. Such rigidity is stressed by the fact that, the Constitution expressly confers upon the Supreme Court, the power to declare a treaty unconstitutional, despite the eminently political character of treaty-making power".⁴⁴

As amplified by former Chief Justice Concepcion in Javellana vs Executive Secretary ⁴⁵ (by a majority vote), "when the grant of power is qualified, conditional or subject to limitations. the issue on whether or not the prescribed qualifications or conditions have been met, or the limitations by expected, is justiciable or non-political, the crux of the problem being one of legality or validity of the contested act, not its wisdom Otherwise, said qualifications, conditions and limitations-particularly those prescribed or imposed by the Constitution would be set at naught".

The fact that the proposed amendments are to be submitted to the people for ratification by no means makes the question political and non- justiciable since as stressed even in Javellana the issue of validity of the President's proclamation of ratification of the Constitution presented a justiciable and non-political question

Stated otherwise, the question of whether the Legislative acting as a constituent assembly or the Constitutional Convention called fol- the purpose, in proposing amendments to the people for ratification followed the constitutional procedure and on the amending process is perforce a justiciable question and does not raise a political question of police or wisdom of the proposed amendments, which if Submitted, are reserved for the people's decision.

The substantive question presented in the case at bar of whether the President may legally exercise the constituent power vested in the interim National Assembly (which has not been granted to his office) and propose constitutional amendments is preeminently a justiciable issue.

Justice Laurel in Angara had duly enjoined that "in times of social disquietude or political excitement, the great landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial department is the only constitutional organ which can be called upon to determine the proper allocation of powers between the several departments and among the integral or constituent units thereof".

To follow the easy way out by disclaiming jurisdiction over the issue as a political question would be judicial abdication.

III. On the question of whether there is a sufficient and proper submittal of the proposed amendments to the people: Prescinding from the writer's view of the nullity of the questioned decree of lack of authority on the President's part to excercise the constituent power, I hold that the doctrine of fair and proper submission first enunciated by a simple majority of by Justices in Gonzales and subsequently officially adopted by the required constitutional two-thirds majority of the Court in is controlling in the case at bar.

1. There cannot be said to be fair and proper submission of the proposed amendments. As ruled by this Court in Tolentino where "the proposed amendment in question is expressly saddled with reservations which naturally impair, in great measures, its very essence as a proposed constitutional amendment" and where "the way the proposal is worded, read together with the reservations tacked to it by the Convention thru Section 3 of the questioned resolution, it is too much of a speculation to assume what exactly the amendment would really amount lo in the end. All in all, as already pointed out in our discussion of movants' first ground, if this kind of amendment is allowed, the Philippines will appear before the world to be in the absurd position of being the only country with a constitution containing a provision so ephemeral no one knows until when it will bet actually in force", there can be no proper submission.

In Tolentino a solitary amendment reducing the voting age to 18 years was struck down by this Court which ruled that "in order that a plebiscite for the ratification of an amendment to the Constitution may be validly held, it must provide the voter not only sufficient time but ample basis for an intelligent appraisal of the nature of the amendment per se as well as its relation to the other parts of the Constitution with which it has to form a harmonious whole," and that there was no proper Submission wherein the people are in the dark as to frame of reference they can base their judgment on

2. The now Chief Justice and Mr. Justice Makasiar with two other members 46 graphically pointed out in their joint separate opinion that the solitary question "would seem to be uncomplicated and innocuous. But it is one of life's verities that things which appear to be simple may turn out not to be so simple after all".⁴⁷

They further expressed "essential agreement" with Mr. Justice Conrado V. Sanchez' separate opinion in Gonzales "on the minimum requirements that must be met in order that there can be a proper submission to the people of a proposed constitutional amendment" which reads thus:

... we take the view that the words 'submitted to the people for their ratification', if construed in the light of the nature of the Constitution a fundamental charter that is legislation direct from the people, an expression of their sovereign will - is that it can only be amended by the people expressing themselves according to the procedure ordained by the Constitution. Therefore, amendments must be fairly laid before the people for their blessing or spurning. The people are not to be mere rubber stamps. They are not to vote blindly. They must be afforded ample opportunity to mull over the original provisions, compare them with the proposed amendments, and try to reach a conclusion as the dictates of their conscience suggest, free from the incubus of extraneous or possibly insidious influences. We believe the word submitted' can only mean that the government, within its maximum capabilities, should strain every effort to inform every citizen of the provisions to be amended, and the proposed amendments and the meaning, nature and effects thereof. By this, we are not to be understood as saying that, if one citizen or 100 citizens or 1,000 citizens cannot be reached, then there is no submission within the meaning of the word as intended by the framers of the Constitution. What the Constitution in effect directs is that the government, in submitting an amendment for ratification, should put every instrumentality or agency within its structural framework to enlighten the people, educate them with respect to their act of ratification or rejection. For, as we have earlier stated, one thing is submission and another is ratification. There must be fair submission, intelligent. consent or rejection. If with all these safeguards the people still approve the amendment no matter how prejudicial it is to them, then so be it. For the people decree their own fate.⁴⁸

Justice Sanchez therein ended the passage with an apt citation that " ... " The great men who builded the structure of our state in this respect had the mental vision of a good Constitution voiced by Judge Cooley, who has said 'A good Constitution should be beyond the reach of temporary excitement and. popular caprice or passion. It is needed for stability and steadiness; it must yield to the thought of the people; not to the whim of the people, or the thought evolved in excitement or hot blood, but the sober second thought, which alone, if the government is to be safe, can be allowed efficiency. xxx xxx xxx Changes in government are to be feared unless the benefit is certain. As Montaign says: All great mutations shake and disorder state. Good does not necessarily succeed evil ;another evil may succeed and a worse'." ⁴⁹

Justice Sanchez thus stated the rule that has been adopted by the Court in Tolentino that there is no proper submission "if the people are not sufficiently affirmed of the amendments to be voted upon, to conscientiously deliberate thereon, to express their will in a genuine manner. ... .." ⁵⁰

3. From the complex and complicated proposed amendments set forth in the challenged decree and the plethora of confused and confusing clarifications reported in the daily newspapers, it is manifest that there is no proper submission of the proposed amendments. Nine (9) proposed constitutional amendments were officially proposed and made known as per Presidential Decree No. 1033 dated, September 22, 1976 for submittal at the "referendum-plebiscite" called for this coming Saturday, October 16, 1976 wherein the 15-year and under 18-year- olds are enjoined to vote notwithstanding their lack of qualification under Article VI of the Constitution. Former Senator Arturo Tolentino, an acknowledged parliamentarian of the highest order, was reported by the newspapers last October 3 to have observed that "there is no urgency in approving the proposed amendments to the Constitution and suggested that the question regarding charter changes be modified instead of asking the people to vote on hurriedly prepared amendments". He further pointed out that "apart from lacking the parliamentary style in the body of the Constitution, they do not indicate what particular provisions are being repealed or amended".⁵²

As of this writing, October 11, 1976, the paper today reported his seven-page analysis questioning among others the proposed granting of dual legislative powers to both the President and the Batasang Pambansa and remarking that "This dual legislative authority can give rise to confusion and serious constitutional questions".⁵³

Aside from the inadequacy of the limited time given for the people's consideration of the proposed amendments, there can be no proper submission because the proposed amendments are not in proper form and violate the cardinal rule of amendments of written constitutions that the specific provisions of the Constitution being repealed or amended as well as how the specific provisions as amended would read, should be clearly stated in careful and measured terms. There can be no proper submission because the vagueness and ambiguity of the proposals do not sufficiently inform the people of the amendments for, conscientious deliberation and intelligent consent or rejection.

4. While the press and the Solicitor General at the hearing have stated that the principal thrust of the proposals is to substitute the interim National Assembly with an interim Batasang Pambansa, a serious study thereof in detail would lead to the conclusion that the whole context of the 1973 Constitution proper would be affected and grave amendments and modifications thereof -would apparently be made, among others, as follows:

Under Amendment No. 1, the qualification age of members of the interim Batasang Pambansa is reduced to 18 years;

Under Amendment No. 2, the treaty-concurring power of the Legislature is withheld from the interim Batasang Pambansa;

Under Amendment No 3, not withstanding the convening of the interim Batasang Pambansa within 30 days from the election and selection of the members (for which there is no fixed date) the incumbent President apparently becomes a regular President and Prime Minister (not ad interim);

Under Amendment No. 4, the disqualifications imposed on members of the Cabinet in the Constitution such as the prohibition against the holding of more than one office in the government including government-owned or -controlled corporations would appear to be eliminated, if not prescribed by the President;

Under Amendment No. 5, the President shall continue to exercise legislative powers until martial law is lifted;

Under Amendment No. 6, there is a duality of legislative authority given the President and the interim Batasang Pambansa as well as the regular National Assembly, as pointed out by Senator Tolentino, with the President continuing to exercise legislative powers in case of "grave emergency or a threat or imminence thereof" (without definition of terms) or when said Assemblies "fail or are unable to act adequately on any matter for any reason that in his judgment requires immediate action", thus radically affecting provisions of the Constitution governing the said departments;

Under Amendment No. 7, the barangays and Sanggunians would apparently be constitutionalized, although their functions, power and composition may be altered by law. Referendums (which are not authorized in the present 1973 Constitution) would also be constitutionalized, giving rise to the possibility fraught with grave consequences, as acknowledged at the hearing, that amendments to the Constitution may thereafter be effected by referendum, rather than by the rigid and strict amending process provided presently in Article XVI of the Constitution;

Under Amendment No. 8, there is a general statement in general that the unspecified provisions of the Constitution "not inconsistent with any of these amendments" shall continue in full force and effect; and Under Amendment No. 9. the incumbent President is authorized to proclaim the ratification of the amendments by the majority of votes cast. It has likewise been stressed by the officials concerned that the proposed amendments come in a package and may not be voted upon separately but on an "all or nothing" basis.

5. Whether the people can normally express their will in a genuine manner and with due circumspection on the proposed amendments amidst the constraints of martial law is yet another question. That a period of free debate and discussion has to be declared of itself shows the limitations on free debate and discussion. The facilities for free debate and discussion over the mass media, print and otherwise are wanting. The President himself is reported to have observed the timidity of the media under martial law and to have directed the press to air the views of the opposition.⁵⁴

Indeed, the voice of the studentry as reflected in the editorial of the Philippine Collegian issue of September 23, 1976 comes as a welcome and refreshing model of conscientious deliberation, as our youth analyzes the issues "which will affect generations yet to come" and urge the people to mull over the pros and cons very carefully", as follows:

THE REFERENDUM ISSUES

On October 16, the people may be asked to decide on two important national issues - the creation of a new legislative body and the lifting of martial law.

On the first issue, it is almost sure that the interim National Assembly will not be convened, primarily because of its membership. Majority of the members of the defunct Congress, who are mandated by the Constitution to become members of the interim National Assembly, have gained so widespread a notoriety that the mere mention of Congress conjures the image of a den of thieves who are out to fool the people most of the time. Among the three branches of government, it was the most discredited. In fact, upon the declaration of martial law, some people were heard to mutter that a 'regime that has finally put an end to such congressional shenanigans could not be all that bad'.

A substitute legislative body is contemplated to help the President in promulgating laws, and perhaps minimize the issuance of ill-drafted decrees which necessitate constant amendments. But care should be taken that this new legislative body would not become a mere rubber stamp akin to those of other totalitarian countries. It should be given real powers, otherwise we will just have another nebulous creation having the form but lacking the substance. Already the President has expressed the desire that among the powers he would like to have with regard to the proposed legislative body is that of abolishing it in case 'there is a need to do so'. As to what would occasion such a need, only the President himself can determine. This would afford the Chief Executive almost total power over the legislature, for he could always offer the members thereof a carrot and a stick.

On the matter of lifting martial law the people have expressed ambivalent attitudes. Some of them, remembering the turmoil that prevailed before the declaration of martial law, have expressed the fear that its lifting might precipitate the revival of the abuses of the past, and provide an occasion for evil elements to resurface with their usual tricks. Others say that it is about time martial law was lifted since the peace and order situation has already stabilized and the economy seems to have been parked up.

The regime of martial law has been with us for four years now. No doubt, martial law has initially secured some reforms for the country The people were quite willing to participate in the new experiment, thrilled by the novelty of it all. After the euphoria, however, the people seem to have gone back to the old ways, with the exception that some of our freedoms were taken away, and an authoritarian regime established.

We must bear in mind that martial law was envisioned only to cope with an existing national crisis, It was not meant to be availed of for a long period of time, otherwise it would undermine our adherence to a democratic form of government. In the words of the Constitution. martial law shall only be declared in times of 'rebellion, insurrection,. invasion, or imminent danger thereof, when the public safety requires it'. Since we no longer suffer from internal disturbances of a gargantuan scale, it is about time we seriously rethink the 'necessity' of prolonging the martial law regime. If we justify the continuance of martial by economic or other reasons other than the foregoing constitutional grounds, then our faith in the Constitution might be questioned. Even without martial law,. the incumbent Chief Executive still holds vast powers under the constitution. After all, the gains of the New Society can be secured without sacrificing the freedom of our people. If the converse is true, then we might have to conclude that the Filipinos deserve a dictatorial form of government. The referendum results will show whether the people themselves have adopted this sad conclusion.

The response of the people to the foregoing issues will affect generations yet to come, so they should mull over the pros and cons very carefully."

6. This opinion by written in the same spirit as the President's exhortations on the first anniversary of proclamation of the 1973 Constitution that we "let the Constitution remain firm and stable" so that it may "guide the people", and that we "remain steadfast on the rule of law and the Constitution" as he recalled his rejection of the "exercise (of) power that can be Identified merely with a revolutionary government" that makes its own law, thus:

. . . Whoever he may be and whatever position he may happen to have, whether in government or outside government, it is absolutely necessary now that we look solemnly and perceptively into the Constitution and try to discover for ourselves what our role is in the successful implementation of that Constitution. With this thought, therefore, we can agree on one thing and that is: Let all of us age, let all of us then pass away as a pace in the development of our country. but let the Constitution remain firm and stable and let institutions grow in strength from day to day, from achievement to achievement, and so long as that Constitution stands, whoever may the man in power be, whatever may his purpose be, that Constitution will guide the people and no man, however, powerful he may be, will dare to destroy and wreck the foundation of such a Constitution.

These are the reasons why I personally, having proclaimed martial law, having been often induced to exercise power that can be Identified merely with a revolutionary government, have remained steadfast or the rule of law and the Constitution. ⁵⁴*

IV. A final word on the Court's resolution of October 5, 1976 which in reply to the Comelec query allowed by a vote of 7 to 3, judges of all courts, after office hours, "to accept invitations to act as resource speakers under Section 5 of Presidential Decree No. 991, as amended, as well as to take sides in discussions and debates on the referendum-plebiscite questions under Section 7 of the same Decree."⁵⁵

The writer with Mr. Justice Makasiar and Madame Justice Munoz Palma had dissented from the majority resolution, with all due respect, on the ground that the non-participation of judges in such public discussions and debates on the referendum-plebiscite questions would preserve the traditional non-involvement of the judiciary in public discussions of controversial issues. This is essential for the maintenance and enhancement of the people's faith and confidence in the judiciary. The questions of the validity of the scheduled referendum- plebiscite and of whether there is proper submission of the proposed amendments were precisely subjudice by virtue of the cases at bar.

The lifting of the traditional inhibition of judges from public discussion and debate might blemish the image and independence of the judiciary. Aside from the fact that the fixing of a time limit for the acceptance of their courtesy resignations to avoid an indefinite state of insecurity of their tenure in office still spends litigants and their relatives and friends as well as a good sector of the public would be hesitant to air views contrary to that of the.

Judge. Justices Makasiar and Munoz Palma who share these views have agreed that we make them of record here, since we understand that the permission given in the resolution is nevertheless addressed to the personal decision and conscience of each judge, and these views may he of some guidance to them.

BARREDO, J.,: concurring:

While I am in full agreement with the majority of my brethren that the herein petitions should be dismissed, as in fact I vote for their dismissal, I deem it imperative that I should state separately the considerations that have impelled me to do so.

Perhaps, it is best that I should start by trying to disabuse the minds of those who have doubts as to whether or not I should have taken part in the consideration and resolution of these cases. Indeed, it would not be befitting my position in this Highest Tribunal of the land for me to leave unmentioned the circumstances which have given cause, I presume, for others to feel apprehensive that my participation in these proceedings might detract from that degree of faith in the impartiality that the Court's judgment herein should ordinarily command. In a way, it can be said, of course, that I am the one most responsible for such a rather problematical situation, and it is precisely for this reason that I have decided to begin this opinion with a discussion of why I have not inhibited myself, trusting most confidently that what I have to say will be taken in the same spirit of good faith, sincerity and purity of purpose in which I am resolved to offer the same.

Plain honesty dictates that I should make of record here the pertinent contents of the official report of the Executive Committee of the Katipunan ng mga Sanggunian submitted to the Katipunan itself about the proceedings held on August 14, 1976. It is stated in that public document that:

THE ISSUE WITH REGARDS To THE CONVENING OF A LEGISLATIVE body came out when the President express his desire to share his powers with other people.

Aware of this, a five-man Committee members of the Philippine Constitution Association (PHILCONSA) headed by Supreme Court Justice Antonio Barredo proposed on July 28, the establishment of 'Sangguniang Pambansa' or 'Batasang Pambansa' which would help the President in the performance of his legislative functions. The proposed new body will take the place of the interim National Assembly which is considered not practical to convene at this time considering the constitution of its membership.

Upon learning the proposal of Justice Barredo, the country's 42,000 barangay assemblies on August 1 suggested that the people be consulted on a proposal to create a new legislative body to replace the interim assembly provided for by the Constitution. The suggestion of the barangay units was made through their national association, Pambansang Katipunan ng mga Barangay headed by Mrs. Nora Z. Patines. She said that the people have shown in at least six instances including in the two past referenda that they are against the convening of the interim National Assembly. She also said that since the people had ruled out the calling of such assembly and that they have once proposed that the President create instead the Sangguniang Pambansa or a legislative advisory body, then the proposal to create a new legislative must necessarily be referred to the people.

The federation of Kabataang Barangay, also numbering 42,000 units like their elder counterparts in the Katipunan ng mga Barangay also asserted their own right to be heard on whatever plans are afoot to convene a new legislative body.

On August 6, a meeting of the national directorate of PKB was held to discuss matters pertaining to the stand of the PKB with regards to the convening of a new legislative body. The stand of the PKB is to create a legislative advisory council in place of the old assembly. Two days after, August 8, the Kabataang Barangay held a symposium and made a stand which is the creation of a body with full legislative powers.

A nationwide clamor for the holding of meeting in their respective localities to discuss more intellegently the proposal to create a new legislative body was made by various urban and rural Sangguniang Bayans.

Numerous requests made by some members coming from 75 provincial and 61 city SB assemblies, were forwarded to the Department of Local Government and Community Development (DLGCD).

On August 7, Local Government Secretary, Jose A. Rono granted the request by convening the 91 member National Executive Committee of the Pambansang Katipunan ng mga Sanggunian on August 14 which was held at Session Hall, Quezon City. Invited also to participate were 13 Regional Federation Presidents each coming from the PKB and the PKKB

Actually, the extent of my active participation in the events and deliberations that have culminated in the holding of the proposed referendum- plebiscite on October 16, 1976, which petitioners are here seeking to enjoin, has been more substantial and meaningful than the above report imparts. Most importantly, aside from being probably the first person to publicly articulate the need for the creation of an interim legislative body to take the place of. the interim National Assembly provided for in the Transitory Provisions of the Constitution, as suggested in the above report, I might say that I was the one most vehement and persistent in publicly advocating and urging the authorities concerned to directly submit to the people in a plebiscite whatever amendments of the Constitution might be considered necessary for the establishment of such substitute interim legislature. In the aforementioned session of the Executive Committee of the Katipunan, I discourse on the indispensability of a new interim legislative body as the initial step towards the early lifting of martial law and on the fundamental considerations why in our present situation a constitutional convention would be superfluous in amending the Constitution.

Moreover, it is a matter of public knowledge that in a speech I delivered at the Coral Ballroom of the Hilton Hotel in the evening of August 17, 1976, I denounced in no uncertain terms the plan to call a constitutional convention. I reiterated the same views on September 7, 1976 at the initial conference called by the Comelec in the course of the information and educational campaign it was enjoined to conduct on the subject. And looking back at the subsequent developments up to September 22, 1976, when the Batasang Bayan approved and the President signed the now impugned Presidential Decree No. 1033, it is but human for me to want to believe that to a certain extent my strong criticisms and resolute stand against any other alternative procedure of amending the Constitution for the purpose intended had borne fruit.

I must hasten to add at this point, however, that in a larger sense, the initiative for all I have done, was not altogether mine alone. The truth of the matter is that throughout the four years of this martial law government, it has always been my faith, as a result of casual and occasional exchanges of thought with President Marcos, that when the appropriate time does come, the President would somehow make it known that in his judgment, the situation has already so improved as to permit the implementation, if gradual, of the constitutionally envisioned evolution of our government from its present state to a parliamentary one. Naturally, this would inevitably involve the establishment of a legislative body to replace the abortive interim National Assembly. I have kept tract of all the public and private pronouncements of the President, and it was the result of my reading thereof that furnished the immediate basis for my virtually precipitating, in one way or another, the materialization of the forthcoming referendum-plebiscite. In other words, in the final analysis, it was the President's own attitude on the matter that made it opportune for me to articulate my own feelings and Ideas as to how the nation can move meaningfully towards normalization and to publicly raise the issues that have been ventilated by the parties in the instant cases.

I would not be human, if I did not consider myself privileged in having been afforded by Divine Providence the opportunity to contribute a modest share in the formulation of the steps that should lead ultimately to the lifting of martial law in our country. Indeed, I am certain every true Filipino is anxiously looking forward to that eventuality. And if for having voiced the sentiments of our people, where others would have preferred to be comfortably silent, and if for having made public what every Filipino must have been feeling in his heart all these years, I should be singled out as entertaining such preconceived opinions regarding the issues before the Court in the cases at bar as to preclude me from taking part in their disposition, I can only say that I do not believe there is any other Filipino in and out of the Court today who is not equally situated as I am .

The matters that concern the Court in the instant petitions do not involve merely the individual interests of any single person or group of persons. Besides, the stakes in these cases affect everyone commonly, not individually. The current of history that has passed through the whole country in the wake of martial law has swept all of us, sparing none, and the problem of national survival and of restoring democratic institutions and Ideals is seeking solution in the minds of all of us. That I have preferred to discuss publicly my own thoughts on the matter cannot mean that my colleagues in the Court have been indifferent and apathetic about it, for they too are Filipinos. Articulated or not, all of us must have our own preconceived Ideas and notions in respect to the situation that confronts the country. To be sure, our votes and opinions in the- major political cases in the recent past should more or less indicate our respective basic positions relevant to the issues now before Us. Certainly, contending counsels cannot be entirely in the dark in this regard. I feel that it must have been precisely because of such awareness that despite my known public participation in the discussion of the questions herein involved, none of the parties have sought my inhibition or disqualification.

Actually, although it may be difficult for others to believe it, I have never allowed my preconceptions and personal inclinations to affect the objectivity needed in the resolution of any judicial question before the Court. I feel I have always been able to appreciate, fully consider and duly weigh arguments and points raised by all counsels, even when they conflict with my previous views. I am never beyond being convinced by good and substantial ratiocination. Nothing has delighted me more than to discover that somebody else has thought of more weighty arguments refuting my own, regardless of what or whose interests are at stake. I would not have accepted my position in the Court had I felt I would not be able to be above my personal prejudices. To my mind, it is not that a judge has preconceptions that counts, it is his capacity and readiness to absorb contrary views that are indispensable for justice to prevail. That suspicions of prejudgment may likely arise is unavoidable; but I have always maintained that whatever improper factors might influence a judge will unavoidably always appear on the face of the decision. In any event, is there better guarantee of justice when the preconceptions of a judge are concealed?

Withal, in point of law, I belong to the school of thought that regards members of the Supreme Court as not covered by the general rules relative to disqualification and inhibition of judges in cases before them. If I have in practice actually refrained from participating in some cases, it has not been because of any legal ground founded on said rules, but for purely personal reasons, specially because, anyway, my vote would not have altered the results therein.

It is my considered opinion that unlike in the cases of judges in the lower courts, the Constitution does not envisage compulsory disqualification or inhibition in any case by any member of the Supreme Court. The Charter establishes a Supreme Court "composed of a Chief Justice and fourteen Associate Justices", with the particular qualifications therein set forth and to be appointed in the manner therein provided. Nowhere in the Constitution is there any indication that the legislature may designate by law instances wherein any of the justices should not or may not take part in the resolution of any case, much less who should take his place. Members of the Supreme Court are definite constitutional officers; it is not within the power of the lawmaking body to replace them even temporarily for any reason. To put it the other way, nobody who has not been duly appointed as a member of the Supreme Court can sit in it at any time or for any reason. The Judicial power is vested in the Supreme Court composed as the Constitution ordains - that power cannot be exercised by a Supreme Court constituted otherwise. And so, when as in the instant where, if any of the member of Court is to abstain from taking part, there would be no quorum - and no court to render the decision - it is the includible duty of all the incumbent justices to participate in the proceedings and to cast their votes, considering that for the reasons stated above, the provisions of Section 9 of the Judiciary Act do not appear to conform with the concept of the office of Justice of the Supreme Court contemplated in the Constitution.

The very nature of the office of Justice of the Supreme Court as the tribunal of last resort and bulwark of the rights and liberties of all the people demands that only one of dependable and trustworthy probity should occupy the same. Absolute integrity, mental and otherwise, must be by everyone who is appointed thereto. The moral character of every member of the Court must be assumed to be such that in no case whatsoever. regardless of the issues and the parties involved, may it be feared that anyone's life, liberty or property, much less the national interests, would ever be in jeopardy of being unjustly and improperly subjected to any kind of judicial sanction. In sum, every Justice of the Supreme Court is expected to be capable of rising above himself in every case and of having full control of his emotions and prejudices, such that with the legal training and experience he must of necessity be adequately equipped with, it would be indubitable that his judgment cannot be but objectively impartial, Indeed, even the appointing power, to whom the Justices owe their positions, should never hope to be unduly favored by any action of the Supreme Court. All appointments to the Court are based on these considerations, hence the ordinary rules on inhibition and disqualification do not have to be applied to its members.

With the preliminary matter of my individual circumstances out of the way, I shall now address myself to the grave issues submitted for Our resolution.

- I -

In regard to the first issue as to whether the questions posed in the petitions herein are political or justiciable, suffice it for me to reiterate the fundamental position I took in the Martial Law cases,¹ thus

As We enter the extremely delicate task of resolving the grave issues thus thrust upon Us. We are immediately encountered by absolute verities to guide Us all the way. The first and most important of them is that the Constitution (Unless expressly stated otherwise, all references to the Constitution in this discussion are to both the 1935 and 1973 charters, since, after all, the pertinent provisions are practically Identical in both is the supreme law of the land. This means among other things that all the powers of the government and of all its officials from the President down to the lowest emanate from it. None of them may exercise any power unless it can be traced thereto either textually or by natural and logical implication. "The second is that it is settled that the Judiciary provisions of the Constitution point to the Supreme Court as the ultimate arbiter of all conflicts as to what the Constitution or any part thereof means. While the other Departments may adopt their own construction thereof, when such construction is challenged by the proper party in an appropriate case wherein a decision would be impossible without determining the correct construction, the Supreme Court's word on the matter controls.

xxx xxx xxx

The fifth is that in the same manner that the Executive power conferred upon the Executive by the Constitution is complete, total and unlimited, so also, the judicial power vested in the Supreme Court and the inferior courts, is the very whole of that power, without any limitation or qualification.

xxx xxx xxx

From these incontrovertible postulates, it results, first of all, that the main question before Us is not in reality one of jurisdiction, for there can be no conceivable controversy, especially one involving a conflict as to the correct construction of the Constitution, that is not contemplated to be within the judicial authority of the courts to hear and decide. The judicial power of the courts being unlimited and unqualified, it extends over all situations that call for the as certainment and protection of the rights of any party allegedly violated, even when the alleged violator is the highest official of the land or the government itself. It is, therefore, evidence that the Court's jurisdiction to take cognizance of and to decide the instant petitions on their merits is beyond challenge.

In this connection, however, it must be borne in mind that in the form of government envisaged by the framers of the Constitution and adopted by our people, the Court's indisputable and plenary authority to decide does not necessarily impose upon it the duty to interpose its fiat as the only means of settling the conflicting claims of the parties before it. It is ingrained in the distribution of powers in the fundamental law that hand in hand with the vesting of the judicial power upon the Court, the Constitution has coevally conferred upon it the discretion to determine, in consideration of the constitutional prerogatives granted to the other Departments, when to refrain from imposing judicial solutions and instead defer to the judgment of the latter. It is in the very nature of republican governments that certain matters are left in the residual power of the people themselves to resolve, either directly at the polls or thru their elected representatives in the political Departments of the government. And these reserved matters are easily distinguishable by their very nature, when one studiously considers the basic functions and responsibilities entrusted by the charter to each of the great Departments of the government. To cite an obvious example, the protection, defense and preservation of the state against internal or external aggression threatening its very existence is far from being within the ambit of judicial responsibility. The distinct role then of the Supreme Court of being the final arbiter in the determination of constitutional controversies does not have to be asserted in such contemplated situations, thereby to give way to the ultimate prerogative of the people articulated thru suffrage or thru the acts of their political representatives they have elected for the purpose.

Indeed, these fundamental considerations are the ones that lie at the base of what is known in American constitutional law as the political question doctrine, which in that jurisdiction is unquestionably deemed to be part and parcel of the rule of law, exactly like its apparently more attractive or popular opposite, judicial activism, which is the fullest exertion of judicial power, upon the theory that unless the courts intervene injustice might prevail. It has been invoked and applied by this Court in varied forms and mode of projection in several momentous instances in the past, (Barcelona vs. Baker, 5 Phil. 87; Severino vs. Governor-General, 16 Phil. 366; Abueva vs. Wood, 45 Phil. 612; Alejandrino vs. Quezon, 46 Phil. 85; Vera vs. Avelino, 77 Phil. 192; Mabanag vs. Lopez Vito, 78 Phil. 1; Cabin vs. Francisco, 88 Phil. 654; Montenegro vs. Castaneda, 91 Phil. 882, Santos vs. Yatco, 55 O.G. 8641 [Minute Resolution of Nov. 6, 19591 Osmena vs. Pendatun, Oct. 28, 1960.) and it is the main support of the stand of the Solicitor General on the issue of jurisdiction in the cases at bar. It is also referred to as the doctrine of judicial self-restraint or abstention. But as the nomenclatures themselves imply, activism and self- restraint are both subjective attitudes, not inherent imperatives. The choice of alternatives in any particular eventuality is naturally dictated by what in the Court's considered opinion is what the Constitution envisions should be by in order to accomplish the objectives of government and of nationhood. And perhaps it may be added here to avoid confusion of concepts, that We are not losing sight of the traditional approach based on the doctrine of separation of powers. In truth, We perceive that even under such mode of rationalization, the existence of power is secondary, respect for the acts of a co-ordinate, co-equal and independent Department being the general rule, particularly when the issue is not encroachment of delimited areas of functions but alleged abuse of a Department's own basic prerogatives. (59 SCRA, pp. 379-383.)

Applying the foregoing considerations to the cases at bar, I hold that the Court has jurisdiction to pass on the merits of the various claims of petitioners. At the same time, however, I maintain that the basic nature of the issues herein raised requires that the Court should exercise its constitutionally endowed prerogative to refrain from exerting its judicial authority in the premises.

Stripped of incidental aspects, the constitutional problem that confronts Us stems from the absence of any clear and definite express provision in the Charter applicable to the factual milieu herein involved. The primary issue is, to whom, under the circumstances, does the authority to propose amendments to the Constitution property belong? To say, in the light of Section 15 of Article XVII of the Charter, that that faculty lies in the interim National Assembly is to beg the main question. Indeed, there could be no occasion for doubt or debate, if it could ' only be assumed that the interim National Assembly envisaged in Sections 1 and 2 of the same Article XVII may be convoked. But precisely, the fundamental issue We are called upon to decide is whether or not it is still constitutionally possible to convene that body. And relative to that question, the inquiry centers on whether or not the political developments since the ratification of the Constitution indicate that the people have in effect enjoined the convening of the interim National Assembly altogether. On this score, it is my assessment that the results of the referenda of January 10-15, 1973, July 27-28, 1973 and February 27, 1975 clearly show that the great majority of our people, for reasons plainly obvious to anyone who would consider the composition of that Assembly, what with its more than 400 members automatically voted into it by the Constitutional Convention together with its own members, are against its being convoked at all.

Whether or not such a manifest determination of the sentiments of the people should be given effect without a formal amendment of the Constitution is something that constitutional scholars may endlessly debate on. What cannot be disputed, however, is that the government and the nation have acquiesced to, it and have actually operated on the basis thereof. Proclamation 1103 which, on the predicate that the overwhelming majority of the people desire that the interim Assembly be not convened, has ordained the suspension of its convocation, has not been assailed either judicially or otherwise since the date of its promulgation on January 17, 1973.

In these premises, it is consequently the task of the Court to determine what, under these circumstances, is the constitutional relevance of the interim National Assembly to any proposal to amend the Constitution at this time. It is my considered opinion that in resolving that question, the Court must have to grapple with the problem of what to do with the will of the people, which although manifested in a manner not explicitly provided for in the Constitution, was nevertheless official, and reliable, and what is more important clear and unmistakable, despite the known existence of well-meaning, if insufficiently substantial dissent. Such being the situation, I hold that it is not proper for the Court to interpose its judicial authority against the evident decision of the people and should leave it to the political department of the government to devise the ways and means of resolving the resulting problem of how to amend the Constitution, so long as in choosing the same, the ultimate constituent power is left to be exercised by the people themselves in a well- ordered plebiscite as required by the fundamental law.

- 2 -

Assuming We have to inquire into the merits of the issue relative to the constitutional authority behind the projected amendment of the Charter in the manner provided in Presidential Decree 1033, I hold that in the peculiar situation in which the government is today, it is not incompatible with the Constitution for the President to propose the subject amendments for ratification by the people in a formal plebiscite under the supervision of the Commission on Elections. On the contrary, in the absence of any express prohibition in the letter of the Charter, the Presidential Decree in question is entirely consistent with the spirit and the principles underlying the Constitution. The correctness of this conclusion should become even more patent, when one considers the political developments that the people have brought about since the ratification of the Constitution on January 17,1973.

I consider it apropos at this juncture to repeat my own words in a speech I delivered on the occasion of the celebration of Law Day on September 18, 1975 before the members of the Philippine Constitution Association and their guests:

To fully comprehend the constitutional situation in the Philippines today, one has to bear in mind that, as I have mentioned earlier, the martial law proclaimed under the 1935 Constitution overtook the drafting of the new charter by the Constitutional Convention of 1971. It was inevitable, therefore, that the delegates had to take into account not only the developments under it but, most of all, its declared objectives and what the President, as its administrator, was doing to achieve them. In this connection, it is worthy of mention that an attempt to adjourn the convention was roundly voted down to signify the determination of the delegates to finish earliest their work, thereby to accomplish the mission entrusted to them by the people to introduce meaningful reforms in our government and society. Indeed, the constituent labors gained rapid tempo, but in the process, the delegates were to realize that the reforms they were formulating could be best implemented if the martial law powers of the President were to be allowed to subsist even after the ratification of the Constitution they were approving. This denouement was unusual. Ordinarily, a constitution born out of a crisis is supposed to provide all the needed cures and can, therefore, be immediately in full force and effect after ratification. Not so, with our 1973 Constitution, Yes, according to the Supreme Court, 'there is no more judicial obstacle to the new Constitution being considered in force and effect', but in truth, it is not yet so in full. Let me explain.

To begin with, in analyzing the new Constitution, we must be careful to distinguish between the body or main part thereof and its transitory provisions. It is imperative to do so because the transitory provisions of our Constitution are extraordinary in the sense that obviously they have been designed to provide not only for the transition of our government from the presidential form under the past charter to a parliamentary one as envisaged in the new fundamental law, but also to institutionalize, according to the President, the reforms introduced thru the exercise of his martial law powers. Stated differently, the transitory provisions, as it has turned out, has in effect established a transition government, not, I am sure, perceived by many. It is a government that is neither presidential nor parliamentary. It is headed, of course, by President Marcos who not on retains all his powers under the 1935 Constitution but enjoys as well those of the President and the Prime Minister under the new Constitution. Most importantly, he can and does legislate alone. But to be more accurate, I should say that he legislates alone in spite of the existence of the interim National Assembly unequivocally ordained by the Constitution, for the simple reason that he has suspended the convening of said assembly by issuing Proclamation No. 1103 purportedly 'in deference to the sovereign will of the Filipino people' expressed in the January 10-15, 1973 referendum.

Thus, we have here the unique case of a qualified ratification. The whole Constitution was submitted for approval or disapproval of the people, and after the votes were counted and the affirmative majority known, we were told that the resulting ratification was subject to the condition that the interim National Assembly evidently established in the Constitution as the distinctive and indispensable element of a parliamentary form of government should nevertheless be not convened and that no elections should be held for about seven years, with the consequence that we have now a parliamentary government without a parliament and a republic without any regular election of its officials. And as you can see, this phenomenon came into being not by virtue of the Constitution but of the direct mandate of the sovereign people expressed in a referendum. In other words, in an unprecedented extra-constitutional way, we have established, wittingly or unwittingly, a direct democracy through the Citizens Assemblies created by Presidential Decree No. 86, which later on have been transformed into barangays, a system of government proclaimed by the President as 'a real achievement in participatory democracy.' What I am trying to say, my friends, is that as I perceive it, what is now known as constitutional authoritarianism means, in the final analysis, that the fundamental source of authority of our existing government may not be necessarily found within the four corners of the Constitution but rather in the results of periodic referendums conducted by the Commission on Elections in a manner well known to all of us This, as I see it, is perhaps what the President means by saying that under the new Constitution he has extra-ordinary powers independently of martial law - powers sanctioned directly by the people which may not even be read in the language of the Constitution. in brief, when we talk of the rule of law nowadays, our frame of reference should not necessarily be the Constitution but the outcome of referendums called from time to time by the President. The sooner we imbibe this vital concept the more intelligent will our perspective be in giving our support and loyalty to the existing government. What is more, the clearer will it be that except for the fact that all the powers of government are being exercised by the President, we - do not in reality have a dictatorship but an experimental type of direct democracy."

In the foregoing disquisition, I purposely made no mention of the referendum of February 27, 1975. It is important to note, relative to the main issue now before Us, that it was originally planned to ask the people in that referendum whether or not they would like the interim National Assembly to convene, but the Comelec to whom the task of preparing the questions was assigned was prevailed upon not to include any -such question anymore, precisely because it was the prevalent view even among the delegates to the Convention as well as the members of the old Congress concerned that that matter had already been finally resolved in the previous referenda of January and July 1973 in the sense that. the Assembly should not be convened comparable to res adjudicata.

It is my position that as a result of the political developments since January 17, 1973 the transitory provisions envisioning the convening of the interim National Assembly have been rendered legally inoperative. There is no doubt in my mind that for the President to convoke the interim National Assembly as such would be to disregard the will of the people - something no head of a democratic republican state like ours should do. And I find it simply logical that the reasons that motivated the people to enjoin the convening of the Assembly - the unusually large and unmanageable number of its members and the controversial morality of its automatic composition consisting of all the incumbent elective national executive and legislative officials under the Old Constitution who would agree to join it and the delegates themselves to the Convention who had voted in favor of the Transitory Provisions - apply not only to the Assembly as an ordinary legislature but perhaps more to its being a constituent body. And to be more realistic, it is but natural to conclude that since the people are against politicians in the old order having anything to do with the formulation of national policies, there must be more reasons for them to frown on said politicians taking part in amendment of the fundamental law, specially because the particular amendment herein involved calls for the abolition of the interim National Assembly to which they belong and its substitution by the Batasang Pambansa.

It is argued that in law, the qualified or conditional ratification of a constitution is not contemplated. I disagree. It is inconsistent with the plenary power of the people to give or withhold their assent to a proposed Constitution to maintain that they can do so only wholly. I cannot imagine any sound principle that can be invoked to support the theory that the proposing authority can limit the power of ratification of the people. As long as there are reliable means by which only partial approval can be manifested, no cogent reason exists why the sovereign people may not do so. True it is that no proposed Constitution can be perfect and it may therefore be taken with the good and the bad in it, but when there are feasible ways by which it can be determined which portions of it, the people disapprove. it would be stretching technicality beyond its purported office to render the final authority - the people impotent to act according to what they deem best suitable to their interests.

In any event, I feel it would be of no consequence to debate at length regarding the legal feasibility of qualified ratification. Proclamation 1103 categorically declares that:

WHEREAS, fourteen million nine hundred seventy six thousand five hundred sixty-one (14,976.561) members of all the Barangays voted for the adoption of the proposed Constitution, as against seven hundred forty-three thousand eight hundred sixty-nine (743,869) who voted for its rejection; but a majority of those who approved the new Constitution conditioned their votes on the demand that the interim National Assembly provided in its Transitory Provisions should not be convened.

and in consequence, the President has acted accordingly by not convening the Assembly. The above factual premises of Proclamation 1103 is not disputed by petitioners. Actually, it is binding on the Court, the same being a political act of a coordinate department of the government not properly assailed as arbitrary or whimsical. At this point, it must be emphasized in relation to the contention that a referendum is only consultative, that Proclamation 1103, taken together with Proclamation 1102 which proclaimed the ratification of the Constitution, must be accorded the same legal significance as the latter proclamation, as indeed it is part and parcel if the Act of ratification of the Constitution, hence not only persuasive but mandatory. In the face of the incontrovertible fact that the sovereign people have voted against the convening of the interim National Assembly, and faced with the problem of amending the Constitution in order precisely to implement the people's rejection of that Assembly, the problem of constitutional dimension that confronts Us, is how can any such amendment be proposed for ratification by the people?

To start with, it may not be supposed that just because the office or body designed by the constitutional convention to perform the constituent function of formulating proposed amendments has been rendered inoperative by the people themselves, the people have thereby foreclosed the possibility of amending the Constitution no matter how desirable or necessary this might be. In this connection, I submit that by the very nature of the office of the Presidency in the prevailing scheme of government we have - it being the only political department of the government in existence - it is consistent with basic principles of constitutionalism to acknowledge the President's authority to perform the constituent function, there being no other entity or body lodged with the prerogative to exercise such function.

There is another consideration that leads to the same conclusion. It is conceded by petitioners that with the non-convening of the interim Assembly, the legislative authority has perforce fallen into the hands of the President, if only to avoid a complete paralysis of law-making and resulting anarchy and chaos. It is likewise conceded that the provisions of Section 3 (2) of Article XVII invest the President with legislative power for the duration of the transition period. From these premises, it is safe to conclude that in effect the President has been substituted by the people themselves in place of the interim Assembly. Such being the case, the President should be deemed as having been granted also the cognate prerogative of proposing amendments to the Constitution. In other words, the force of necessity and the cognate nature of the act justify that the department exercising the legislative faculty be the one to likewise perform the constituent function that was attached to the body rendered impotent by the people's mandate. Incidentally, I reject most vehemently the proposition that the President may propose amendments to the Constitution in the exercise of his martial law powers. Under any standards, such a suggestion cannot be reconciled with the Ideal that a Constitution is the free act of the people.

The alternative of calling a constitutional convention has also been mentioned. But, in the first place, when it is considered that whereas, under Section 1 (1) and (2) of Article XVI, the regular National Assembly may call a Constitutional Convention or submit such a call for approval of the people, Section 15 of Article XVII, in reference to interim National Assembly, does not grant said body the prerogative of calling a convention, one can readily appreciate that the spirit of the Constitution does not countenance or favor the calling of a convention during the transition, if only because such a procedure would be time consuming, cumbersome and expensive. And when it is further noted that the requirement as to the number of votes needed for a proposal is only a majority, whereas it is three-fourths in respect to regular Assembly, and, relating this point to the provision of Section 2 of Article XVI to the effect that all ratification plebiscites must be held "not later than three months after the approval" of the proposed amendment by the proposing authority, the adoption of the most simple manner of amending the charter, as that provided for in the assailed Presidential Decree 1033 suggests itself as the one most in accord with the intent of the fundamental law.

There is nothing strange in adopting steps not directly based on the letter of the Constitution for the purpose of amending or changing the same. To cite but one important precedent, as explained by Mr. Justice Makasiar in his concurring opinion in Javellana 2, the present Constitution of the United States was neither proposed nor ratified in the manner ordained by the original charter of that country, the Articles of Confederation and Perpetual Union.

In brief. if the convening and operation of the interim National Assembly has been effectuated through a referendum-plebiscite in January, 1973, and ratified expressly and impliedly in two subsequent referenda, those of July, 1973 and February, 1975, why may not a duly held plebiscite suffice for the purpose of creating a substitute for that Assembly? It should be borne in mind that after all, as indicated in the whereas of the impugned Presidential Decree, actually, the proposed amendments were initiated by the barangays and sanggunian members. In other words, in submitting the amendments for ratification, the President is merely acting as the conduit thru whom a substantial portion of the people, represented in the Katipunan ng Mga Sanggunian, Barangay at Kabataang Barangay, seek the approval of the people as a whole of the amendments in question. If all these mean that the sovereign people have arrogated unto themselves the functions relative to the amendment to the Constitution, I would regard myself as totally devoid of legal standing to question it, having in mind that the most fundamental tenet on which our whole political structure rests is that "sovereignty resides in the people and all government authority emanates from them."

In the light of the foregoing considerations, I hold that Presidential Decree No. 1033 does not infringe the Constitution, if only because the specific provision it is supposed to infringe does not exist in legal contemplation since it was coevally made inoperative when the people ratified the Constitution on January 17, 1973. I am fully convinced that there is nothing in the procedure of amendment contained in said decree that is inconsistent with the fundamental principles of constitutionalism. On the contrary, I find that the Decree, in issue conforms admirably with the underlying tenet of our government - the sovereignty and plenary power of the people.

On the issue of whether or not October 16, 1976 is too proximate to enable the people to sufficiently comprehend the issues and intelligently vote in the referendum and plebiscite set by Presidential Decree 1033, all I can say is that while perhaps my other colleagues are right in holding that the period given to the people is adequate, I would leave it to the President to consider whether or not it would be wiser to extend the same. Just to avoid adverse comments later I wish the President orders a postponement. But whether such postponement is ordered or not, date of the referendum- plebiscite anywhere from October 16, 1976 to any other later date, would be of no vital import.

In conclusion, I vote to dismiss all the three petitions before Us.

MAKASIAR, J., concurring and dissenting:

Since the validity or effectivity of the proposed amendments is to be decided ultimately by the people in their sovereign capacity, the question is political as the term is defined in Tanada, et al. vs. Cuenco, et al. (103 Phil. 1051), which is a bar to any judicial inquiry, for the reasons stated in Our opinion in Javellana, et al. vs. Executive Secretary, et al. (L-36142); Tan, et al. vs. Executive Secretary, et al. (L,36164); Roxas, et al. vs Executive Secretary, et al. (L-36165); Monteclaro, etc., et al. vs' Executive Secretary, et al. (@36236); and Ditag et al. vs. Executive Secretary, et al. (L-W283, March 31, 1973, 50 SCRA 30, 204-283). The procedure for amendment is not important Ratification by the people is all that is indispensable to validate an amendment. Once ratified, the method of making the proposal and the period for submission become relevant.

The contrary view negates the very essence of a republican democracy - that the people are sovereign - and renders meaningless the emphatic declaration in the very first provision of Article II of the 1973 Constitution that the Philippines is a republican state, sovereignty resides in the people and all government authority emanates from them. It is axiomatic that sovereignty is illimitable The representatives cannot dictate to the sovereign people. They may guide them; but they cannot supplant their judgment, Such an opposite view likewise distrusts the wisdom of the people as much as it despises their intelligence. It evinces a presumptuous pretension to intellectual superiority. There are thousands upon thousands among the citizenry, who are not in the public service, who are more learned and better skilled than many of their elected representatives.

Moreover, WE already ruled in Aquino, et al. vs- Comelec, et al. (L 40004, Jan. 31, 1975, 62 SCRA 275, 298-302) that the President as enforcer or administrator of martial rule during the period of martial law can legislate; and that he has the discretion as to when the convene the interim National Assembly depending on prevailing conditions of peace and order. In view of the fact that the interim National Assembly has not been convoked in obedience to the desire of the people clearly expressed in the 1973 referenda, the President therefore remains the lone law-making authority while martial law subsists. Consequently, he can also exercise the power of the interim National Assembly to propose amendments to the New Constitution (Sec. 15,,Art. XVII If, as conceded by petitioner Vicente Guzman (L-44684), former delegate to the 1971 Constitutional Convention which drafted the 1973 Constitution. the President, during the period of martial law, can call a constitutional convention for the purpose, admittedly a constituent power, it stands to reason that the President can likewise legally propose amendments to the fundamental law.

ANTONIO, J., concurring:

At the threshold, it is necessary to clarify what is a "political question". It must be noted that this device has been utilized by the judiciary "to avoid determining questions it is ill equipped to determine or that could be settled in any event only with the effective support of the political branches."¹ According to Weston, judges, whether "personal representatives of a truly sovereign king, or taking their seats as the creatures of a largely popular sovereignty speaking through a written constitution, derive their power by a delegation, which clearly or obscurely as the case may be, deliminates and delimits their delegated jurisdiction.* * * Judicial questions * * * are those which the sovereign has set to be decided in the courts. Political questions, similarly, are those which the sovereign has entrusted to the so-called political departments of government or has reserved to be settled by its own extra-government or has reserved to be settled by its own extra-governmental action."² Reflecting a similar concept, this Court has defined a "political question" as a "matter which is to be exercised by the people in their primary political capacity or that has been specifically delegated to some other department or particular officer of the government, with discretionary power to act."³ In other words, it refers to those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of government.⁴

In determining whether an issue falls within the political question category, the absence of satisfactory creterion for a judicial determination or the appropriateness of attributing finality to the action of the political departments of government is a dominant consideration. This was explained by Justice Brennan in Baker v. Carr,⁵ thus :

Prominent on the surface of any case held to involve political question is found a textually demonstrable constitutional lack of judicially discoverrable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from from multifarious pronouncements by various departments on one question. . . .

To decide whether a matter has in a measure been committed by the Constitution to another branch of government or retained be the people to be decided by them in their sovereign capacity, or whether that branch exceeds whatever authority has been committed, is indeed a delicate exercise in constitutional interpretation.

In Coleman v. Miller, ⁶ the United States Supreme Court held that the efficacy of the ratification by state legislatures of a constitutional amendment is a political question. On the question of whether the State Legislature could constitutionally relative an amendment, after the same had been previously rejected by it, it was held that the ultimate authority over the question was in Congress in the exercise of its control over the promulgation of the adoption of the amendment. And in connection with the second question of whether the amendment has lost its, vitality through the lapse of time, the Court held that the question was likewise political, involving "as it does ... an appraisal of a great variety of relevant conditions, political, social and economic, which can hardly be said to be within the appropriate range of evidence receivable in a court of justice and as to which it would be an extravagant extension of juridical authority to assert judicial notice as the basis of deciding a controversy with respect to the validity of an amendment actually ratified. On the other hand, these conditions are appropriate for the consideration of the political departments of the Government. The questions they involve are essentially political and not justiciable." '

In their concurring opinions, Justices Black, Roberts, Frankfurter and Douglas stressed that:

The Constitution grants Congress exclusive power to control submission off constitutional amendments. Final determination by Congress their ratification by three-fourths of the States has taken place 'is conclusive upon the courts.' In the exercise of that power, Congress, of course, is governed by the Constitution. However, A whether submission, intervening procedure for Congressional determination of ratification conforms to the commands of the Constitution, call for decisions by apolitical department of questions of a t@ which this Court has frequently designated 'political.' And decision of a 'political question' by the political department' to which the Constitution has committed it 'conclusively binds the judges, as well as all other officers, citizens and subjects of ... government. Proclamation under authority of Congress that an amendment has been ratified will carry with it a solemn assurance by the Congress that ratification has taken place as the Constitution commands. Upon this assurance a proclaimed amendment must be accepted as a part of the Constitution, learning to the judiciary its traditional authority of interpretation. To the extent that the Court's opinion in the present case even by implieding assumes a power to make judicial interpretation of the exclusive constitutional authority of Congress over submission and by ratification of amendments, we are unable to agree.

Relying on this doctrine enunciated in Coleman v. Miller supra this Court, in Mabanag v. Lopez Vitol, ⁷ speaking through Mr. Justice Pedro Tuason, ruled that the process of constitutional amendment, involving proposal and ratification, is a political question. In the Mabang case, the petitioners sought to prevent the enforcement of a resolution of Congress proposing the "Parity Amendment" to the Philippine Constitution on the ground that it had not been approved by the three-fourths vote of all the members of each house as required be Article XV of the 1935 Constitution. It was claimed that three (3) Senators and eight (8) members of the House of Representatives had been suspended and that their membership was not considered in the determination of the three- fourths %- ore In dismissing the petition on the ground that the question of the validity of the proposal was political, the Court stated:

"If ratification of an amendment is a political question, a proposal which leads to ratification has to be a political question. The question to steps complement each other in a scheme intended to achieve a single objective. It is to be noted that amendatory process as provided in Section I of Article XV of the Philippine Constitution 'consists of (only) two distinct parts: proposal and ratification.' There is no logic in attaching political character to one and withholding that character from the other. Proposal to amend the Constitution is a highly political function performed by the Congress in its sovereign legislative capacity and committed to its charge by the Constitution itself. ..." (At pages 4-5, Italics supplied.)

It is true that in Gonzales v. Comelec, ⁸ this Court held that "the issue whether or not a Resolution of Congress, acting as a constituent assembly - violates the Constitution is essentially justiciable, not political, and hence, subject to judicial review." What was involved in Gonzales, however, was not a proposed What was involved in Gonzales, however, was not a proposed amendment to the Constitution but an act of Congress,⁹ submitting proposed amendments to the Constitution. Similarly, in Tolentino v. Commission an Elections, 10 what was involved was not the validity of the proposal to lower the voting age but rather that of the resolution of the Constitutional Convention submitting the proposal for ratification. The question was whether piecemeal amendments to the Constitution could submitted to the people for approval or rejection.

Here, the point has been stressed that the President is acting as agent for and in behalf of the people in proposing the amendment. there can be no question that in the referendums of January, 1973 and in the subsequent referendums the people had clearly and categorically rejected the calling of the interim National Assembly. As stated in the main opinion, the Lupang Tagapagpaganap of the Katipunan ng mga Sanggunian, the Pambansang Katipunan ng mga Barangay, representing 42,000 barangays, the Kabataang Barangay organizations and the various sectoral groups had proposed the replacement of the interim National Assembly. These barangays and the Sanggunian assemblies are effective instrumentalities through which the desires of the people are articulated and expressed. The Batasang Bayan (Legislative Council), composed of nineteen (19) cabinet members and nine (9) officials with cabinet rank, and ninety-one (91) members of the Lupang Tagapagpaganap (Executive Committee) of the Katipunan ng mga Sangguniang Bayani voted in their special session to submit directly to the people in a plebiscite on October 16, 1976 the afore-mentioned constitutional amendments. Through the Pambansang Katipunan by Barangay and the Pampurok ng Katipunan Sangguniang Bayan, the people have expressed their desire not only to abolish the interim National Assembly, but to replace it with a more representative body acceptable to them in order to effect the desirable constitutional changes necessary to hasten the political evolution of the government towards the parliamentary system, while at the same time ensuring that the gains of the New Society, which are vital to the welfare of the people, shall be safeguarded. The proposed constitutional amendments, therefore, represent a consensus of the people.

It would be futile to insist that the intemi National Assembly should have been convened to propose those amendments pursuant to Section 15 of Article XVII of the Constitution. This Court, in the case of Aquino v. Commission or Elections,¹¹ took judicial notice of the fact that in the referendum of January, 1973, a majority of those who approved the new Constitution conditioned their votes on the demand that the interim National Assembly provided in the Transitory Provisions should not be and the President "in deference to the sovereign will of the Filipino people" declared that the convening of said body shall be suspended.¹² As this Court observed in the Aquino case:

His decision to defer the initial convocation of the byiitttit National Assembly was supported by the sovereign people at the by 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 byjso ofitto members of the intetini National Assembly are against such inclusion; because the issue was already bycciled 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 wasted public funds through endless debates without relieving the suffering of the general mass of citizenry (p. 302.) The action of the President in suspending the convening of the interim National Assembly has met the overwhelming approval of the people in subsequent referenda.

Since it was the action by the people that gave binding force and effect to the new Constitution, then it must be accepted as a necessary consequence that their objection against the immediate convening of the interim National Assembly must be respected as a positive mandate of the sovereign.

In the Philippines, which is a unitary state, sovereignty "resides in the people and all government authority emanates from them."13 The term "People" as sovereign is comprehensive in its context. The people, as sovereign creator of all political reality, is not merely the enfranchised citizens but the political unity of the people. 14 It connotes, therefore, a people which exists not only in the urgent present but in the continuum of history. The assumption that the opinion of The People as voters can be treated as the expression of the interests of the People as a historic community was, to the distinguished American journalist and public philosopher, Walter Lipunan, unwarranted.

Because of the discrepancy between The People as Voters and the People as the corporate nation, the voters have no title to consider themselves the proprietors of the commonwealth and to claim that their interests are Identical to the public interest. A prevailing plurality of the voters are not The People. The claim that they are is a bogus title invoked to justify the usurpation of the executive power by representative assemblies and the intimidation of public men by demagogue politicians. In fact demagoguery can be described as the sleight of hand by which a faction of The People as voters are invested with the authority of The People. That is why so many crimes are committed in the People's name ¹⁵

In Gonzales v. Comelec, supra, the Court clearly emphasized that the power to propose amendments or to amend the Constitution is part of the inherent power of the people as the repository of sovereignty in a republican state. While Congress may propose amendments to the Constitution, it acts pursuant to authority granted to it by the people through the Constitution. Both the power to propose and the authority to approve, therefore, inhere in the people as the bearer of the Constitution making power.

Absent an interim National Assembly upon whom the people, through the Constitution, have delegated the authority to exercise constituent powers, it follows from necessity that either the people should exercise that power themselves or through any other instrumentality they may choose. For Law, like Nature, abhors a vacuum (natural vacuum abhorret).

The question then is whether the President has authority to act for the people in submitting such proposals for ratification at the plebiscite of October 16. The political character of the question is, therefore, particularly manifest, considering that ultimately it is the people who will decide whether the President has such authority. It certainly involves a matter which is to be exercised by the people in their sovereign capacity, hence, it is essentially political, not judicial.

While it is true that the constituent power is not to be confuse with legislative power in general because the prerogative to propose amendments is not embraced within the context of ordinary lawmaking, it must be noted that the proposals to be submitted for ratification in the forthcoming referendum are, in the final analysis, actually not of the President but directly of the people themselves, speaking through their authorized instrumentalities.

As the Chief Justice aptly stated in his concurring opinion in this case:

... The President merely formalized the said proposals in Presidential Decree No. 1033. It being conceded in all quarters that sovereignty resides in the people and it having been demonstrated that their constituent power to amend the Constitution has not been delegated by them to any instrumentality of the Government during the present stage of the transition period of our political development, the conclusion is ineluctable that their exertion of that residuary power cannot be vulnerable to any constitutional challenge as beingultravires. Accordingly, without venturing to rule on whether or not the President is vested with constituent power - as it does not appear necessary to do so in the premises - the proposals here challenged, being acts of the sovereign people no less, cannot be said to be afflicted with unconstitutionality. A fortiori, the concomitant authority to call a plebiscite and to appropriate funds therefor is even less vulnerable not only because the President, in exercising said authority, has acted as a mere ofiffet byf of the people who made the proposals, but likewise because the said authority is legislative in nature rather than constituent.

This is but a recognition that the People of the Philippines have the inherent, sole and exclusive right of regulating their own government, and of altering or abolishing their Constitution whenever it may be necessary to their safety or happiness. There appears to be no justification, under the existing, circumstances, for a Court to create by implication a limitation on - the sovereign power of the people. As has been clearly explained in a previous case:

There is nothing in the nature of the submission which should cause the free exercise of it to be obstructed, or that could render it dangerous to the stability of the government; because the measure derives all its vital force from the action of the people at the ballot box, and there can never be danger in submitting in an established form to a free people, the proposition whether they will change their fundamental law The means provided for the exercise of their Sovereign right of changing their constitution should receive such a construction as not to trammel the exercise of the right. Difficulties and embarrassments in its exercise are in derogation of the right of free government, which is inherent in the people; and the best security against tumult and revolution is the free and unobstructed privilege to the people of the State to change their constitution in the mode prescribed by the instrument.

III

The paramount consideration that impelled Us to arrive at the foregoing opinion is the necessity of ensuring popular control over the constituent power. "If the people are to control the constituent power - the power to make and change the fundamental law of the State," observed Wheeler," "the process of Constitutional change must not be based too heavily upon existing agencies of government." Indeed, the basic premise of republicanism is that the ordinary citizen, the common man. can be trusted to determine his political destiny. Therefore, it is time that the people should be accorded the fullest opportunity to decide the laws that shall provide for their governance. For in the ultimate analysis, the success of the national endeavor shall depend on the vision, discipline and I by ininess of the moqqqtai will of every Filipino.

IN VIEW OF THE FOREGOING CONSIDERATIONS, We vote to dismiss the petitions.

Aquino, J., concur.

MUNOZ PALMA, J., dissenting:

I concur fully with the remarkably frank (so characteristic of him) dissenting opinion of my distinguished colleague, Justice Claudio Teehankee. If I am writing this brief statement it is only to unburden myself of some thoughts which trouble my mind and leave my conscience with no rest nor peace.

Generally, one who dissents from a majority view of the Court takes a lonely and at times precarious road, the burden byeing lightened only by the thought that in this grave task of administering justice, when matters of conscience are at issue, one must be prepared to espouse and embrace a rightful cause however unpopular it may be.

1. That sovereignty resides in the people and all government authority emanates from them is a fundamental, basic principle of government which cannot be disputed, but when the people have opted to govern themselves under the mantle of a written Constitution, each and every citizen, from the highest to the lowliest, has the sacred duty to respect and obey the Character they have so ordained.

By the Constitution which they establish, they not only tie up he 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. (Cooley's Constitutional Limitations, 7th Ed. p. 56, Italics Our).

The afore-quoted passage from the eminent jurist and author Judge Cooley although based on declarations of law of more than a century ago, lays down a principle which to my mind is one of the enduring cornerstones of the Rule of Law. it is a principle with which I have been familiar as a student of law under the tutelage of revered Professors, Dr. Vicente G. Sinco and Justice Jose P. Laurel, and which I pray will prevail at all times to ensure the existence of a free, stable, and civilized society.

The Filipino people,. wanting to ensure to themselves a democratic republican form of government, have promulgated a Constitution whereby the power to govern themselves has been entrusted to and distributed among three branches of government; they have also mandated in clear and unmistakable terms the method by which provisions in their fundamental Charter may be amended or revised. Having done so, the people are bound by these constitutional limitations. For while there is no surrender or abdication of the people's ultimate authority to amend, revise, or adopt a new Constitution, sound reason demands that they keep themselves within the procedural bounds of the existing fundamental law. The right of the people to amend or change their Constitution if and when the need arises is not to be denied, but we assert that absent a revolutionary state or condition in the country the change must be accomplished through the ordinary, regular and legitimate processes provided for in the Constitution.'

I cannot subscribe therefore to the view taken by the Solicitor General that the people, being sovereign, have the authority to amend the Constitution even in a manner different from and contrary to that expressly provided for in that instrument, and that the amendatory process is intended more as a limitation of a power rather than a grant of power to a particular agency and it should not be construed as limiting the ultimate sovereign will of the people to decide on amendments to the Constitution .2 Such a view will seriously undermine the very existence of a constitutional government and will permit anarchy and/or mob rule to set afoot and prevail. Was it the Greek philosopher Plato who warned that the rule of the mob is a prelude to the rule of the tyrant?

I would use the following excerpt from Bernas, S.J. 'The 1973 Philippine Constitution, Notes and Cases" as relevant to my point:

. . . the amendatory provisions are called a 'constitution of sovereighty' because they define the constitutional meaning of 'sovereignty of the people.' Popular sovereignty, as embodied in the Philippine Constitution, is not extreme popular sovereignty. As one American writer put it:

A constitution like the American one serves as a basic check upon the popular will at any given time. It is the distinctive function of such written document to classify certain things as legal fundamentals; these fundamentals may not be changed except by the slow and cumbersome process of amendment. The people themselves have decided, in constitutional convention assembled, to limit themselves ana future generations in the exercise of the sovereign power which they would otherwise possess. And it is precisely such limitation that enables those subject to governmental authority to appeal from the people drunk to the people sober in time of excitement and hysteria. The Constitution, in the neat phrase of the Iowa court, is the protector of the people against injury by the .people. *

Truly, what need is there for providing in the Constitution a process by which the fundamental law may be amended if, after all, the people by themselves can set the same at naught even in times of peace when civil authority reigns supreme? To go along with the respondents' theory in this regard is to render written Constitutions useless or mere "ropes of sand allowing for a government of men instead of one of laws. For it cannot be discounted that a situation may arise where the people are heralded to action at a point of a gun or by the fiery eloquence of a demagogue, and where passion overpowers reason, and mass action overthrows legal processes. History has recorded such instances, and I can think of no better example than that of Jesus Christ of Judea who was followed and loved by the people while curing the sick, making the lame walk and the blind see, but shortly was condemned by the same people turned into fanatic rabble crying out "Crucify Him, Crucify Him" upon being incited into action by chief priests and elders of Jerusalem. Yes, to quote once more from Judge Cooley:

A good Constitution should be beyond the reason of temporary excitement and popular caprice or passion. It is needed for stability and steadiness; it must yield to the thought of the people; not to the whim of the people, or the thought evolved in excitement or hot blood, but the sober second thought, which alone, if the government is to be sale can be allowed efficiency. .... Changes in government are to be feared unless the benefit is certain." (quoted in Ellingham v. Dye, 99 N.E. 1, 15,)³

Crawford v. Gilchrist 64 Fla. 41., 59., So. 963, Ann. Cas. 1914B, 916; State v. Hall, 159 N.W., 281; Opinion of Marshall, J. in State ex. rel. Poster v. Marcus, 152 N.W., 419;

From Kochier v. Hill, Vol. 15, N.W., 609, we quote:

xxx xxx xxx

It has been said that changes in the constitution may be introduced in disregard of its provisions; that if the majority of the people desire a change the majority must be respected, no matter how the change may be effected; and that the change, if revolution, is peaceful resolution. ...

We fear that the advocates of this new doctrine, in a zeal to accomplish an end which the majority of the people desire, have looked at but one phase of the question, and have not fully considered the terrible consequences which would almost certainly follow a recognition of the doctrine for which they contend. It may be that the incorporation of this amendment in the constitution, even if the constitution has to be broken to accomplish it, would not of itself produce any serious results. But if it should be done by sanctioning the doctrine contended for, a precedent would be set which would plague the state for all future time. A Banquo's ghost would arise at our incantation which would not down at our bidding.

xxx xxx xxx

We ought to ponder long before we adopt a doctrine so fraught with danger to republican institutions. ...

xxx xxx xxx

Appellants' counsel cite and rely upon section 2, art. 1, of the constitution of the staff This section is a portion of the bill of rights, and is as follows: 'All political power is inherent in the people. Government is instituted for the protection, security, and benefit of of the people; and they have the right at all times to alter or reform the same, whenever the public good may require.' Abstractly considered, there can bye no doubt of the correctness of the propositions embraced in this suction. These principles are older than constitutions and older than governments. The people did not derive the rights referred to by on the constitution. and, in their nature, thee are such that the people cannot surrender them ... .

2. Presidential Decrees Nos. 991 and 1033 which call for a national referendum-plebiscite on October 16, 1976 for the purpose, among other things, of amending certain provisions of the 1973 Constitution are null and void as they contravene the express provisions on the amending process of the 1973 Constitution laid down in Article XVI, Section 1 (1) and Article XVII, Section 15, more particularly the latter which applies during the present transition period. The Opinion of Justice Teehankee discusses in detail this particular matter.

I would just wish to stress the point that although at present there is no by tterint National Assembly which may propose amendments to the Constitution, the existence of a so-called "vacuum" or "hiatus" does not justify a transgression of the constitutional provisions on the manner of amending the fundamental law. We cannot cure one infirmity - the existence of a "vacuum" caused by the non-convening of the interim National Assembly - with another infirmity, that is, doing violence to the Charter.

All great mutations shake and disorder a state. Good does not necessarily succeed evil; another evil may succeed and a worse. (Am. Law Rev. 1889, p. 311., quoted in Ellingham v. Dye, supra, p. 15)

Respondents contend that the calling of the referendum-plebiscite for the purpose indicated is a step necessary to restore the state of normalcy in the country. To my mind, the only possible measure that will lead our country and people to a condition of normalcy is the lifting or ending of the state of martial law. If I am constrained to make this statement it is because so much stress was given during the hearings of these cases on this particular point, leaving one with the impression that for petitioners to contest the holding of the October 16 referendum-plebiscite is for them to assume a position of blocking or installing the lifting of martial law, which I believe is unfair to the petitioners. Frankly, I cannot see the connection between the two. My esteemed colleagues should pardon me therefore if I had ventured to state that the simple solution to the simple solution to the present dilemma is the lifting of martial law and the implementation of the constitutional provisions which will usher in the parliamentary form of government ordained in the Constitution, which, as proclaimed in Proclamation 1102, the people themselves have ratified.

If the people have indeed ratified the 1973 Constitution, then they are bound by their act and cannot escape from the pretended unfavorable consequences thereof, the only y being to set in motion the constitutional machinery by which the supposed desired amendments may properly be adopted and submitted to the electorate for ratification. Constitutional processes are to be observed strictly, if we have to maintain and preserve the system of government decreed under the fundamental Charter. As said by Justice Enrique Fernando in Mutuc vs. Commission on Elections

... The concept of the Constitution as the fundamental law, setting forth the criterion for the validity of any public act whether proceeding from the highest official or the lowest funcitonary, is a postulate of our system of government. That is to manifest fealty to the rule of law, with priority accorded to that which occupies the topmost rung in the legal hierarchy. ... (36 SCRA, 228, 234, italics Ours)

A contrary view would lead to disastrous consequences for, in the words of Chief Justice Cox of the Supreme Court of Indiana in Ellingham v. Dye, (supra, p. 7) liberty and popular sovereignty are not meant to give rein to passion or thoughtless impulse but to allow the exercise of power by the people for the general good by tistlercoitaitt restraints of law.³ . The true question before Us is is one of power. Does the incumbent President of the Philippines possess constituent powers? Again, the negative answer is explained in detail in the dissenting opinion of Justice Teehankee.

Respondents would justify the incumbent President's exercise of constituent powers on theory that he is vested with legislative powers as held by this Court in Benigno S. Aquino, Jr., et al. vs. Commission on Elections, et al., L-40004, January 31, 1975. 1 wish to stress that although in my separate opinion in said case I agreed that Section 3 (2) of the Transitory provisions grants to the incumbent President legislative powers, I qualified my statement as follows:

.... As to, whether, or not, this unlimited legislative qqqjwwel of the President continues by exist even after the ratification of the Constitution is a matter which I am not ready to concede at the moment, and which at any rate I believe is not essential in resolving this Petition for reasons to be given later. Nonetheless, I hold the view that the President is empowered to issue proclamations, orders, decrees, etc. to carry out and implement the objectives of the proclamation of martial law be it under the 1935 or 1973 Constitution, and for the orderly and efficient functioning of the government, its instrumentalities, and agencies. This grant of legislative power is necessary to fill up a vacuum during the transition period when the interim National Assembly is not yet convened and functioning, for otherwise, there will be a disruption of official functions resulting in a collapse of the government and of the existing social order. (62 SCRA, pp. 275,347)

I believe it is not disputed that legislative power is essentially different from constituent power; one does not encompass the other unless so specified in the Charter, and the 1973 Constitution contains provisions in this regard. This is well-explained in Justice Teehankee's Opinion. The state of necessity brought about by the current political situation, invoked by the respondents, provides no source of power to propose amendments to the existing Constitution. Must we "bend the Constitution to suit the law of the hour or cure its defects "by inflicting upon it a wound which nothing can heal commit one assault after the other "until all respect for the fundamental law is lost and the powers of government are just what those in authority please to call them?'"⁵ Or can we now ignore what this Court, speaking through Justice Barredo, said in Tolentino vs. Comelec:

... let those who would put aside, invoking grounds at best controversial, any mandate of the fundamental law purportedly by order to attain some laudable objective bear in mind that someday somehow others with purportedly more laudable objectives may take advantages of the precedent in 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. ⁶

Respondents emphatically assert that the final word is the people's word and that ultimately it is in the hands of the people where the final decision rests. (Comment, pp. 18, 19, 22) Granting in gratia argument that it is so, let it be an expression of the will of the people a normal political situation and not under the aegis of martial rule for as I have stated in Aquino vs. Comelec, et al., supra, a referendum (and now a plebiscite) held under a regime of martial law can be of no far reaching significance because it is being accomplished under an atmosphere or climate of fear as it entails a wide area of curtailment and infringement of individual rights, such as, human liberty, property rights, rights of free expression and assembly, protection against unreasonable searches and seizures, liberty of abode and of travel, and so on.

4. The other issues such as the sufficiency and proper submission of the proposed amendments for ratification by the people are expounded in Justice Teehankee's Opinion. I wish to stress indeed that it is incorrect to state that the thrust of the proposed amendments is the abolition of the interim National Assembly and its substitution with an "interim Batasang Pambansa their in by in Proposed amendment No. 6 will permit or allow the concentration of power in one man - the Executive - Prime Minister or President or whatever you may call him - for it gives him expressly (which the 1973 Constitution or the 1935 Constitution does not) legislative powers even during the existence of the appropriate legislative body, dependent solely on the executive's judgment on the existence of a grave emergency or a threat or imminence thereof **

I must be forgiven if, not concerned with the present, I am haunted however by what can happen in the future, when we shall all be gone. Verily, this is a matter of grave concern which necessitates full, mature, sober deliberation of the people but which they can do only in a climate of freedom without the restraints of martial law. I close, remembering what Claro M. Recto, President of the Constitutional Convention which drafted the 1935 Philippine Constitution, once said: .

... Nor is it enough that our people possess a written constitution in order that their government may be called constitutional. To be deserving of this name, and to drive away all lanirer of anarchy as well as of dictatorship whether by one man or a few, it is necessary that both the government authorities and the people faithfully observe and obey the constitution, and that the citizens be duly conversant not only with their rights but also with their duties...⁷

Jose P. Laurel who served his people as Justice of the Supreme Court of this country gave this reminder; the grave and perilous task of halting transgressions and vindicating cherished rights is reposed mainly oil the Judiciary and therefore let the Courts be the vestal keepers of the purity and sanctity of our Constitution.' On the basis of the foregoing, I vote to declare Presidential Decrees Nos. 991 and 1033 unconstitutional and enjoin the implementation thereof.

CONCEPCION JR., J., concurring:

I vote for the dismissal of the petitions.

1. The issue is not political and therefore justiciable.

The term "political question", as this Court has previously defined, refers to those questions which, under the constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the Legislature or executive branch of the Government. It is concerned with the issues dependent upon the wisdom, not legality, of a particular measure.¹

Here, the question raised is whether the President has authority to propose to the people amendments to the Constitution which the petitioners claim is vested solely upon the National Assembly, the constitutional convention called for the purpose, and the by the National Assembly. This is not a political question since it involves the determination of conflicting claims of authority under the constitution.

In Gonzales vs. Comelec, 2 this Court, resolving the issue of whether or not a Resolution of Congress, acting as a constituent assembly, violates the Constitution, ruled that the question is essentially justiciable, not political, and hence, subject to judicial review.

In Tolentino vs. Comelec 3 this Court finally dispelled all doubts as to its position regarding its jurisdiction vis-a-vis the constitutionality of the acts of Congress, acting as a constituent assembly, as well as those of a constitutional convention called for the purpose of proposing amendments to the constitution. Insofar as observance of constitutional provisions on the procedure for amending the constitution is concerned, the issue is cognizable by this Court under its powers of judicial review.

2. As to the merits, a brief backdrop of the decision to hold the referendum-plebiscite will help resolve the issue. It is to be noted that under the 1973 Constitution, an interim National Assembly was organized to bring about an orderly transition from the presidential to the parliamentary system of government.' The people, however, probably distrustful of the members who are old time politicians and constitutional delegates who had voted themselves by to membership in the interim National Assembly, voted against the convening of the said interim assembly for at least seven years thus creating a political stalemate and a consequent delay' in the transformation of the government into the parliamentary system. To resolve the impasse, the President, at the instance of the barangays and sanggunian assemblies through their duly authorized instrumentalities who recommended a study of the feasibility of abolishing and replacing the by interim National Assembly with another interim body truly representative of the people in a reformed society, issued Presidential Decree No. 991, on September 2, 1976, calling for a national referendum on October -16, 1976 to ascertain the wishes of the people as to the ways and means that may be available to attain the objective; providing for a period of educational and information campaign on the issues; and establishing the mechanics and manner for holding thereof. But the people, through their barangays, addressed resolutions to the Batasang Bayan, expressing their desire to have the constitution amended, thus prompting the President to issue Presidential Decree No. 1033, stating the questions to @ submitted to the people in the referendum-plebiscite on October 16,1976.

As will be seen, the authority to amend the Constitution was removed from the interim National Assembly and transferred to the seat of sovereignty itself. Since the Constitution emanates from the people who are the repository of all political powers, their authority to amend the Constitution through the means they have adopted, aside from those mentioned in the Constitution, cannot be gainsaid. Not much reflection is also needed to show that the President did not exercise his martial law legislative powers when he proposed the amendments to the Constitution. He was merely acting as an instrument to carry out the will of the people. Neither could he convene the interim National Assembly, as suggested by the petitioners, without doing violence to the people's will expressed overwhelmingly when they decided against convening the interim assembly for at least seven years.

3. The period granted to the people to consider the proposed amendments is reasonably long and enough to afford intelligent discussion of the issues to be voted upon. PD 991 has required the barangays to hold assemblies or meetings to discuss and debate on the referendum questions, which in fact they have been doing. Considering that the proposed amendments came from the representatives of the people themselves, the people must have already formed a decision by this time on what stand to take on the proposed amendments come the day for the plebiscite. Besides, the Constitution itself requires the holding of a plebiscite for the ratification of an amendment not later than three (3) months after the approval of such amendment or revision but without setting a definite period within which such plebiscite shall not be held. From this I can only conclude that the framers of the Constitution desired that only a short period shall elapse from the approval of such amendment or resolution to its ratification by the people.

Footnotes

1 Sec. 3, PD 991, September 2, 1976.

2 SEC. 4 Who shall participate.-Every Filipino citizen, literate or not, fifteen years of age or over who has resided in the barangay for at least six months shall participate in the consultation in his barangay. Provided, however, That any person who may not be able to participate in the consultations of his barangay may do so in any barangay member shall participate in more than one barangay consultation.

3 SEC. 15. The National Assembly upon special call by the interim Prime Minister, may, by a majority vote of all its Members, propose amendments to this Constitution. Such amendments shall take effect when ratified in accordance with Article Sixteen thereof."

4 Pascual v. Secretary of Public Works, 110 Phil. 331 (1960).

5 Section 18.

6 Section 5.

7 Tan v. Macapagal, L-34161, Feb. 29, 1972, 43 SCRA 677, Fernando, J., ponente. See also Standing to Secure Judicial Review, Jaffe, 74 Harvard Law Review 1265 (May 1961).

8 Concurring and dissenting opinion of Justice Fernando in the Plebiscite Cases (Planas v. Comelec, 49 SCRA 105). See Martial Law and the New Society in the Philippines, Supreme Court, 1976, at 152.

9 Orfield Amending the Federal Constitution, 111.

10 Separate Opinion of Justice Concepcion in the Ratification Casts v. the Executive Secretary 50 SCRA 30), Martial Law and the New Society in the Philippines, 1976, Supreme Court, 210-224, quoting Tanada v. Cuenco, 103 Phil. 1051.

11 See Martial Law and the New Society in the Philippines, Supreme Court, 1976, at 121.

12 Idem, at 210.

13 The view of the Chief Justice was shared by Justices Makalintal (later Chief Justice), Zaldivar, Castro (present Chief Justice), Fernando, and Teehankee. Justice Barredo qualified his vote, stating that "inasmuch as it is claimed that there has been approval by the people, the Court may inquire into the question of whether or not there has actually been such an approval, and, in the affirmative, the Court should keep its hands-off out of respect to the people's will, but, in the negative, the Court may determine from both factual and legal angles whether or not Article XV of the 1935 Constitution has been complied with." Justices Makasiar, Antonio and Esguerra hold that the issue is political and "beyond the ambit of judicial inquiry."

14 62 SCRA 275, Referendum Case, Martial Law and the New Society in the Philippines, Supreme Court, 1976, at 1071.

15 Idem, at 10791081.

16 In the United States, all amendments to the Federal constitution, except the Twenty-first Amendment, had been proposed by the U.S. Congress, Modern Constitutional Law, Antieau Vol. 2,1969 ed., at 482.

17 The Amending of the Federal Constitution by Orfield 1942, 48-53; 103-105.

18 Black's Constitutional Law, Hornkbook series, at 42.

19 Hollingsworth v. Virginia, 3 Dall 378.

20 There are 3 types of crisis in the life of a democratic nation. First is particularly a war to repel invasions, when a state must convert its peacetime political and social order into a wartime fighting machine and overmatch the skill and efficiency of the enemy. Second, is rebellion, when the authority of a constitutional government is resisted openly by a large numbers of its citizens who are engaged in violent insurrection against the enforcement of its laws or are bent on capturing it illegally or even destroying it altogether. Third is economic depression-a crisis greater than war. Rossiter, Constitutional Dictatorship, at 6.

21 Constitutional Dictatorship by Clinton Rossiter, 288-290.

22 Corwin, The President Office and Powers, at 371.

23 See Separate Opinion of the Chief Justice (the Justice Castro in the Referendum Case (Aquino v. Comelec), at p. 1084, Martial Law and the New Society in the Philippines, Supreme Court, 1976.

26 Orfield, Amending the Federal Constitution, at 55.

27 Daily Express, Sept. 27,1976; Times Journal, Sept. 17, 1976.

28 Sunday Express, September 23, 1976.

29 Daily Express, September 23, 1976.

30 Section 1, Article II, 1973 Constitution.

31 See Orfield, Amending the Federal Constitution, 140-143. The first meaning includes all persons. living within the state during the whole time of the existence of the state; the second, the sum of all individuals as an organized group living within the state at the same time: and the third, the organized group of individuals living the state with the exception of the government.

32 Friedrich, The Philosophy of Law in Historical Perspective, 1963, at 221.

33 Orfield Amending the Federal Constitution, at 105.

34 Abrams v. United States, 250 U.S. 616, 630.

35 Op Cit., at 221.

39 Separate opinion of Justice Palma in the Referendum Case (Aquino v. COMELEC), at 1135, Martial Law and the New Society in the Philippines, 1976, Supreme Court.

40 Separate opinion of Justices Makalintal and Castro in the Ratification Case (Javellana v. The Executive Secretary, 50 SCRA 30), at 292-293, Martial Law and the New Society in the Philippines

41 Sec. 1, Article VI, 1973 Constitution.

42 Daily Express, September 29, 1976.

43 See Times Journal, September 30, 1976.

44 Times journal, October 2, 1976.

45 See Martial Law and the New Society, 1976, Supreme Court, at 1082-83.

46 307 U.S. 433, see Cases in Constitutional Law, 3rd ed., Cushman and Cushman, 12-13.

47 Dillon v. Gloss, 256 U.S. 368.

48 Willoughby on the Constitution of the Untied States, Vol. 1,595-96.

L-35925, January 22, 1973, 49 SCRA 105. The other cases disposed of by the Court are not referred to.

2 L-36142, March 31, 1973, 50 SCRA 30. Again, no reference is made to the other petitions raising the same question as to te validity of Proclamation No. 1102 announcing the ratification of the Constitution proposed by the Constitutional Convention.

3 L-35546, September 17, 1974, 59 SCRA 183. It must be noted that there were other petitions decided likewise seeking the nullification of Proclamation No. 1081 declaring martial law.

4 L-4004, January 31, 1975, 62 SCRA 275. This decision affirmed the power of the incumbent President to issue decrees having the force and effect of law. There was in the main opinion in this case, penned by Justice Makasiar, an explicit recognition that the incumbent President possesses legislative competence so that during the period of Martial Law he could assure "the security and preservation of the Republic, ... the defense of the political and social liberties of the people and... 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 ..." (At 298) Justices Antonio, Esguerra, Fernandez, Munoz Palma and Aquino concurred, although in a separate opinion, Justice Munoz Palma qualified it by saying that the grant of legislative power "is necessarily to fill up a vacuum during the transition period when the interim National Assembly is not yet convened and functioning, for otherwise, there will be a disruption of official functions resulting in a collapse of the government and of the existing social order." (At 347) There was likewise a concurring opinion by the then Justice, now Chief Justice Justice Makalintal and Justices Barredo, Antonio, Esguerra and Fernandez concurred with this opinion. In a concurring and dissenting opinion, Justice Teehankee would confine "his legislative and appropriation powers under martial law ... to the law of necessity of preservation of the state which gave rise to its proclamation (including appropriations for operations of the government and its agencies and instrumentalities)." (At 316-317) The writer of this opinion had his own concurrence and predicated his vote without an expression of his views as to the grant of legislative power to the President. "

5 L-37364, May 9,1975, 63 SCRA 546. The Court ruled in this case that military commissions may try civilians for certain specified offenses according to applicable presidential decrees.

6 SCRA 183, 281-309.

7 Ibid, 301.

8 Ex parte Milligan is reported in 4 Wall. 2 (1966). It was likewise noted that Story, the first eminent commentator in American constitutional law made no reference to martial law. Cooley's work, now in its 8th edition, is entitled Constitutional Limitations while that of Watson bears the title of Constitution of the United States. At 302

9 Ibid. Sterling is found in 287 US 378 (1932) and Duncan in 327 US 304 (1946). Among the casebooks on constitutional law referred to are those by Dodd (1949), Dowling (1950), Sholley (1951), Frank (1932), Freund and Associates (1954), Barrett and Associates (1963), Kauper (1966), Lockhart and Associates (1970).

10 Ibid. It may be observed parenthetically that when I collaborated with Senator Lorenzo M. Tanada in the Constitution of the Philippines Annotated published almost thirty Nears ago in 1947 (at 588-589) with two later editions that came out in 1949 (at 694-695) and 1993 (at 1013-1014), it was Willoughby's view that was cited.

11 Ibid. 302-303. This was the formulation of Burdick in his The Law of the American Constitution, 261 (1922).

12 Ibid. 303.

13 Ibid. The citation is from Willoughby on the Constitution of the United States, 2nd ed. 1591 (1929).

14 Ibid. The excerpt is from Williams on Constitutional Law, 449 (1936). It is to be made clear that in our Constitution, it is only the privilege of the writ, not the writ itself that is suspended.

15 Ibid. :30:3-304. The quotation is from volume 2 of the treatise of Schwartz on the American Constitution, entitled The Powers of Government 244 (1963) that the citation came from.

16 Ibid. The reference is to Dicey on the Law of the Constitution, 287-288 (1962).

17 327 US 304, 322.

18 Cf. Aquino v. Commission on Elections, 62 SCRA 275.

19 Ibid, 305. The citation from Rossiter is from the first chapter of his work on Constitutional Dictatorship. 9 (1948).

20 Ibid. 306.

21 SCRA 275, 298. Justice Makasiar cited pages 7 and 303 of Rossiter's Constitutional Dictatorship.

22 The extensive citation in the opinion of Justice martin is found in Chapter XIX of Rossiter's opus entitled Constitutional Dictatorship: The Forms, the Dangers, the Criteria, the Future. that is the last chapter of his work, after a rather exhaustive discussion of what are referred to by him as Constitutional Dictatorship in Germany (Chapters III to V), Crisis Government in the French Republic (Chapters VI to IX), Crisis Government in the United States (chapters XIV to XVII).

23 Ibid. 294.

24 Imelda Romualdez Marcos, The Filipino Between Two Worlds, Philippines Daily Express lo, October 9,1976.

25 Ibid.

26 Corwin, The President Office and Powers, 4th rev. ed., 139-140 (1957).

27 According to Art XVII, Sec. 15 of the present Constitution: The interim National upon special call by the interim Prime Minister, a majority vote of all its Members, propose to amendments to this Constitution. Such amendments shall take effect when ratified in accordance with Article Sixteen hereof."

28 He was assisted by Assistant Solicitor General Hugo E. Gutierrez Jr. and Trial Attorney Nannette R. de Castro.

29 Malcolm and Laurel, Philippine Constitutional Law, 3rd ed., 20-21 (1936).

30 Malcolm and Laurel, Cases on Constitutional Law (1936).

31 Ibid. Ellingham v. Dye is reported in 99 NE 1 (1912).

32 Philippine Political Law, llth ed. 63 (1962). It is precisely Ellingham v. Dye that was cited.

33 Justice Makasiar referred to Article XVII, Sec. 3, par. 2 of the present Constitution. The present Chief Justice would include paragraph 1 to the above. Vide in. 4.

34 L-34150, October 16,1951, 41 SCRA 702.

35 According to Article 11, Section 1 of the present Constitution: The Philippines is a republican state. Sovereignty resides in the people and all government authority emanates from them."

36 Cf. Crammer v. Thorson 68 NE 202 (1896): Edwards v. Lesueur 83 SW 1130 (1896); People v. Mills, 70 P. 322 (1902); Treadgill v. Cross, 109 P 558 (1910); Scott v. James, 76 SE 283 (1912); Weinland v. Fulton 121 NE 816 (1918); Gray v. Mass, 156 So. 262 (1934); Gray v. Winthrop, 156 So. 270 (1934); State v. Burns, 172 SW 259 (1943), Hillman v. Stockett 39 A2 803 (1944).

37 L-19313, January 19,1962,4 SCRA 1.

38 Ibid, 17-18.

39 L-21897, October 22, 1964, 9 SCRA 230.

40 Ibid, 244.

41 50 SCRA 30, 310-333 (1973).

42 59 SCRA 275, 306-315 (1974).

43 Laski, Grammar of Politics, 4th ed., 34 (1937).

44 Corwin, The Higher Law Background of American Constitutional Law, Selected Essays on Constitutional Law 3 (1938).

45 Lerner, Ideas are Weapons, 470 (1939).

46 Bryn-Jones, Toward a Democratic New Order 23 (1945).

47 McIver, The Web of Government 84 (1947).

48 L-28916, November 9, 1967, 21 SCRA 774.

49 L-23415, October 16, 1971, 41 SCRA 702.

50 L-35925, January 22, 1973, 49 SCRA 105.

51 L-36142, March 31, 1973, 50 SCRA 30. If I read correctly the concurring opinion of the then Chief Justice Makalintal and the now Chief Justice Castro, then an Associate Justice, where the question raised concerns the adoption and enforcement of a new Constitution, then it may be looked upon as political.

52 78 Phil. 1 (1947). To be more precise, there were only five Justices, headed by Justice Tuason, with the then Chief Justice Moran and the then Justices Paras, later himself a Chief Justice, Hilado, Pablo and Hontiveros, who were of that persuasion. The other two votes necessary for a majority for dismissing the prohibition petition were supplied by Justice, also later a Chief Justice, Bengzon and Justice Padilla.

53 307 U.S. 433. In the concurring opinion of Justice Black, with Justices Roberts, Frankfurther and Douglas in agreement, he made the categorial statement that such process "is 'political' in its entirety, from submission until an amendment becomes part of the Constitution, and is not subject to judicial guidance, control or interference at any point." At 459.

54 Cf. Hatcher v. Meredith, 173 SW 2d 665 (1943); In re Application of Borg, 35 A2d 220 (1944); Renck v. Superior Court of Maricopa County, 187 P2d 656 (1947); In re Opinion of Justices, 47 SO2d 643 (1950); Funk v. Fielder, 243 SW2d 474 (1951); Baum v. Newbry 267 P2d 220 (1954); Boe v. Foss, 77 NW2d 1 (1956); Goldner v, Adams, 167 SO2d 575 (1964); Hamilton v. City of Shreveport, 174 SO2d 529 (1965).

55 Laurel, S., ed., VII Proceedings of the Philippine Constitutional Convention (1934-1935), Appendix L, 800.

56 SCRA 275, 306-315.

1 Article XV, section 1.

2 Article XVI, section 1, paragraphs (1) and (2).

3 Article XVII. section 3 (1).

4 Article XVII, section 15.

5 P.D. No. 991 dated Sept. 2, 1976, as amended by P.D. No. 1031 dated Sept. 22, 1976 and P.D. No. 1033 dated Sept. 22, 1976 "Stating the questions to be submitted to te people i the referendum-plebiscite on October 16, 1976".

6 Art. XV, sec. 1, 1935 Constitution (see Art. XVI, secs. 1 and 2, 1973 Constitution).

7 Resolution on motion for reconsideration in Tolentino vs. Comelec dated Nov. 4, 1971, at page 3.

8 Idem, at page 4.

9 Idem, at page 4

10 Idem, at page 4.

11 Marshall, C.J. in Marburg vs. Madison, 1 Cranch 137(1803).

12 Cooley's Constitutional Limitations, 8th Ed., Vol. 1, p. 81

13 Idem, pp. 87-88.

14 Javellana vs' Exec. Secretary, 50 SCRA 30 (1973).

15 Majority opinion at p.20.

16 21 SCRA 774(1967)

17 Citing Sec.1,Art.VI,1935 Constitution

18 See sec.1,Art. VIII,1973 Constitution

19 Aquino vs. Comelec, 62 SCRA 275 (Jan. 31, 1975);see also Gonzales vs. Comelec, L-40117, Feb. 22, 1975

20 Cooley, Constitutional Limitations, 8th Ed., Vol. 1, p. 224

21 63 Phil. 134(1936).

23 Sunday Express (and Times Journal) issues of August 29, 1976 reported that "(A)s proposed by the sanggunian and barangay national executive committees, the following questions will be submitted in the discussions and referendums:

1 Do you want martial law to be lifted?

2 Do you want to call the interim National Assembly?

3 If not, do you want to call a body with legislative powers?

4 Do you want such body to have full legislative powers?

5 If not, do you want such body to have limited legislative powers as may be determined by the President in a presidential decree?

6 If you want to call a body with certain legislative powers, do you want to grant such body authority to propose amendments to the Constitution to make it conform with the aims to the New Society?

7 If you want to call the body referred to questions 4, 5, and 6, do you want the members of such body elected by the people through the barangays in accordance with an election code to be promulgated in a decree by the President?

"The barangay and sanggunian executive committees informed the President that it was 'the thing of the barangays to undertake the referendum on an informal manner and that they opted to devise their own ballots, tally sheets, and all other necessary from.'

"As proposed, and approved by the President, the referendum will be done by secret ballot, except in small barangays where the residents can be gathered in one assembly to decide on the issues by roll call vote if desired by residents.

"The canvassing will be done by the barangay referendum committee."

24 "The other issue to be taken up in the public discussions is the question on whether the interim national assembly should be convened or not.

"This question was asked in two previous referenda-in 1973 and 1975 - and was rejected each time by the people

"The barangays, however, of feel it is time to again ask the people's opinion of this matter." (Phil. Express issue of Aug. 30,1976).

25 Art. IX, see. 1, 1973 Constitution.

26 Cooleys Constitutional Limitations, 8th Ed. Vol. 2, p. 1349, citing Chief Justice Davis in Gibson vs. Mason, 5 Nev. 293, 291 thus; "The maxim which lies at the foundation of our government is that all political power originates with the people. But since the organization of government it cannot be claimed that either the legislative, executive, or judicial powers, either wholly or in part, can be exercised by them. By the institution of government the people surrender the exercise of all these sovereign functions of government to agents chosen by themselves, who at least theoretically represent the supreme will of their constituents. Thus all power possessed by the people themselves is given and centered in their chosen representatives

27 See fns. 8-10: note in parenthesis supplied.

28 Tolentino vs. Comelec, 41 SCRA 702, 725; emphasis supplied.

29 36 SCRA 228 234 (1970).

30 Resolution denying motion for reconsideration dated Nov. 4, 1971, at page 13.

31 Idem, at page 16 fn. 6.

32 Majority opinion, at page 19.

33 Idem, at page 20.

33* Rodriguez vs. Gella 92 Phil. 603 (1953); see also Araneta vs. Dinglasan, 84 Phil. 368 (1949).

34 Gonzales vs. Comelec, L-40117, Resolution of Feb. 22,1975.

35 In re Egan 8 Fed. Cas. 367, holding that "Martial law is neither more nor less than the will of the general in command of the army- It overreaches and supersedes, all civil law by the exercise of military power.." as cited in the Secretary of Justice's outline of a study on the exercise of Legislative Power by the President under Martial Law, dated Dec. 27, 1972, as reported in Lawyers' Journal, March 31, 1973 issue, p. 90.

36 Cooley's Constitutional Limitations. 8th Ed., Vol. 1, pp.128-129.

37 With the exception of the proposed amendments increasing the membership of the House of Representatives from 120 to 180 and authorizing members of Congress to become Con-Con delegates, which were widely publicized as a result of the court proceedings and decision in Gonzales vs. Comelec, 21 SCRA 774.

38 "Perspectives and Dimensions of Constitutional Reforms" delivered as keynote speech at the National Conference on Constitutional Amendments, July 27,1970.

39 Articles VIII, IX and X, 1973 Constitution.

40 U.P. Professor Perfecto V. Fernandez: Civil Liberties under Martial Law.

41 Louis H. Pollale The Constitution and the Supreme Court, Vol. 1, page 191.

42 Supra, fn. 16.

43 Supra, fn. 28.

44 Sec. Art. VIII, sec. 2 1935 Constitution; Art. X, sec. 5, 1973 Constitution

45 SCRA 30 (1973) and cases cited.

46 Now retired Justices J.B.L. Reyes and Calixto 0. Zaldivar.

47 SCRA at p. 733.

48 21 SCRA at pages 816-817, emphasis copied.

49 From Am. Law Review, 1889, p. 311, citing Ellingham vs. Dye 99 N.E. pp. 4,15; emphasis copied.

50 21 SCRA at p. 817.

51 Phil. Daily Express issue of Oct. 11, 1976 reporting the Comelec's stand that "Young voters, from age 15 to below 18 can vote not only on the question of martial law but also on the question regarding the proposed constitutional amendments".

52 Phil. Daily Express issue of Oct. 3, 1976.

53 Times journal and Phil. Daily Express issues of Oct. 11, 1976.

54 In the Bulletin Today issue of October 2, 1976, the President is quoted as himself abstaining from the debates: "I am trying to steer clear of the debates because it involves martial law, and it involves, of course, me personally. So the less I say about it, the better, I guess, from my point of view".

54* Pres. Marcos' address on observance of the first anniversary of the 1973 Constitution on Jan. 17, 1974; Phil. Labor Relations Journal, Vol. VII, Jan. 1974, p. 6.

55 The resolution gave the same permission to court personnel by a 9 to 1 vote with Justice Makasiar and the writer presenting no objection in the case of personnel as classified civil service employees, while Justice Munoz Palma maintained the same negative vote.

1 Aquino, J. vs Ponce Enrile and other cases, 59 SCRA 183.

2 50 SCRA 30, 209 et seq.

1 Carl Brent Swisher. The Supreme Court in the Modern Role, 1958 ed., p. 173.

2 Melville Fuller Weston, Political questions, 38 Harv. L. Rev., 296, Italics supplied.

3 Tanada v. Cuenco, 103 Phil. 1051, 1057, citing in re McConoughy, 119 NW 408. Italics supplied.

9 Republic Act No. 413.

10 41 SCRA 702,

11 L-40004, January 3l, 1975. 62 SCRA 275.

12 Proclamation No. 1103, January 17,1973.

13 Section 1, Article II, Constitution.

14 Leibholz: Politics and Law, p. 24.

15 Todays Revolution: Democracy, Marcos, pp. 87-88.

16 Mabanag v. Lopez Vito, supra, at page 5, citing Green v. Weller, 32 Miss., 650; note, 10 L.r.a., n.s., 150.

17 John P. wheeler, Jr., Changing the fundamental Law SALIENT ISSUES OF CONSTITUTIONAL REVISION; 1961 ed.

18 Sinco. Philippine Political Law, 10th Ed. p. 48

19 T.S.N. of hearing, October 8,1976, pp. 8,11,12,15.

* p. 716, 1974 Ed., citing B. Schwartz, I The Powers of Government (1963) 10.

xxx xxx xxx

It is well that the powers of the people and their relations to organized society should be understood. No heresy has ever been taught in this country so fraught with evil as the doctrine that the people have a constitutional right to disregard the constitution, and that they can set themselves above the instrumentalities appointed by the constitution for the administration of law. It tends directly to the encouragement of revolution and anarchy. It is incumbent upon all who influence and mold public opinion to repudiate and discountenance so dangerous a doctrine before it bears fruits destructive of republican institutions. It will be well if the people come to understand the difference between natural and constitutional freedom. before license becomes destructive of liberty ." (pp. 611-616)

4 Green castle Township v. Black, 5 Ind.,557, 56,5.

5 Oakley vs. Aspinwall, 3 N.Y., 547,568.

6 Resolution on Motion for Reconsideration, L-34150, November 4, 1971, per Barredo, J., pp 19-20, Supreme Court Decisions, November 1971

6 Whenever in the judgment of the President (Prime Minister there exists a brave emergency or a threat or imminence thereof, or whenever the interim Batasang Pambansa or the regular National Assembly fails or is unable to act adequately on any matter for any reason that in his judgment requires immediate action, he may in order to meet the exigency, issue the necessary decrees, orders or letters of instructions, which shall form part of the law of the land. (Taken from the Barangay Ballot Form distributed by COMELEC for Referendum-Plebiscite, October 16, 1976)

7 Speech upon conferment of the Doctor of Laws, Honoris Causa, by the Manila University, the Lawyers' Journal, June 15, 1936, italics Ours.

8 The Lawyers' Journal, March 15, 1936,

1 Tagada & by Macapagal v. Cuenco, et al.. 103 Phil. 1051

2 L-28196. Nov. 9,1967; 21 SCRA 774.

3 L-34150, Oct. 16, 1971, 41 SCRA 702.

4 Article XVII, Section 1, Constitution.

5 Aquino vs.. Comelec, L-40004, Jan. 31, 1975, 62 SCRA 275, 302.

9 Idem, at page 4.

10 Idem, at page 4.

11 Marshall, C.J. in Marburg vs. Madison, I Cranch 137 (1803).

12 Cooley's Constitutional Limitations, 8th Ed., Vol. 1, p. 81.

Mercado v Tan

2009-12-05T16:38:00.003-08:00

THIRD DIVISION

[G.R. No. 137110. August 1, 2000]

VINCENT PAUL G. MERCADO a.k.a. VINCENT G. MERCADO, petitioner, vs. CONSUELO TAN, respondent.

D E C I S I O N

PANGANIBAN, J.:

A judicial declaration of nullity of a previous marriage is necessary before a subsequent one can be legally contracted. One who enters into a subsequent marriage without first obtaining such judicial declaration is guilty of bigamy. This principle applies even if the earlier union is characterized by statute as “void.”

The Case

Before us is a Petition for Review on Certiorari assailing the July 14, 1998 Decision of the Court of Appeals (CA)[1] in CA-GR CR No. 19830 and its January 4, 1999 Resolution denying reconsideration. The assailed Decision affirmed the ruling of the Regional Trial Court (RTC) of Bacolod City in Criminal Case No. 13848, which convicted herein petitioner of bigamy as follows:

“WHEREFORE, finding the guilt of accused Dr. Vincent Paul G. Mercado a.k.a. Dr. Vincent G. Mercado of the crime of Bigamy punishable under Article 349 of the Revised Penal Code to have been proven beyond reasonable doubt, [the court hereby renders] judgment imposing upon him a prison term of three (3) years, four (4) months and fifteen (15) days of prision correccional, as minimum of his indeterminate sentence, to eight (8) years and twenty-one (21) days of prision mayor, as maximum, plus accessory penalties provided by law.

Costs against accused.”[2]

The Facts

The facts are quoted by Court of Appeals (CA) from the trial court’s judgment, as follows: “From the evidence adduced by the parties, there is no dispute that accused Dr. Vincent Mercado and complainant Ma. Consuelo Tan got married on June 27, 1991 before MTCC-Bacolod City Br. 7 Judge Gorgonio J. Ibañez [by reason of] which a Marriage Contract was duly executed and signed by the parties. As entered in said document, the status of accused was ‘single’. There is no dispute either that at the time of the celebration of the wedding with complainant, accused was actually a married man, having been in lawful wedlock with Ma. Thelma Oliva in a marriage ceremony solemnized on April 10, 1976 by Judge Leonardo B. Cañares, CFI-Br. XIV, Cebu City per Marriage Certificate issued in connection therewith, which matrimony was further blessed by Rev. Father Arthur Baur on October 10, 1976 in religious rites at the Sacred Heart Church, Cebu City. In the same manner, the civil marriage between accused and complainant was confirmed in a church ceremony on June 29, 1991 officiated by Msgr. Victorino A. Rivas, Judicial Vicar, Diocese of Bacolod City. Both marriages were consummated when out of the first consortium, Ma. Thelma Oliva bore accused two children, while a child, Vincent Paul, Jr. was sired by accused with complainant Ma. Consuelo Tan.

“On October 5, 1992, a letter-complaint for bigamy was filed by complainant through counsel with the City Prosecutor of Bacolod City, which eventually resulted [in] the institution of the present case before this Court against said accused, Dr. Vincent G. Mercado, on March 1, 1993 in an Information dated January 22, 1993.

“On November 13, 1992, or more than a month after the bigamy case was lodged in the Prosecutor’s Office, accused filed an action for Declaration of Nullity of Marriage against Ma. Thelma V. Oliva in RTC-Br. 22, Cebu City, and in a Decision dated May 6, 1993 the marriage between Vincent G. Mercado and Ma. Thelma V. Oliva was declared null and void.

“Accused is charged [with] bigamy under Article 349 of the Revised Penal Code for having contracted a second marriage with herein complainant Ma. Consuelo Tan on June 27, 1991 when at that time he was previously united in lawful marriage with Ma. Thelma V. Oliva on April 10, 1976 at Cebu City, without said first marriage having been legally dissolved. As shown by the evidence and admitted by accused, all the essential elements of the crime are present, namely: (a) that the offender has been previously legally married; (2) that the first marriage has not been legally dissolved or in case the spouse is absent, the absent spouse could not yet be presumed dead according to the Civil Code; (3) that he contract[ed] a second or subsequent marriage; and (4) that the second or subsequent marriage ha[d] all the essential requisites for validity. x x x

“While acknowledging the existence of the two marriage[s], accused posited the defense that his previous marriage ha[d] been judicially declared null and void and that the private complainant had knowledge of the first marriage of accused.

“It is an admitted fact that when the second marriage was entered into with Ma. Consuelo Tan on June 27, 1991, accused’s prior marriage with Ma. Thelma V. Oliva was subsisting, no judicial action having yet been initiated or any judicial declaration obtained as to the nullity of such prior marriage with Ma. Thelma V. Oliva. Since no declaration of the nullity of his first marriage ha[d] yet been made at the time of his second marriage, it is clear that accused was a married man when he contracted such second marriage with complainant on June 27, 1991. He was still at the time validly married to his first wife.”[3]

Ruling of the Court of Appeals

Agreeing with the lower court, the Court of Appeals stated:

“Under Article 40 of the Family Code, ‘the absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void.’ But here, the final judgment declaring null and void accused’s previous marriage came not before the celebration of the second marriage, but after, when the case for bigamy against accused was already tried in court. And what constitutes the crime of bigamy is the act of any person who shall contract a second subsequent marriage ‘before’ the former marriage has been legally dissolved.”[4]

Hence, this Petition.[5]

The Issues

In his Memorandum, petitioner raises the following issues:

“A

Whether or not the element of previous legal marriage is present in order to convict petitioner.

“B

Whether or not a liberal interpretation in favor of petitioner of Article 349 of the Revised Penal Code punishing bigamy, in relation to Articles 36 and 40 of the Family Code, negates the guilt of petitioner.

“C

Whether or not petitioner is entitled to an acquittal on the basis of reasonable doubt.”[6]

The Court’s Ruling

The Petition is not meritorious.

Main Issue:Effect of Nullity of Previous Marriage

Petitioner was convicted of bigamy under Article 349 of the Revised Penal Code, which provides:

“The penalty of prision mayor shall be imposed upon any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings.”

The elements of this crime are as follows:

“1. That the offender has been legally married;

2. That the marriage has not been legally dissolved or, in case his or her spouse is absent, the absent spouse could not yet be presumed dead according to the Civil Code;

3. That he contracts a second or subsequent marriage;

4. That the second or subsequent marriage has all the essential requisites for validity.”[7]

When the Information was filed on January 22, 1993, all the elements of bigamy were present. It is undisputed that petitioner married Thelma G. Oliva on April 10, 1976 in Cebu City. While that marriage was still subsisting, he contracted a second marriage, this time with Respondent Ma. Consuelo Tan who subsequently filed the Complaint for bigamy.

Petitioner contends, however, that he obtained a judicial declaration of nullity of his first marriage under Article 36 of the Family Code, thereby rendering it void ab initio. Unlike voidable marriages which are considered valid until set aside by a competent court, he argues that a void marriage is deemed never to have taken place at all.[8] Thus, he concludes that there is no first marriage to speak of. Petitioner also quotes the commentaries[9]of former Justice Luis Reyes that “it is now settled that if the first marriage is void from the beginning, it is a defense in a bigamy charge. But if the first marriage is voidable, it is not a defense.”

Respondent, on the other hand, admits that the first marriage was declared null and void under Article 36 of the Family Code, but she points out that that declaration came only after the Information had been filed. Hence, by then, the crime had already been consummated. She argues that a judicial declaration of nullity of a void previous marriage must be obtained before a person can marry for a subsequent time.

We agree with the respondent.

To be sure, jurisprudence regarding the need for a judicial declaration of nullity of the previous marriage has been characterized as “conflicting.”[10] In People v. Mendoza,[11] a bigamy case involving an accused who married three times, the Court ruled that there was no need for such declaration. In that case, the accused contracted a second marriage during the subsistence of the first. When the first wife died, he married for the third time. The second wife then charged him with bigamy. Acquitting him, the Court held that the second marriage was void ab initio because it had been contracted while the first marriage was still in effect. Since the second marriage was obviously void and illegal, the Court ruled that there was no need for a judicial declaration of its nullity. Hence, the accused did not commit bigamy when he married for the third time. This ruling was affirmed by the Court in People v. Aragon,[12] which involved substantially the same facts.

But in subsequent cases, the Court impressed the need for a judicial declaration of nullity. In Vda de Consuegra v. GSIS,[13] Jose Consuegra married for the second time while the first marriage was still subsisting. Upon his death, the Court awarded one half of the proceeds of his retirement benefits to the first wife and the other half to the second wife and her children, notwithstanding the manifest nullity of the second marriage. It held: “And with respect to the right of the second wife, this Court observes that although the second marriage can be presumed to be void ab initio as it was celebrated while the first marriage was still subsisting, still there is need for judicial declaration of such nullity.”

In Tolentino v. Paras,[14] however, the Court again held that judicial declaration of nullity of a void marriage was not necessary. In that case, a man married twice. In his Death Certificate, his second wife was named as his surviving spouse. The first wife then filed a Petition to correct the said entry in the Death Certificate. The Court ruled in favor of the first wife, holding that “the second marriage that he contracted with private respondent during the lifetime of the first spouse is null and void from the beginning and of no force and effect. No judicial decree is necessary to establish the invalidity of a void marriage.”

In Wiegel v. Sempio-Diy,[15] the Court stressed the need for such declaration. In that case, Karl Heinz Wiegel filed an action for the declaration of nullity of his marriage to Lilia Olivia Wiegel on the ground that the latter had a prior existing marriage. After pretrial, Lilia asked that she be allowed to present evidence to prove, among others, that her first husband had previously been married to another woman. In holding that there was no need for such evidence, the Court ruled: “x x x There is likewise no need of introducing evidence about the existing prior marriage of her first husband at the time they married each other, for then such a marriage though void still needs, according to this Court, a judicial declaration of such fact and for all legal intents and purposes she would still be regarded as a married woman at the time she contracted her marriage with respondent Karl Heinz Wiegel; x x x.”

Subsequently, in Yap v. CA,[16] the Court reverted to the ruling in People v. Mendoza, holding that there was no need for such declaration of nullity.

In Domingo v. CA,[17] the issue raised was whether a judicial declaration of nullity was still necessary for the recovery and the separation of properties of erstwhile spouses. Ruling in the affirmative, the Court declared: “The Family Code has settled once and for all the conflicting jurisprudence on the matter. A declaration of the absolute nullity of a marriage is now explicitly required either as a cause of action or a ground for defense; in fact, the requirement for a declaration of absolute nullity of a marriage is also for the protection of the spouse who, believing that his or her marriage is illegal and void, marries again. With the judicial declaration of the nullity of his or her first marriage, the person who marries again cannot be charged with bigamy.”[18]

Unlike Mendoza and Aragon, Domingo as well as the other cases herein cited was not a criminal prosecution for bigamy. Nonetheless, Domingo underscored the need for a judicial declaration of nullity of a void marriage on the basis of a new provision of the Family Code, which came into effect several years after the promulgation of Mendoza and Aragon.

In Mendoza and Aragon, the Court relied on Section 29 of Act No. 3613 (Marriage Law), which provided:

“Illegal marriages. — Any marriage subsequently contracted by any person during the lifetime of the first spouse shall be illegal and void from its performance, unless:

(a) The first marriage was annulled or dissolved;

(b) The first spouse had been absent for seven consecutive years at the time of the second marriage without the spouse present having news of the absentee being alive, or the absentee being generally considered as dead and believed to be so by the spouse present at the time of contracting such subsequent marriage, the marriage as contracted being valid in either case until declared null and void by a competent court."

The Court held in those two cases that the said provision “plainly makes a subsequent marriage contracted by any person during the lifetime of his first spouse illegal and void from its performance, and no judicial decree is necessary to establish its invalidity, as distinguished from mere annulable marriages.”[19]

The provision appeared in substantially the same form under Article 83 of the 1950 Civil Code and Article 41 of the Family Code. However, Article 40 of the Family Code, a new provision, expressly requires a judicial declaration of nullity of the previous marriage, as follows:

“ART. 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such marriage void.”

In view of this provision, Domingo stressed that a final judgment declaring such marriage void was necessary. Verily, the Family Code and Domingo affirm the earlier ruling in Wiegel. Thus, a Civil Law authority and member of the Civil Code Revision Commitee has observed:

“[Article 40] is also in line with the recent decisions of the Supreme Court that the marriage of a person may be null and void but there is need of a judicial declaration of such fact before that person can marry again; otherwise, the second marriage will also be void (Wiegel v. Sempio-Diy, Aug. 19/86, 143 SCRA 499, Vda. De Consuegra v. GSIS, 37 SCRA 315). This provision changes the old rule that where a marriage is illegal and void from its performance, no judicial decree is necessary to establish its validity (People v. Mendoza, 95 Phil. 843; People v. Aragon, 100 Phil. 1033).”[20]

In this light, the statutory mooring of the ruling in Mendoza and Aragon – that there is no need for a judicial declaration of nullity of a void marriage -- has been cast aside by Article 40 of the Family Code. Such declaration is now necessary before one can contract a second marriage. Absent that declaration, we hold that one may be charged with and convicted of bigamy.

The present ruling is consistent with our pronouncement in Terre v. Terre,[21] which involved an administrative Complaint against a lawyer for marrying twice. In rejecting the lawyer’s argument that he was free to enter into a second marriage because the first one was void ab initio, the Court ruled: “for purposes of determining whether a person is legally free to contract a second marriage, a judicial declaration that the first marriage was null and void ab initio is essential.” The Court further noted that the said rule was “cast into statutory form by Article 40 of the Family Code.” Significantly, it observed that the second marriage, contracted without a judicial declaration that the first marriage was void, was “bigamous and criminal in character.”

Moreover, Justice Reyes, an authority in Criminal Law whose earlier work was cited by petitioner, changed his view on the subject in view of Article 40 of the Family Code and wrote in 1993 that a person must first obtain a judicial declaration of the nullity of a void marriage before contracting a subsequent marriage:[22]

“It is now settled that the fact that the first marriage is void from the beginning is not a defense in a bigamy charge. As with a voidable marriage, there must be a judicial declaration of the nullity of a marriage before contracting the second marriage. Article 40 of the Family Code states that x x x. The Code Commission believes that the parties to a marriage should not be allowed to assume that their marriage is void, even if such is the fact, but must first secure a judicial declaration of nullity of their marriage before they should be allowed to marry again. x x x.”

In the instant case, petitioner contracted a second marriage although there was yet no judicial declaration of nullity of his first marriage. In fact, he instituted the Petition to have the first marriage declared void only after complainant had filed a letter-complaint charging him with bigamy. By contracting a second marriage while the first was still subsisting, he committed the acts punishable under Article 349 of the Revised Penal Code.

That he subsequently obtained a judicial declaration of the nullity of the first marriage was immaterial. To repeat, the crime had already been consummated by then. Moreover, his view effectively encourages delay in the prosecution of bigamy cases; an accused could simply file a petition to declare his previous marriage void and invoke the pendency of that action as a prejudicial question in the criminal case. We cannot allow that.

Under the circumstances of the present case, he is guilty of the charge against him.

Damages

In her Memorandum, respondent prays that the Court set aside the ruling of the Court of Appeals insofar as it denied her claim of damages and attorney’s fees.[23]

Her prayer has no merit. She did not appeal the ruling of the CA against her; hence, she cannot obtain affirmative relief from this Court.[24] In any event, we find no reason to reverse or set aside the pertinent ruling of the CA on this point, which we quote hereunder:

“We are convinced from the totality of the evidence presented in this case that Consuelo Tan is not the innocent victim that she claims to be; she was well aware of the existence of the previous marriage when she contracted matrimony with Dr. Mercado. The testimonies of the defense witnesses prove this, and we find no reason to doubt said testimonies.

x x x x x x x x x

“Indeed, the claim of Consuelo Tan that she was not aware of his previous marriage does not inspire belief, especially as she had seen that Dr. Mercado had two (2) children with him. We are convinced that she took the plunge anyway, relying on the fact that the first wife would no longer return to Dr. Mercado, she being by then already living with another man.

“Consuelo Tan can therefore not claim damages in this case where she was fully conscious of the consequences of her act. She should have known that she would suffer humiliation in the event the truth [would] come out, as it did in this case, ironically because of her personal instigation. If there are indeed damages caused to her reputation, they are of her own willful making.”[25]

WHEREFORE, the Petition is DENIED and the assailed Decision AFFIRMED. Costs against petitioner.

SO ORDERED.

Melo, (Chairman), Purisima, and Gonzaga-Reyes, JJ., concur.

Vitug, J., see concurring and dissenting opinion.

CONCURRING AND DISSENTING OPINION

VITUG, J.:

At the pith of the controversy is the defense of the absolute nullity of a previous marriage in an indictment for bigamy. The majority opinion, penned by my esteemed brother, Mr. Justice Artemio V. Panganiban, enunciates that it is only a judicially decreed prior void marriage which can constitute a defense against the criminal charge.

The civil law rule stated in Article 40 of the Family Code is a given but I have strong reservations on its application beyond what appears to be its expressed context. The subject of the instant petition is a criminal prosecution, not a civil case, and the ponencia affirms the conviction of petitioner Vincent Paul G. Mercado for bigamy.

Article 40 of the Family code reads:

“ART. 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void.”

The phrase “for purposes of remarriage” is not at all insignificant. Void marriages, like void contracts, are inexistent from the very beginning. It is only by way of exception that the Family code requires a judicial declaration of nullity of the previous marriage before a subsequent marriage is contracted; without such declaration, the validity and the full legal consequence of the subsequent marriage would itself be in similar jeopardy under Article 53, in relation to Article 52, of the Family Code. Parenthetically, I would daresay that the necessity of a judicial declaration of nullity of a void marriage for the purpose of remarriage should be held to refer merely to cases where it can be said that a marriage, at least ostensibly, had taken place. No such judicial declaration of nullity, in my view, should still be deemed essential when the “marriage,” for instance, is between persons of the same sex or when either or both parties had not at all given consent to the “marriage.” Indeed, it is likely that Article 40 of the Family Code has been meant and intended to refer only to marriages declared void under the provisions of Articles 35, 36, 37, 38 and 53 thereof.

In fine, the Family Code, I respectfully submit, did not have the effect of overturning the rule in criminal law and related jurisprudence. The Revised Penal Code expresses:

“Art. 349. Bigamy.---The penalty of prision mayor shall be imposed upon any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings.

Surely, the foregoing provision contemplated an existing, not void, prior marriage. Covered by article 349 would thus be, for instance, a voidable marriage, it obviously being valid and subsisting until set aside by a competent court. As early as People vs. Aragon,1 this Court has underscored:

“xxx Our Revised Penal Code is of recent enactment and had the rule enunciated in Spain and in America requiring judicial declaration of nullity of ab initio void marriages been within the contemplation of the legislature, an express provision to that effect would or should have been inserted in the law. In its absence, we are bound by said rule of strict interpretation.”

Unlike a voidable marriage which legally exists until judicially annulled (and therefore not a defense in bigamy if the second marriage were contracted prior to the decree of annulment), the complete nullity, however, of a previously contracted marriage, being a total nullity and inexistent, should be capable of being independently raised by way of a defense in a criminal case for bigamy. I see no incongruence between this rule in criminal law and that of the Family Code, and each may be applied within the respective spheres of governance.

Accordingly, I vote to grant the petition.

1 100 Phil. 1033.

[1]Penned by J. Salome A. Montoya, Division chairman; with the concurrence of JJ Conchita Carpio Morales and Bernardo P. Abesamis, members.

[2]RTC Decision, pp. 16-17; rollo, pp. 136-137. This was written by Judge Edgar G. Garvilles.

[3]CA Decision, pp. 2-4; rollo, pp. 45-47.

[4]Ibid., p. 6; rollo, p. 13.

[5]The case was deemed submitted for resolution on May 26, 2000, upon receipt by this Court of the OSG Memorandum signed by Sol. Gen. Ricardo P. Galvez, Asst. Sol. Gen. Mariano M Martinez and Sol. Jesus P. Castelo. Respondent’s Memorandum, which was signed by Atty. Julius C. Baldado, was received on November 11, 1999; while petitioner’s Memorandum, signed by Attys. Bernard B. Lopez and Maritoni Z. Liwanag, had been filed earlier on September 30, 1999.

[6]Petitioner’s Memorandum, p. 5; rollo, p. 215.

[7]Reyes, The Revised Penal Code, Book Two, 13th ed. (1993), p. 828.

[8]Citing Tolentino, Civil Code of the Philippines: Commentaries and Jurisprudence, Vol. I, p. 265.

[9]Reyes, The Revised Penal Code, Book Two, 12th ed. (1981), p. 907.9

[10]Domingo v. CA, 226 SCRA 572, September 17, 1993, per Romero, J.

[11]95 Phil. 845, September 28, 1954.

[12]100 Phil. 1033, February 28, 1957.

[13]37 SCRA 315, 326, January 30, 1971, per Zaldivar, J. Emphasis supplied. See also Gomez v. Lipana, 33 SCRA 615, June 30, 1970.

[14]122 SCRA 525,529, May 30, 1983; per Melencio-Herrera, J. Emphasis supplied.

[15]143 SCRA 499, August 19, 1986, per Paras, J. Emphasis supplied.

[16]145 SCRA 229, October 28, 1986.

[17]226 SCRA 572, September 17, 1993, per Romero, J, citing Sempio-Diy, Handbook of the Family Code of the Philippines, 1988, p. 46.

[18]Supra, p. 579.

[19]People v. Mendoza, 95 Phil. 845, 847, September 28, 1954, per Paras, CJ. See also People v. Aragon, 100 Phil. 1033, 1034-1035, February 28, 1957, per Labrador, J.

[20]Sempio-Diy, Handbook on the Family Code of the Philippines, 1995 ed., p. 56.

[21]211 SCRA 6, 11, July 3, 1992, per curiam.

[22]Reyes, Revised Penal Code, Book Two, 13th ed. (1993), p. 829. Emphasis supplied. Petitioner had cited the statement of Justice Reyes that “if the first marriage is void from the beginning, it is a defense in a bigamy charge.” This statement, however, appeared in the 1981 edition of Reyes’ book, before the enactment of the Family Code.

[23]Respondent’s Memorandum, p. 16; rollo, p. 259.

[24]Lagandaon v. Court of Appeals, 290 SCRA 330, May 21, 1998; Dio v. Concepcion, 296 SCRA 579, September 25, 1998.

[25]CA Decision, pp. 7-9; rollo, pp. 50-52.

People V Mendoza

2009-12-05T07:27:00.001-08:00

EN BANC

[G.R. No. 128890. May 31, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EDDIE MENDOZA Y PASAG, accused-appellant.

D E C I S I O N

BELLOSILLO, J.:
EDDIE MENDOZA and JOHNNY SANCHEZ stand charged with having conspired to kill one Maximo Abellera on 16 February 1996 in Pozorrubio, Pangasinan, the killing being qualified by treachery, evident premeditation and abuse of superior strength. However, only Eddie Mendoza was arrested, tried and convicted by the trial court. Accused, Johnny Sanchez has never been arrested and remains at large.
The parties would vary the facts. According to prosecution witness Francisco Ignacio, a tricycle driver and resident of Barangay Buneg, at around three o’clock in the afternoon of 16 February 1996 he, together with Maximo Abellera, Virgilio Padilla and Junior Cortado, was playing mahjong in Purok VI, Barangay Buneg, Pozorrubio, Pangasinan. While playing, Eddie Mendoza suddenly appeared from behind and without any warning hacked Maximo Abellera several times with a one and half (1½)-foot long bolo hitting him on the left side of his head. The assailant is Ignacio's second cousin. Quite instinctively the victim stood up but collapsed soon enough. Johnny Sanchez, who had been standing behind Virgilio Padilla for almost thirty (30) minutes, followed next and stabbed the victim several times hitting him at the back with a weapon slightly longer than a fan knife.[1] Practically stunned by the startling occurrence, Ignacio ran away. Mendoza chased him but he outran his pursuer and reached the house of Maximo Abellera safely. There he informed Roger Abellera and Boy Abellera, Maximo's cousin and brother, respectively, about what happened to Maximo. While curious onlookers milled around the crime scene, according to Ignacio, he returned there upon the proddings of the police investigators. It was only then that he learned that Maximo Abellera had died.[2]
The testimony of Ignacio was corroborated by Maximo's father, Patrocinio Abellera Sr., who narrated that the accused Eddie Mendoza was a neighbor who was infamous for killing his own brothers before he murdered Maximo. Abellera, Sr. also said that he was not aware of any dispute between his son Maximo and the accused Mendoza. He also said that upon being informed by Ignacio about the fate of Maximo, he immediately went with his brother to the crime scene where he found the deceased with multiple hack and stab wounds. Shocked at the sight of his son's mutilated form, he could do nothing but cry for about ten (10) minutes. Then he left for home. The Araos Funeral Homes took care of the deceased and brought it home.[3]
Dr. Francisco L. Llamas, Chief Physician of the Pozorrubio Community Hospital, testified that the deceased sustained fourteen (14) hack wounds on his body, most of which were contributory to his death. Dr. Llamas concluded that a sharp-bladed instrument was used in the killing with the possibility that there were two (2) or more assailants. He asserted that wound No. 1, which he considered the most serious since the brain tissue was already exposed, could by itself have caused the death of Maximo Abellera.[4]
Police investigator Maximiano Balelo told the court that Eddie Mendoza and Johnny Sanchez went into hiding immediately after the murder until Eddie was arrested in his hideout about three (3) months after the killing.[5]
To debunk the evidence of the prosecution, the defense presented Antonio Farnacio, a resident of Barangay Rosario in Pozorrubio and a brother-in-law of Mendoza. Farnacio testified that on 16 February 1996 he drove a tricycle and brought home a passenger to Barangay Buneg after which he went to the house of the accused to buy ducks from him. Since Mendoza was not home, Farnacio walked back to the road where he met someone who informed him that Mendoza was in the mahjong joint. According to Farnacio, he sought Mendoza out and found him there. They walked away for some fifty (50) meters and agreed on the purchase of some ducks from Mendoza. Although Mendoza was not playing, he nonetheless urged Farnacio to allow him (Mendoza) to finish the game he was watching. Just when Farnacio and Mendoza were about to leave for the latter's house, Mendoza stumbled on a stone and tripped, hitting the mahjong table. This angered the deceased prompting him to rise and draw a knife despite the apologies of Mendoza. The other accused, Johnny Sanchez, allegedly tried to pacify the deceased but was warned not to meddle. It was at this point when Sanchez allegedly hacked the deceased on the left side of his face using a wide-bladed bolo.[6]
Farnacio further testified that during the commotion everyone scampered. Mendoza dashed to an unspecified direction while he (Farnacio) boarded his tricycle for home. Farnacio admitted however that since then he had not been called by the police nor by any person to testify or take his testimony. He claimed that he did not report the matter to the authorities because of fear aside from the fact that he did not know them as he was residing in another barangay. He further asserted that he neither saw nor intended to see Mendoza after the incident.[7]
The accused Mendoza corroborated the testimony of his witness Farnacio. Mendoza admitted personally knowing the deceased as well as his co-accused Johnny Sanchez, and averred that when he arrived at the mahjong parlor the deceased was already fighting with somebody as the former was mumbling angry words against Johnny Sanchez.[8]
Mendoza further testified that he had not been investigated although he found out later that he was being implicated in the crime. He confirmed that he did not voluntarily surrender to the authorities but was apprehended instead. He categorically denied that he hacked the deceased and that he went into hiding afterwards.[9]
The trial court found the accused Eddie Mendoza y Pasag GUILTY of MURDER defined and penalized under RA 7659 qualified by treachery and aggravated by the circumstance of abuse of superior strength. He was ordered to pay the heirs of the deceased Maximo Abellera P50,000.00 as civil indemnity, P30,000.00 as actual damages and P200,000.00 as moral damages, plus the costs.
The case against Johnny Sanchez was ordered archived until the trial court could acquire jurisdiction over his person by his arrest.[10] The trial court relied heavily on the eyewitness account of Francisco Ignacio and concluded that the witness had no improper motive to testify against accused Eddie Mendoza who is also a close relative.[11]
This case is now before us on automatic review. The accused argues in his brief that the trial court erred in not considering that there was an altercation between the deceased and accused Johnny Sanchez prior to the hacking which should effectively rebut the testimony of the lone prosecution witness that the killing was sudden and the killer came from behind. He also claims that treachery was not present as the means employed did not ensure the commission of the crime without risk to the perpetrator against any defense or retaliation from the deceased. He insists that even granting that the attack was sudden, mere suddenness does not by itself establish treachery, and without treachery he should only be convicted of homicide and not murder.[12]
We uphold the conviction of the accused since the defense failed to impugn the credibility of prosecution witness Francisco Ignacio. In the absence of proof to the contrary, Ignacio's testimony could be motivated by none other than the genuine quest for truth and justice. He is bound to the accused by blood and the intimacy that permeates the Filipino family is legendary. To hear about a crime is hair-raising enough; to witness it could do no less than jolt oneself and embolden him to reveal the perpetrator thereof. For what advantage could impel Ignacio to ignore familial ties and the threats to his life by the relatives of the accused should Ignacio testify against him? Granting arguendo that the threat is only imagined, the defense still failed to ascribe to Ignacio any evil motive sufficient to debunk his revelation as a creditable witness to the crime. Absent any reason or motive for a prosecution witness to perjure, the logical conclusion is that no such improper motive exists and his testimony is thus worthy of full faith and credit.[13]
On the other hand, the conduct of the accused after the perpetration of the crime fails to support his denial of any participation in its commission, and is too unconvincing to lend credence to his assertion that it was Johnny Sanchez who hacked the deceased. The accused admits knowing both Johnny Sanchez and Maximo Abellera personally and that the reason for the hacking was that Sanchez was told by the deceased not to meddle in the fight between him and the accused. We can only surmise then from the accused's narration that Sanchez was doing him a favor and it would have been more in keeping with human nature if he who was the proximate cause of it all exerted effort to shed light on the events leading to the commission as well as the commission itself of the crime instead of quietly disappearing in the midst of the investigation without offering any explanation therefor. Quite perplexing too is the fact that while the accused has pointed to Sanchez as the perpetrator of the crime, yet, after the killing the accused simply disappeared from his residence.[14] Flight betrays a guilty conscience;[15] it is silent yet a loud admission of guilt.
We reject the accused's contention that the fact of altercation between the deceased and Sanchez was adequately established and thus seriously taints the testimony of the lone prosecution eyewitness. The testimony of the physician jives well with that of Francisco Ignacio that the assailant came from behind the victim; that a bladed instrument was used for the killing; and, that the possibility of more than one (1) assailant cannot be discounted. In contrast, the accused in unabashed witlessness urges the Court to believe that Sanchez was trying to act as the peacemaker between him and the deceased Abellera and when the latter refused to listen, Sanchez himself turned from benignant to indignant and forthwith hacked Abellera to death.
The trial court observed the demeanor of the witnesses for the prosecution and for the defense, and believed the former whose testimonies were candid, straightforward and bore the earmarks of truth while characterizing the latter as preposterous and unbelievable.[16] In criminal jurisprudence, when the issue is one of credibility of witnesses, appellate courts will not disturb the findings of the trial court[17] and the Court will respect these findings considering that the trial court is in a better position to decide the question, having heard the witnesses themselves and observed their deportment and manner of testifying during the trial.[18] Of course, the rule admits of certain exceptions: (a) when patent inconsistencies in the statement of witnesses are ignored by the trial court, or (b) when the conclusions arrived at are clearly unsupported by the evidence.[19] But in this case, neither exception can be found, and the Court is not precluded from making its own assessment of the probative value of the testimony of the witnesses on the basis of the transcript of stenographic notes thereof.[20] We have carefully reviewed the records and found no reason to deviate from the conclusions drawn by the trial court; hence, they must prevail.
As to treachery, we affirm the finding of the trial court as these elements were present: (a) the employment of means, method or manner of execution to ensure the safety of the malefactor from the defensive or retaliatory acts of the victim, no opportunity being given the latter to defend or retaliate; and, (b) the deliberate or conscious adoption of such means, method, or manner of execution.[21]
In his brief, the accused attempts to exculpate himself by citing People v. Magsombol[22] where the Court held that no treachery attended the commission of the crime without submission of evidence that the accused consciously and deliberately adopted his mode of attack to insure execution without risk to himself. He argues that the mere suddenness of an attack would not by itself constitute treachery, hence, for failure to prove such qualifying circumstance the crime committed should only be homicide.
But reliance on People v. Magsombol is misplaced. The facts therein would show that the attack by the accused was frontal and his victim managed thereafter to run for about fifteen (15) meters, while the accused did not bother to pursue him but fled instead to the opposite direction. It befits logic to presume that accused therein, although momentarily enraged, was still uncertain whether he had already killed the victim or simply wounded him. If the accused was truly bent on killing the victim, the former would have finished him off instead of merely fleeing to the opposite direction. In contrast, the accused herein came from behind his unsuspecting victim who did not have the slightest inkling that he would be attacked that afternoon in the presence of mahjong players and spectators and their kibitzers. As the victim was totally unprepared for the unexpected attack from behind with no weapon to resist it, the stabbing could only be described as treacherous.[23] As the attack was synchronal, sudden and unexpected, treachery was evident.[24]
Moreover, even as the victim already lay helpless on the ground Mendoza's cohort, Johnny Sanchez, ruthlessly continued to stab the victim until he died. Thus, it can be gleaned from the circumstances surrounding the perpetration of the crime that the accused and Sanchez conspired to bring about the gory end of their victim. Conspiracy may be inferred from the acts of the accused before, during, and after the crime, which are indicative of a common design, concerted action and concurrence of sentiments.[25] And once conspiracy or action in concert to achieve a criminal design is shown, the act of one is the act of all the conspirators, and the precise extent or modality of participation of each of them becomes secondary.[26] The act of Sanchez in stabbing the victim while the latter was already prostrate on the ground was by itself treacherous since the victim could no longer put up any defense against the attack. As a conspirator Mendoza should also be responsible for the treacherous act.
Although evident premeditation is alleged in the Information as an aggravating circumstance, the trial court correctly disregarded it considering that the prosecution did not prove the concurrence of these elements: (a) the time when the accused determined to commit the crime; (b) an act manifestly indicating that the accused clung to his determination to commit the crime; and, (c) a sufficient lapse of time between such determination and its execution to allow him to reflect upon the consequences of his act.[27] Evident premeditation must be proved as clearly as the crime itself and may not be deduced merely from conclusions and inferences.[28]
But the trial court erred in appreciating the aggravating circumstance of abuse of superior strength since this is deemed absorbed in treachery.[29]
The penalty for murder under Art. 248 of the Revised Penal Code is reclusion perpetua to death. Corollarily, Art. 63, second paragraph, provides that "[i]n all cases in which the law prescribes a penalty composed of two indivisible penalties, the following rules shall be applied x x x x 2. [w]hen there are neither mitigating nor aggravating circumstances in the commission of the deed, the lesser penalty shall be applied." Thus, the imposable penalty being composed of two (2) indivisible penalties, in the absence of any modifying circumstance, the lesser penalty of reclusion perpetua shall be imposed on the accused for the killing of Maximo Abellera.
WHEREFORE, the judgment of the trial court convicting the accused EDDIE MENDOZA Y PASAG of MURDER qualified by treachery is AFFIRMED. However, the penalty of death is REDUCED to reclusion perpetua in the absence of any established modifying circumstance. The accused is ORDERED to pay the heirs of the victim Maximo Abellera the amount of P50,000.00 as civil indemnity, P30,000.00 as actual damages and P200,000.00 as moral damages, and to pay the costs.
SO ORDERED.
Melo, Puno, Vitug, Kapunan, Mendoza, Purisima, Pardo, Buena, and Gonzaga-Reyes, JJ., concur.
Davide, Jr., C.J., on official leave.
Panganiban, Quisumbing, Ynares-Santiago, and De Leon, Jr., JJ., on leave.

[1] TSN, 9 October 1996, pp. 2-20

[2] Ibid.

[3] TSN, 17 September 1996, pp. 3-11.

[4] TSN, 25 September 1996, pp. 2-10.

Figueroa v barranco. sobrang kawawa lawyer dito. :(

2009-12-03T20:24:00.001-08:00

EN BANC

[SBC Case No. 519. July 31, 1997]

PATRICIA FIGUEROA, complainant, vs. SIMEON BARRANCO, JR., respondent.

R E S O L U T I O N

ROMERO, J.:

In a complaint made way back in 1971, Patricia Figueroa petitioned that respondent Simeon Barranco, Jr. be denied admission to the legal profession. Respondent had passed the 1970 bar examinations on the fourth attempt, after unsuccessful attempts in 1966, 1967 and 1968. Before he could take his oath, however, complainant filed the instant petition averring that respondent and she had been sweethearts, that a child out of wedlock was born to them and that respondent did not fulfill his repeated promises to marry her.

The facts were manifested in hearings held before Investigator Victor F. Sevilla in June and July 1971. Respondent and complainant were townmates in Janiuay, Iloilo. Since 1953, when they were both in their teens, they were steadies. Respondent even acted as escort to complainant when she reigned as Queen at the 1953 town fiesta. Complainant first acceded to sexual congress with respondent sometime in 1960. Their intimacy yielded a son, Rafael Barranco, born on December 11, 1964.[1] It was after the child was born, complainant alleged, that respondent first promised he would marry her after he passes the bar examinations. Their relationship continued and respondent allegedly made more than twenty or thirty promises of marriage. He gave only P10.00 for the child on the latter’s birthdays. Her trust in him and their relationship ended in 1971, when she learned that respondent married another woman. Hence, this petition.

Upon complainant’s motion, the Court authorized the taking of testimonies of witnesses by deposition in 1972. On February 18, 1974, respondent filed a Manifestation and Motion to Dismiss the case citing complainant’s failure to comment on the motion of Judge Cuello seeking to be relieved from the duty to take aforesaid testimonies by deposition. Complainant filed her comment stating that she had justifiable reasons in failing to file the earlier comment required and that she remains interested in the resolution of the present case. On June 18, 1974, the Court denied respondent’s motion to dismiss.

On October 2, 1980, the Court once again denied a motion to dismiss on the ground of abandonment filed by respondent on September 17, 1979.[2] Respondent’s third motion to dismiss was noted in the Court’s Resolution dated September 15, 1982.[3] In 1988, respondent repeated his request, citing his election as a member of the Sangguniang Bayan of Janiuay, Iloilo from 1980-1986, his active participation in civic organizations and good standing in the community as well as the length of time this case has been pending as reasons to allow him to take his oath as a lawyer.[4]

On September 29, 1988, the Court resolved to dismiss the complaint for failure of complainant to prosecute the case for an unreasonable period of time and to allow Simeon Barranco, Jr. to take the lawyer’s oath upon payment of the required fees.[5]

Respondent’s hopes were again dashed on November 17, 1988 when the Court, in response to complainant’s opposition, resolved to cancel his scheduled oath-taking. On June 1, 1993, the Court referred the case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.

The IBP’s report dated May 17, 1997 recommended the dismissal of the case and that respondent be allowed to take the lawyer’s oath.

We agree.

Respondent was prevented from taking the lawyer’s oath in 1971 because of the charges of gross immorality made by complainant. To recapitulate, respondent bore an illegitimate child with his sweetheart, Patricia Figueroa, who also claims that he did not fulfill his promise to marry her after he passes the bar examinations.

We find that these facts do not constitute gross immorality warranting the permanent exclusion of respondent from the legal profession. His engaging in premarital sexual relations with complainant and promises to marry suggests a doubtful moral character on his part but the same does not constitute grossly immoral conduct. The Court has held that to justify suspension or disbarment the act complained of must not only be immoral, but grossly immoral. “A grossly immoral act is one that is so corrupt and false as to constitute a criminal act or so unprincipled or disgraceful as to be reprehensible to a high degree.”[6] It is a willful, flagrant, or shameless act which shows a moral indifference to the opinion of respectable members of the community.[7]

We find the ruling in Arciga v. Maniwang[8] quite relevant because mere intimacy between a man and a woman, both of whom possess no impediment to marry, voluntarily carried on and devoid of any deceit on the part of respondent, is neither so corrupt nor so unprincipled as to warrant the imposition of disciplinary sanction against him, even if as a result of such relationship a child was born out of wedlock.[9]

Respondent and complainant were sweethearts whose sexual relations were evidently consensual. We do not find complainant’s assertions that she had been forced into sexual intercourse, credible. She continued to see and be respondent’s girlfriend even after she had given birth to a son in 1964 and until 1971. All those years of amicable and intimate relations refute her allegations that she was forced to have sexual congress with him. Complainant was then an adult who voluntarily and actively pursued their relationship and was not an innocent young girl who could be easily led astray. Unfortunately, respondent chose to marry and settle permanently with another woman. We cannot castigate a man for seeking out the partner of his dreams, for marriage is a sacred and perpetual bond which should be entered into because of love, not for any other reason.

We cannot help viewing the instant complaint as an act of revenge of a woman scorned, bitter and unforgiving to the end. It is also intended to make respondent suffer severely and it seems, perpetually, sacrificing the profession he worked very hard to be admitted into. Even assuming that his past indiscretions are ignoble, the twenty-six years that respondent has been prevented from being a lawyer constitute sufficient punishment therefor. During this time there appears to be no other indiscretion attributed to him.[10] Respondent, who is now sixty-two years of age, should thus be allowed, albeit belatedly, to take the lawyer’s oath.

WHEREFORE, the instant petition is hereby DISMISSED. Respondent Simeon Barranco, Jr. is ALLOWED to take his oath as a lawyer upon payment of the proper fees.

SO ORDERED.

Padilla, Regalado, Davide, Jr., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco, and Panganiban, JJ., concur.

Narvasa, C.J., Hermosisima, Jr., and Torres, Jr., JJ., on leave

Piatt v Abordo

2009-12-02T19:57:00.001-08:00

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

Piatt September 1, 1933

C.E. PIATT, Chief of Police of Manila, complainant,
vs.
PERFECTO ABORDO, respondent.

The Respondent in his own behalf.
Office of the Solicitor-General Hilado for the Government.

MALCOLM, J.:

On February 19, 1932, Perfecto Abordo, a member of the Philippine Bar, accepted the offer of two individuals to sell him a quantity of opium, a prohibited drug, and agreed to pay P1.50 per tin for the opium. On the afternoon of the same day, Abordo was picked up at the corner of Taft Avenue extension and Vito Cruz in the City of Manila, by one of the individuals who had made him the opium proposition, and was taken to Rizal Avenue Extension outside of the city limits where they found a number of persons awaiting them in an automobile. A can was disclosed to Abordo as containing opium, and believing that it was opium, he delivered to one Cabrales the amount of P600 in payment of the stuff. The can was loaded in the automobile which brought Abordo to the scene of the delivery, but in returning to Manila another automobile overtook them and the parties riding therein, pretending to be constabulary soldiers, told Abordo to stop. Instead Abordo drew his revolver and commanding the driver of the car to turn into Calle Vito Cruz was able to evade his pursuers and to arrive safely at his home in Pasay. Once in his home Abordo examined the contents of the can and found it to contain fake opium and sand. Thereupon Abordo reported to the Luneta Police Station of Manila that he had been robbed of P600. Two individuals were later arrested, charged with the crime of estafa, and convicted.

Abordo admits that he entered into the transaction detailed above, adding that "he is sincerely sorry for it and vows not to repeat". His defense is that "there being no evidence in the record establishing the relationship of attorney and client between the respondent and the malefactors", and "the act complained of not having been committed in the exercise of his profession of attorney-at-law", the acts he committed could not affect his status as attorney-at-law and could not, therefore, constitute a ground for disciplinary action.

Section 21 of the Code of Civil Procedure enumerates the grounds for the suspension or disbarment of a lawyer. Nevertheless, it is well settled that a member of the bar may be suspended or removed from his office as lawyer for other than statutory grounds. However, as a general rule, a court will not assume jurisdiction to discipline one of its officers for misconduct alleged to be committed in his private capacity. The exception to the rule is that an attorney will be removed not only for malpractice and dishonesty in his profession, but also for gross misconduct not connected with his professional duties, which shows him to be unfit for the office and unworthy of the privileges which his license and the law confer upon him. (In re Pelaez [1923], 44 Phil., 567.)

The courts are not curators of the morals of the bar. At the same time the profession is not compelled to harbor all persons whatever their character, who are fortunate enough to keep out of prison. As good character is an essential qualification for admission of an attorney to practice, when the attorney's character is bad in such respect as to show that he is unsafe and unfit to be entrusted with the powers of an attorney, the courts retain the power to discipline him.

It will be recalled that Perfecto Abordo, a member of the Philippine Bar, attempted to engage in an opium deal in direct contravention of the criminal law of the Philippine Islands. All that kept the nefarious plan from succeeding was the treacherous conduct of his co-conspirators. The intention to flaunt the law was present even if consummation of the overt act was not accomplished. In the eyes of the canons of professional ethics which govern the conduct of attorneys, the act was as reprehensible as if it had been brought to a successful culmination. "Of all classes and professions, the lawyer is most sacredly bound to uphold the laws" said the United States Supreme Court in the well known case of Ex Parte Wall ( [1882], 107 U.S., 265), and to that doctrine we give our unqualified support.

The Solicitor-General submits that the respondent should be reprimanded and warned that a repetition of similar conduct in the future will be dealt with more severely. To our minds such leniency on the part of the Supreme Court would serve merely to condone a pernicious example set by a member of the bar, and would result in action entirely inadequate considering the aggravated nature of the case. In this respect we are not without judicial precedents to guide us. Thus, in the case of In re Terrel ( [1903], 2 Phil., 266), although the respondent had been acquitted on the charge of estafa, yet it was held that, since the promotion of an organization for the purpose of violating or evading the penal laws amounted to such malpractice on the part of an attorney as will justify removal or suspension, the respondent be suspended from the practice of law for a term of one year. Again, In re Pelaez, supra, where an attorney-at-law who, as a guardian, pledged the shares of stock belonging to his ward to guarantee the payment of his personal debt, although this was misconduct committed in his private capacity, the court nevertheless suspended the respondent from the legal profession for one year. We think the instant case grave, and meriting as severe a sentence.

It is the order of the court that the respondent Perfecto Abordo be suspended from the practice of law for a period of one year to begin on September 1, 1933.

Street, Villa-Real, Abad Santos, Hull, Vickers, and Imperial, JJ., concur.

Connel Bros v Aduna

2009-12-02T01:01:00.001-08:00

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-4057 March 31, 1952

CONNEL BROS. COMPANY (PHIL.), ESTHER P. BOOMER and MYRNA NICHOL, plaintiffs-appellees,
vs.
FRANCISCO ADUNA and EX-MERALCO EMPLOYEES TRANSPORTATION COMPANY, defendants;
EX-MERALCO EMPLOYEES TRANSPORTATION COMPANY, defendant-appellant.

Angel S. Gamboa for appellees.
Jose P. de la Cruz and Pio L. Pestano for appellant.

MONTEMAYOR, J.:

This is an appeal by defendant Ex-Meralco Employees Transportation Company from a decision of the Court of First Instance of Rizal, holding the appellant company and its co-defendant Aduna liable for the damages sustained by plaintiffs as a result of the collision between the automobile of one of the plaintiffs and the bus driven by defendant Aduna, condemning said defendants to pay to plaintiff Connel Bros. Company (Phil.), P1,100; plaintiff Esther P. Boomer, P1,681.80; plaintiff Myrna Nichol, P648.46; as fees of plaintiffs' attorney, P500; and to pay costs. the facts are not disputed, the defendant-appellant raising only questions of law, for which reason the appeal has come direct from the lower court.

On September 10, 1949, defendant Francisco Aduna, employed as chauffeur by his co-defendant, Ex-Meralco Employees Transportation Company, while driving his co-defendant's passenger buss on F.B. Harrison Street, Rizal City, in a careless and negligent manner without taking the necessary precautions to avoid accident to persons and damage to property, bumped and hit an oldsmobile car owned by plaintiff Connel Bros. Company (Phil.). As a result of the collision the automobile fell into a canal and was damaged in the sum of P1,000; Esther P. Boomer and Myrna Nichol who were then passengers in the said car sustained physical injuries which necessitated hospitalization and medical care, and they suffered damages in the amounts of P1,681.80 and P648.46, respectively, for hospital and medical expenses and for loss of earning during the period of incapacity to work.

Francisco Aduna was prosecuted and convicted of damage to property and serious physical injuries thru reckless imprudence and had served his prison sentence. At the trial of said criminal case the plaintiffs herein reserved their right to file the corresponding civil suit for damages, and in pursuance of said reservation the present civil action was filed in the lower court to recover damages caused by the criminal negligence committed by defendant Aduna.

The parties herein submitted the case for decision to the lower court upon a stipulation of facts, among which are the conviction of Aduna for damage to property and physical injuries thru reckless imprudence, his being an employee of his co defendant Ex-meralco Employees Transportation Company, and that the latter in carrying out its business had been following the same practices and procedure employed by the Manila Electric Company (MERALCO) in exercising due diligence in hiring and supervising its employees, especially the drivers and conductors in the transportation buses; that furthermore, in the particular case of Francisco Aduna, the defendant company had also scrutinized his previous records as a driver, especially during his employment in the Manila Electric Company for about five (5) years, which was made a prerequisite condition to his employment by his co-defendant; that in addition to the precautionary measures taken for employment of its employees, defendant company has been carefully supervising the work of its employees in the field particularly its drivers and conductors, and that the accident or collision subject-matter of this case is the first collision in which a bus or an employee of the defendant company has been involved. It is also a fact relied upon by the plaintiffs that at the time of the collision, on the back of Francisco Aduna's driver's license marked Exh. C in the criminal case, appear three entries of penalties and warnings.

The theory of the appellant in the lower court was that the present case was brought under the provisions of Arts. 1902 and 1903, of the Civil Code which reads as follows:

Art. 1902. Any person who by an act or omission causes damage to another by his fault or negligence shall be liable for the damage so done.

x x x x x x x x x

Art. 1903. The obligation imposed by the next proceeding article is inforcible, not only for personal acts and omissions, but also for those of persons for whom another is responsible.

x x x x x x x x x

Owners or directors of an establishment or business are equally liable for any damages caused by their employees while engaged in the branch of the service in which employed, or on occasion of the performance of their duties.

x x x x x x x x x

The liability imposed by this article shall cease in case the persons mentioned therein prove that they exercised all the diligence of a good father of a family to prevent the damage.

That is the reason why defendant Company was careful in inserting in the stipulation of facts the precautionary measures it claims to have taken in selecting its drivers, particularly defendant Francisco Aduna, in order to relieve itself from civil liability. The trial court, however, thought otherwise and ruled that inasmuch as the act of reckless negligence of Aduna causing the damage, was governed by Art. 1092 of the Civil Code, which provides that "civil obligations arising from the crimes or misdemeanors shall be governed by the provisions of the Penal Code," then Arts. 102 and 103 of the Revised Penal Code which provides for the subsidiary liability of the employer for felonies committed by his servants or employees in the discharge of their duties, should be applied. In support of its ruling the trial court citedArambulo vs. Manila Electric Co., 55 Phil. 75. That was a case where as a result of the negligence and imprudence of a motorman employed by the Manila Electric Co., damage to property and physical injuries were caused for which he was prosecuted, convicted and sentenced, and where on the basis of said conviction and inability of the motor man to pay the civil indemnity, the Electric Company was sued on the basis of its subsidiary liability, and said Electric Company was not allowed to prove and invoke the employment of the diligence of a good father of a family to prevent the accident by carefully selecting its employees, on the ground that said defense is available not in cases covered by the penal code but only in those covered by the articles of the Civil Code such as Arts. 1903, 1902 and 1093 thereof. In the present appeal, counsel for the appellant, Ex-Meralco Employees Transportation Company, reiterates its theory and defense under said Arts. 1902 and 1903, and cites the case of Barredo vs. Garcia and Almario, 73 Phil., 607. We believe however that the citation does not support appellant's theory. In that Barredo case this Court opined that if the provisions of Art. 1092 of the Civil Code are to be strictly construed in the sense that every civil obligation arising from a crime or misdemeanor is to be governed by the provisions of the penal code, then, inasmuch as all acts or omissions causing damage to another as a result of one's fault or negligence are punishable by law, there would be very little left for the application of article 1902 of the Civil Code governing acts of negligence of purely civil nature (culpa aquiliana) under the civil law or tort under the common law. For that reason, this Court in that case tried or sought to enlarge the field of tort or culpa aquiliana, believing that the remedy provided by the penal code for the recovery of damages by the party damaged is more burdensome and difficult, particularly in the amount or extent of proof to establish his rights to damages, because to establish the guilt of the offender guilty of negligence, proof beyond reasonable doubt is required, whereas in a purely civil action to recover the same damages under Arts. 1902 and 1903 of the Civil Code, only preponderance of the evidence is required. So, the court in that case held that the offended party seeking damages has the right to choose between a criminal action and a civil suit. In that case of Barredo vs. Garcia, the suit was clearly brought under the provisions of the Civil Code. In the decision of the Court of the Appeals which was affirmed by this Court it was stated that the liability sought to be imposed upon the employer in that case was not a civil obligation arising from a felony or misdemeanor (crime committed by Pedro Fontanilla) but an obligation imposed by art. 1903 of the Civil Code because of his negligence in the selection and supervision of his servants or employees. In the present case, however, the plaintiffs have chosen to rely upon the provisions of the Penal Code and have based their action on the result of the criminal case against Francisco Aduna. In fact, no evidence to show the negligence of Aduna was submitted except his conviction in the criminal case. Furthermore, both Aduna and his employer, the Ex-Meralco Employees Transportation Company, were sued, whereas in the case of Barredo vs. Garcia, only Barredo was sued. Of course, the present plaintiffs, perhaps through oversight in the prayer of their complaint, asked that both defendants be made to pay the damages sought; and the trial court, also perhaps through inadvertance, condemned both defendants to pay the damages, instead of declaring that defendant Ex-Meralco Employees Transportation Company should be held merely subsidiary liable.

In view of the foregoing, and with the modification that the liability of appellant Ex-Meralco Employees Transportation Company is only subsidiary, the decision appealed from is hereby affirmed, with cost against appellant. So ordered.

Paras, C.J., Bengzon, Padilla, Tuason, Reyes, Jugo and Bautista Angelo, JJ., concur.

feeling so lonely....

2009-11-30T20:14:00.000-08:00

Sigh...up to now, I can't help but have thoughts of her, the only person I truly love. Breaking up really is very painful. the more you want to forget, the mor eyou remember, the more your remember, the more it hurts, the more you try to hide the pain, the more that it shows,... sigh. :(

Goodridge v Department of Public Health

2009-11-30T19:14:00.001-08:00

Goodridge v. Department of Public Health

Massachusetts Supreme Judicial Court

440 Mass. 309, 798 N.E.2d 941

November 18, 2003

MARSHALL, C.J.

[¶ 1] Marriage is a vital social institution. The exclusive commitment of two individuals to each other nurtures love and mutual support; it brings stability to our society. For those who choose to marry, and for their children, marriage provides an abundance of legal, financial, and social benefits. In return it imposes weighty legal, financial, and social obligations. The question before us is whether, consistent with the Massachusetts Constitution, the Commonwealth may deny the protections, benefits, and obligations conferred by civil marriage to two individuals of the same sex who wish to marry. We conclude that it may not. The Massachusetts Constitution affirms the dignity and equality of all individuals. It forbids the creation of second-class citizens. In reaching our conclusion we have given full deference to the arguments made by the Commonwealth. But it has failed to identify any constitutionally adequate reason for denying civil marriage to same-sex couples.

[¶ 2] We are mindful that our decision marks a change in the history of our marriage law. Many people hold deep-seated religious, moral, and ethical convictions that marriage should be limited to the union of one man and one woman, and that homosexual conduct is immoral. Many hold equally strong religious, moral, and ethical convictions that same-sex couples are entitled to be married, and that homosexual persons should be treated no differently than their heterosexual neighbors. Neither view answers the question before us. Our concern is with the Massachusetts Constitution as a charter of governance for every person properly within its reach. "Our obligation is to define the liberty of all, not to mandate our own moral code." Lawrence v. Texas, 539 U.S. 558 (2003), quoting Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 850 (1992).

[¶ 3] Whether the Commonwealth may use its formidable regulatory authority to bar same-sex couples from civil marriage is a question not previously addressed by a Massachusetts appellate court. It is a question the United States Supreme Court left open as a matter of Federal law in Lawrence, supra, where it was not an issue. There, the Court affirmed that the core concept of common human dignity protected by the Fourteenth Amendment to the United States Constitution precludes government intrusion into the deeply personal realms of consensual adult expressions of intimacy and one's choice of an intimate partner. The Court also reaffirmed the central role that decisions whether to marry or have children bear in shaping one's identity. The Massachusetts Constitution is, if anything, more protective of individual liberty and equality than the Federal Constitution; it may demand broader protection for fundamental rights; and it is less tolerant of government intrusion into the protected spheres of private life.

[¶ 4] Barred access to the protections, benefits, and obligations of civil marriage, a person who enters into an intimate, exclusive union with another of the same sex is arbitrarily deprived of membership in one of our community's most rewarding and cherished institutions. That exclusion is incompatible with the constitutional principles of respect for individual autonomy and equality under law.

[¶ 5] The plaintiffs are fourteen individuals from five Massachusetts counties. As of April 11, 2001, the date they filed their complaint, the plaintiffs Gloria Bailey, sixty years old, and Linda Davies, fifty-five years old, had been in a committed relationship for thirty years; the plaintiffs Maureen Brodoff, forty-nine years old, and Ellen Wade, fifty-two years old, had been in a committed relationship for twenty years and lived with their twelve year old daughter; the plaintiffs Hillary Goodridge, forty-four years old, and Julie Goodridge, forty-three years old, had been in a committed relationship for thirteen years and lived with their five year old daughter; the plaintiffs Gary Chalmers, thirty-five years old, and Richard Linnell, thirty-seven years old, had been in a committed relationship for thirteen years and lived with their eight year old daughter and Richard's mother; the plaintiffs Heidi Norton, thirty-six years old, and Gina Smith, thirty-six years old, had been in a committed relationship for eleven years and lived with their two sons, ages five years and one year; the plaintiffs Michael Horgan, forty-one years old, and David Balmelli, forty-one years old, had been in a committed relationship for seven years; and the plaintiffs David Wilson, fifty-seven years old, and Robert Compton, fifty-one years old, had been in a committed relationship for four years and had cared for David's mother in their home after a serious illness until she died.

[¶ 6] The plaintiffs include business executives, lawyers, an investment banker, educators, therapists, and a computer engineer. Many are active in church, community, and school groups. They have employed such legal means as are available to them--for example, joint adoption, powers of attorney, and joint ownership of real property--to secure aspects of their relationships. Each plaintiff attests a desire to marry his or her partner in order to affirm publicly their commitment to each other and to secure the legal protections and benefits afforded to married couples and their children.

[¶ 7] The Department of Public Health (department) is charged by statute with safeguarding public health. Among its responsibilities, the department oversees the registry of vital records and statistics (registry), which "enforce[s] all laws" relative to the issuance of marriage licenses and the keeping of marriage records and which promulgates policies and procedures for the issuance of marriage licenses by city and town clerks and registers. The registry is headed by a registrar of vital records and statistics (registrar), appointed by the Commissioner of Public Health (commissioner) with the approval of the public health council and supervised by the commissioner.

[¶ 8] In March and April, 2001, each of the plaintiff couples attempted to obtain a marriage license from a city or town clerk's office. As required under G.L. c. 207, they completed notices of intention to marry on forms provided by the registry and presented these forms to a Massachusetts town or city clerk, together with the required health forms and marriage license fees. In each case, the clerk either refused to accept the notice of intention to marry or denied a marriage license to the couple on the ground that Massachusetts does not recognize same-sex marriage. Because obtaining a marriage license is a necessary prerequisite to civil marriage in Massachusetts, denying marriage licenses to the plaintiffs was tantamount to denying them access to civil marriage itself, with its appurtenant social and legal protections, benefits, and obligations.

[¶ 9] On April 11, 2001, the plaintiffs filed suit in the Superior Court against the department and the commissioner seeking a judgment that "the exclusion of the [p]laintiff couples and other qualified same-sex couples from access to marriage licenses, and the legal and social status of civil marriage, as well as the protections, benefits and obligations of marriage, violates Massachusetts law." The plaintiffs alleged violation of the laws of the Commonwealth, including but not limited to their rights under arts. 1, 6, 7, 10, 12, and 16, and Part II, c. 1, Section 1, art. 4, of the Massachusetts Constitution.

[¶ 10] [Footnote: Article 1, as amended by art. 106 of the Amendments to the Massachusetts Constitution, provides: "All people are born free and equal and have certain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing and protecting property; in fine, that of seeking and obtaining their safety and happiness. Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin."

[¶ 11] Article 6 provides: "No man, nor corporation, or association of men, have any other title to obtain advantages, or particular and exclusive privileges, distinct from those of the community, than what arises from the consideration of services rendered to the public...."

[¶ 12] Article 7 provides: "Government is instituted for the common good; for the protection, safety, prosperity, and happiness of the people; and not for the profit, honor, or private interest of any one man, family or class of men: Therefore the people alone have an incontestable, unalienable, and indefeasible right to institute government; and to reform, alter, or totally change the same, when their protection, safety, prosperity and happiness require it."

[¶ 13] Article 10 provides, in relevant part: "Each individual of the society has a right to be protected by it in the enjoyment of his life, liberty and property, according to standing laws...."

[¶ 14] Article 12 provides, in relevant part: "[N]o subject shall be ... deprived of his property, immunities, or privileges, put out of the protection of the law ... or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land."

[¶ 15] Article 16, as amended by art. 77 of the Amendments, provides, in relevant part: "The right of free speech shall not be abridged."

[¶ 16] Part II, c. 1, Section 1, art. 4, as amended by art. 112, provides, in pertinent part, that "full power and authority are hereby given and granted to the said general court, from time to time, to make, ordain, and establish all manner of wholesome and reasonable orders, laws, statutes, and ordinances, directions and instructions, either with penalties or without; so as the same be not repugnant or contrary to this constitution, as they shall judge to be for the good and welfare of this Commonwealth."]

[¶ 17] The department, represented by the Attorney General, admitted to a policy and practice of denying marriage licenses to same-sex couples. It denied that its actions violated any law or that the plaintiffs were entitled to relief. The parties filed cross motions for summary judgment.

[¶ 18] A Superior Court judge ruled for the department. In a memorandum of decision and order dated May 7, 2002, he dismissed the plaintiffs' claim that the marriage statutes should be construed to permit marriage between persons of the same sex, holding that the plain wording of G.L. c. 207, as well as the wording of other marriage statutes, precluded that interpretation. Turning to the constitutional claims, he held that the marriage exclusion does not offend the liberty, freedom, equality, or due process provisions of the Massachusetts Constitution, and that the Massachusetts Declaration of Rights does not guarantee "the fundamental right to marry a person of the same sex." He concluded that prohibiting same-sex marriage rationally furthers the Legislature's legitimate interest in safeguarding the "primary purpose" of marriage, "procreation." The Legislature may rationally limit marriage to opposite-sex couples, he concluded, because those couples are "theoretically ... capable of procreation," they do not rely on "inherently more cumbersome" noncoital means of reproduction, and they are more likely than same-sex couples to have children, or more children.

[¶ 19] After the complaint was dismissed and summary judgment entered for the defendants, the plaintiffs appealed. Both parties requested direct appellate review, which we granted.

[¶ 20] Although the plaintiffs refer in passing to "the marriage statutes," they focus, quite properly, on G.L. c. 207, the marriage licensing statute, which controls entry into civil marriage. As a preliminary matter, we summarize the provisions of that law.

[¶ 21] General Laws c. 207 is both a gatekeeping and a public records statute. It sets minimum qualifications for obtaining a marriage license and directs city and town clerks, the registrar, and the department to keep and maintain certain "vital records" of civil marriages. The gatekeeping provisions of G.L. c. 207 are minimal. They forbid marriage of individuals within certain degrees of consanguinity, Sections 1 and 2, and polygamous marriages. They prohibit marriage if one of the parties has communicable syphilis and restrict the circumstances in which a person under eighteen years of age may marry. The statute requires that civil marriage be solemnized only by those so authorized.

[¶ 22] The record-keeping provisions of G.L. c. 207 are more extensive. Marriage applicants file standard information forms and a medical certificate in any Massachusetts city or town clerk's office and tender a filing fee. The clerk issues the marriage license, and when the marriage is solemnized, the individual authorized to solemnize the marriage adds additional information to the form and returns it (or a copy) to the clerk's office (this completed form is commonly known as the "marriage certificate"). The clerk sends a copy of the information to the registrar, and that information becomes a public record.

[¶ 23] In short, for all the joy and solemnity that normally attend a marriage, G.L. c. 207, governing entrance to marriage, is a licensing law. The plaintiffs argue that because nothing in that licensing law specifically prohibits marriages between persons of the same sex, we may interpret the statute to permit "qualified same sex couples" to obtain marriage licenses, thereby avoiding the question whether the law is constitutional. See School Comm. of Greenfield v. Greenfield Educ. Ass'n, 385 Mass. 70, 79 (1982), and cases cited. This claim lacks merit.

[¶ 24] We interpret statutes to carry out the Legislature's intent, determined by the words of a statute interpreted according to "the ordinary and approved usage of the language." Hanlon v. Rollins, 286 Mass. 444, 447 (1934). The everyday meaning of "marriage" is "[t]he legal union of a man and woman as husband and wife," Black's Law Dictionary 986 (7th ed.1999), and the plaintiffs do not argue that the term "marriage" has ever had a different meaning under Massachusetts law. See, e.g., Milford v. Worcester, 7 Mass. 48, 52 (1810) (marriage "is an engagement, by which a single man and a single woman, of sufficient discretion, take each other for husband and wife"). This definition of marriage, as both the department and the Superior Court judge point out, derives from the common law. See Commonwealth v. Knowlton, 2 Mass. 530, 535 (1807) (Massachusetts common law derives from English common law except as otherwise altered by Massachusetts statutes and Constitution). See also Commonwealth v. Lane, 113 Mass. 458, 462-463 (1873) ("when the statutes are silent, questions of the validity of marriages are to be determined by the jus gentium, the common law of nations"). Far from being ambiguous, the undefined word "marriage," as used in G.L. c. 207, confirms the General Court's intent to hew to the term's common-law and quotidian meaning concerning the genders of the marriage partners.

[¶ 25] The intended scope of G.L. c. 207 is also evident in its consanguinity provisions. See Chandler v. County Comm'rs of Nantucket County, 437 Mass. 430, 435 (2002) (statute's various provisions may offer insight into legislative intent). Sections 1 and 2 of G.L. c. 207 prohibit marriages between a man and certain female relatives and a woman and certain male relatives, but are silent as to the consanguinity of male-male or female-female marriage applicants. The only reasonable explanation is that the Legislature did not intend that same-sex couples be licensed to marry. We conclude, as did the judge, that G.L. c. 207 may not be construed to permit same-sex couples to marry.

III

[¶ 26] The larger question is whether, as the department claims, government action that bars same-sex couples from civil marriage constitutes a legitimate exercise of the State's authority to regulate conduct, or whether, as the plaintiffs claim, this categorical marriage exclusion violates the Massachusetts Constitution. We have recognized the long-standing statutory understanding, derived from the common law, that "marriage" means the lawful union of a woman and a man. But that history cannot and does not foreclose the constitutional question.

[¶ 27] The plaintiffs' claim that the marriage restriction violates the Massachusetts Constitution can be analyzed in two ways. Does it offend the Constitution's guarantees of equality before the law? Or do the liberty and due process provisions of the Massachusetts Constitution secure the plaintiffs' right to marry their chosen partner? In matters implicating marriage, family life, and the upbringing of children, the two constitutional concepts frequently overlap, as they do here. See, e.g., M.L.B. v. S.L.J., 519 U.S. 102, 120 (1996) (noting convergence of due process and equal protection principles in cases concerning parent-child relationships); Perez v. Sharp, 32 Cal.2d 711, 728 (1948) (analyzing statutory ban on interracial marriage as equal protection violation concerning regulation of fundamental right). See also Lawrence, supra ("Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests"); Bolling v. Sharpe, 347 U.S. 497 (1954) (racial segregation in District of Columbia public schools violates the due process clause of the Fifth Amendment to the United States Constitution), decided the same day as Brown v. Board of Educ. of Topeka, 347 U.S. 483 (1954) (holding that segregation of public schools in the States violates the equal protection clause of the Fourteenth Amendment). Much of what we say concerning one standard applies to the other.

[¶ 28] We begin by considering the nature of civil marriage itself. Simply put, the government creates civil marriage. In Massachusetts, civil marriage is, and since pre-Colonial days has been, precisely what its name implies: a wholly secular institution. See Commonwealth v. Munson, 127 Mass. 459, 460-466 (1879) (noting that "[i]n Massachusetts, from very early times, the requisites of a valid marriage have been regulated by statutes of the Colony, Province, and Commonwealth," and surveying marriage statutes from 1639 through 1834). No religious ceremony has ever been required to validate a Massachusetts marriage.

[¶ 29] In a real sense, there are three partners to every civil marriage: two willing spouses and an approving State. See DeMatteo v. DeMatteo, 436 Mass. 18, 31 (2002) ("Marriage is not a mere contract between two parties but a legal status from which certain rights and obligations arise"); Smith v. Smith, 171 Mass. 404, 409 (1898) (on marriage, the parties "assume[ ] new relations to each other and to the State"). See also French v. McAnarney, 290 Mass. 544, 546 (1935). While only the parties can mutually assent to marriage, the terms of the marriage--who may marry and what obligations, benefits, and liabilities attach to civil marriage--are set by the Commonwealth. Conversely, while only the parties can agree to end the marriage (absent the death of one of them or a marriage void ab initio), the Commonwealth defines the exit terms.

[¶ 30] Civil marriage is created and regulated through exercise of the police power. See Commonwealth v. Stowell, 389 Mass. 171, 175 (1983) (regulation of marriage is properly within the scope of the police power). "Police power" (now more commonly termed the State's regulatory authority) is an old-fashioned term for the Commonwealth's lawmaking authority, as bounded by the liberty and equality guarantees of the Massachusetts Constitution and its express delegation of power from the people to their government. In broad terms, it is the Legislature's power to enact rules to regulate conduct, to the extent that such laws are "necessary to secure the health, safety, good order, comfort, or general welfare of the community." Opinion of the Justices, 341 Mass. 760, 785 (1960). See Commonwealth v. Alger, 7 Cush. 53, 85 (1851).

[¶ 31] Without question, civil marriage enhances the "welfare of the community." It is a "social institution of the highest importance." French v. McAnarney, supra. Civil marriage anchors an ordered society by encouraging stable relationships over transient ones. It is central to the way the Commonwealth identifies individuals, provides for the orderly distribution of property, ensures that children and adults are cared for and supported whenever possible from private rather than public funds, and tracks important epidemiological and demographic data.

[¶ 32] Marriage also bestows enormous private and social advantages on those who choose to marry. Civil marriage is at once a deeply personal commitment to another human being and a highly public celebration of the ideals of mutuality, companionship, intimacy, fidelity, and family. "It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects." Griswold v. Connecticut, 381 U.S. 479, 486 (1965). Because it fulfils yearnings for security, safe haven, and connection that express our common humanity, civil marriage is an esteemed institution, and the decision whether and whom to marry is among life's momentous acts of self-definition.

[¶ 33] Tangible as well as intangible benefits flow from marriage. The marriage license grants valuable property rights to those who meet the entry requirements, and who agree to what might otherwise be a burdensome degree of government regulation of their activities. See Leduc v. Commonwealth, 421 Mass. 433, 435 (1995) ("The historical aim of licensure generally is preservation of public health, safety, and welfare by extending the public trust only to those with proven qualifications"). The Legislature has conferred on "each party [in a civil marriage] substantial rights concerning the assets of the other which unmarried cohabitants do not have." Wilcox v. Trautz, 427 Mass. 326, 334 (1998). See Collins v. Guggenheim, 417 Mass. 615, 618 (1994) (rejecting claim for equitable distribution of property where plaintiff cohabited with but did not marry defendant); Feliciano v. Rosemar Silver Co., 401 Mass. 141, 142 (1987) (government interest in promoting marriage would be "subverted" by recognition of "a right to recover for loss of consortium by a person who has not accepted the correlative responsibilities of marriage"); Davis v. Misiano, 373 Mass. 261, 263 (1977) (unmarried partners not entitled to rights of separate support or alimony). See generally Attorney Gen. v. Desilets, 418 Mass. 316, 327-328 & nn. 10, 11 (1994).

[¶ 34] The benefits accessible only by way of a marriage license are enormous, touching nearly every aspect of life and death. The department states that "hundreds of statutes" are related to marriage and to marital benefits. With no attempt to be comprehensive, we note that some of the statutory benefits conferred by the Legislature on those who enter into civil marriage include, as to property: joint Massachusetts income tax filing; tenancy by the entirety (a form of ownership that provides certain protections against creditors and allows for the automatic descent of property to the surviving spouse without probate); extension of the benefit of the homestead protection (securing up to $300,000 in equity from creditors) to one's spouse and children; automatic rights to inherit the property of a deceased spouse who does not leave a will; the rights of elective share and of dower (which allow surviving spouses certain property rights where the decedent spouse has not made adequate provision for the survivor in a will); entitlement to wages owed to a deceased employee; eligibility to continue certain businesses of a deceased spouse; the right to share the medical policy of one's spouse; thirty-nine week continuation of health coverage for the spouse of a person who is laid off or dies; preferential options under the Commonwealth's pension system; preferential benefits in the Commonwealth's medical program, MassHealth; access to veterans' spousal benefits and preferences; financial protections for spouses of certain Commonwealth employees (fire fighters, police officers, prosecutors, among others) killed in the performance of duty; the equitable division of marital property on divorce; temporary and permanent alimony rights; the right to separate support on separation of the parties that does not result in divorce; and the right to bring claims for wrongful death and loss of consortium, and for funeral and burial expenses and punitive damages resulting from tort actions.

[¶ 35] Exclusive marital benefits that are not directly tied to property rights include the presumptions of legitimacy and parentage of children born to a married couple; and evidentiary rights, such as the prohibition against spouses testifying against one another about their private conversations, applicable in both civil and criminal cases. Other statutory benefits of a personal nature available only to married individuals include qualification for bereavement or medical leave to care for individuals related by blood or marriage; an automatic "family member" preference to make medical decisions for an incompetent or disabled spouse who does not have a contrary health care proxy; the application of predictable rules of child custody, visitation, support, and removal out-of-State when married parents divorce; priority rights to administer the estate of a deceased spouse who dies without a will, and requirement that surviving spouse must consent to the appointment of any other person as administrator; and the right to interment in the lot or tomb owned by one's deceased spouse.

[¶ 36] Where a married couple has children, their children are also directly or indirectly, but no less auspiciously, the recipients of the special legal and economic protections obtained by civil marriage. Notwithstanding the Commonwealth's strong public policy to abolish legal distinctions between marital and nonmarital children in providing for the support and care of minors, see Department of Revenue v. Mason M., 439 Mass. 665 (2003); Woodward v. Commissioner of Social Sec., 435 Mass. 536, 546 (2002), the fact remains that marital children reap a measure of family stability and economic security based on their parents' legally privileged status that is largely inaccessible, or not as readily accessible, to nonmarital children. Some of these benefits are social, such as the enhanced approval that still attends the status of being a marital child. Others are material, such as the greater ease of access to family-based State and Federal benefits that attend the presumptions of one's parentage.

[¶ 37] It is undoubtedly for these concrete reasons, as well as for its intimately personal significance, that civil marriage has long been termed a "civil right." See, e.g., Loving v. Virginia, 388 U.S. 1, 12 (1967) ("Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival"), quoting Skinner v. Oklahoma, 316 U.S. 535, 541 (1942); Milford v. Worcester, 7 Mass. 48, 56 (1810) (referring to "civil rights incident to marriages"). See also Baehr v. Lewin, 74 Haw. 530, 561 (1993) (identifying marriage as a "civil right[ ]"); Baker v. State, 170 Vt. 194, 242 (1999) (Johnson, J., concurring in part and dissenting in part) (same). The United States Supreme Court has described the right to marry as "of fundamental importance for all individuals" and as "part of the fundamental 'right of privacy' implicit in the Fourteenth Amendment's Due Process Clause." Zablocki v. Redhail, 434 U.S. 374, 384 (1978). See Loving v. Virginia, supra ("The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men").

[¶ 38] Without the right to marry--or more properly, the right to choose to marry-- one is excluded from the full range of human experience and denied full protection of the laws for one's "avowed commitment to an intimate and lasting human relationship." Baker v. State, supra. Because civil marriage is central to the lives of individuals and the welfare of the community, our laws assiduously protect the individual's right to marry against undue government incursion. Laws may not "interfere directly and substantially with the right to marry." Zablocki v. Redhail, supra. See Perez v. Sharp, supra ("There can be no prohibition of marriage except for an important social objective and reasonable means").

[¶ 39] Unquestionably, the regulatory power of the Commonwealth over civil marriage is broad, as is the Commonwealth's discretion to award public benefits. See Commonwealth v. Stowell, 389 Mass. 171, 175 (1983) (marriage); Moe v. Secretary of Admin. & Fin., 382 Mass. 629, 652 (1981) (Medicaid benefits). Individuals who have the choice to marry each other and nevertheless choose not to may properly be denied the legal benefits of marriage. See Wilcox v. Trautz, 427 Mass. 326, 334 (1998); Collins v. Guggenheim, 417 Mass. 615, 618 (1994); Feliciano v. Rosemar Silver Co., 401 Mass. 141, 142 (1987). But that same logic cannot hold for a qualified individual who would marry if she or he only could.

[¶ 40] For decades, indeed centuries, in much of this country (including Massachusetts) no lawful marriage was possible between white and black Americans. That long history availed not when the Supreme Court of California held in 1948 that a legislative prohibition against interracial marriage violated the due process and equality guarantees of the Fourteenth Amendment, Perez v. Sharp, supra, or when, nineteen years later, the United States Supreme Court also held that a statutory bar to interracial marriage violated the Fourteenth Amendment, Loving v. Virginia, supra. As both Perez and Loving make clear, the right to marry means little if it does not include the right to marry the person of one's choice, subject to appropriate government restrictions in the interests of public health, safety, and welfare. See Perez v. Sharp, supra ("the essence of the right to marry is freedom to join in marriage with the person of one's choice"). In this case, as in Perez and Loving, a statute deprives individuals of access to an institution of fundamental legal, personal, and social significance--the institution of marriage--because of a single trait: skin color in Perez and Loving, sexual orientation here. As it did in Perez and Loving, history must yield to a more fully developed understanding of the invidious quality of the discrimination.

[¶ 41] The Massachusetts Constitution protects matters of personal liberty against government incursion as zealously, and often more so, than does the Federal Constitution, even where both Constitutions employ essentially the same language. See Planned Parenthood League of Mass., Inc. v. Attorney Gen., 424 Mass. 586, 590 (1997); Corning Glass Works v. Ann & Hope, Inc. of Danvers, 363 Mass. 409, 416 (1973). That the Massachusetts Constitution is in some instances more protective of individual liberty interests than is the Federal Constitution is not surprising. Fundamental to the vigor of our Federal system of government is that "state courts are absolutely free to interpret state constitutional provisions to accord greater protection to individual rights than do similar provisions of the United States Constitution." Arizona v. Evans, 514 U.S. 1, 8 (1995).

[¶ 42] The individual liberty and equality safeguards of the Massachusetts Constitution protect both "freedom from" unwarranted government intrusion into protected spheres of life and "freedom to" partake in benefits created by the State for the common good. See Bachrach v. Secretary of the Commonwealth, 382 Mass. 268, 273 (1981); Dalli v. Board of Educ., 358 Mass. 753, 759 (1971). Both freedoms are involved here. Whether and whom to marry, how to express sexual intimacy, and whether and how to establish a family--these are among the most basic of every individual's liberty and due process rights. See, e.g., Lawrence, supra; Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 851 (1992); Zablocki v. Redhail, supra; Roe v. Wade, 410 U.S. 113, 152-153 (1973); Eisenstadt v. Baird, 405 U.S. 438, 453 (1972); Loving v. Virginia, supra. And central to personal freedom and security is the assurance that the laws will apply equally to persons in similar situations. "Absolute equality before the law is a fundamental principle of our own Constitution." Opinion of the Justices, 211 Mass. 618, 619 (1912). The liberty interest in choosing whether and whom to marry would be hollow if the Commonwealth could, without sufficient justification, foreclose an individual from freely choosing the person with whom to share an exclusive commitment in the unique institution of civil marriage.

[¶ 43] The Massachusetts Constitution requires, at a minimum, that the exercise of the State's regulatory authority not be "arbitrary or capricious." Commonwealth v. Henry's Drywall Co., 366 Mass. 539, 542 (1974). Under both the equality and liberty guarantees, regulatory authority must, at very least, serve "a legitimate purpose in a rational way"; a statute must "bear a reasonable relation to a permissible legislative objective." Rushworth v. Registrar of Motor Vehicles, 413 Mass. 265, 270 (1992). See, e.g., Massachusetts Fed'n of Teachers v. Board of Educ., 436 Mass. 763, 778 (2002) (equal protection); Coffee-Rich, Inc. v. Commissioner of Pub. Health, 348 Mass. 414, 422 (1965) (due process). Any law failing to satisfy the basic standards of rationality is void.

[¶ 44] The plaintiffs challenge the marriage statute on both equal protection and due process grounds. With respect to each such claim, we must first determine the appropriate standard of review. Where a statute implicates a fundamental right or uses a suspect classification, we employ "strict judicial scrutiny." Lowell v. Kowalski, 380 Mass. 663, 666 (1980). For all other statutes, we employ the "'rational basis' test." English v. New England Med. Ctr., 405 Mass. 423, 428 (1989). For due process claims, rational basis analysis requires that statutes "bear[ ] a real and substantial relation to the public health, safety, morals, or some other phase of the general welfare." Coffee-Rich, Inc. v. Commissioner of Pub. Health, supra, quoting Sperry & Hutchinson Co. v. Director of the Div. on the Necessaries of Life, 307 Mass. 408, 418 (1940). For equal protection challenges, the rational basis test requires that "an impartial lawmaker could logically believe that the classification would serve a legitimate public purpose that transcends the harm to the members of the disadvantaged class." English v. New England Med. Ctr., supra, quoting Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 452 (1985) (Stevens, J., concurring).

[¶ 45] The department argues that no fundamental right or "suspect" class is at issue here, and rational basis is the appropriate standard of review. For the reasons we explain below, we conclude that the marriage ban does not meet the rational basis test for either due process or equal protection. Because the statute does not survive rational basis review, we do not consider the plaintiffs' arguments that this case merits strict judicial scrutiny.

[¶ 46] The department posits three legislative rationales for prohibiting same-sex couples from marrying: (1) providing a "favorable setting for procreation"; (2) ensuring the optimal setting for child rearing, which the department defines as "a two-parent family with one parent of each sex"; and (3) preserving scarce State and private financial resources. We consider each in turn.

[¶ 47] The judge in the Superior Court endorsed the first rationale, holding that "the state's interest in regulating marriage is based on the traditional concept that marriage's primary purpose is procreation." This is incorrect. Our laws of civil marriage do not privilege procreative heterosexual intercourse between married people above every other form of adult intimacy and every other means of creating a family. General Laws c. 207 contains no requirement that the applicants for a marriage license attest to their ability or intention to conceive children by coitus. Fertility is not a condition of marriage, nor is it grounds for divorce. People who have never consummated their marriage, and never plan to, may be and stay married. See Franklin v. Franklin, 154 Mass. 515, 516 (1891) ("The consummation of a marriage by coition is not necessary to its validity"). People who cannot stir from their deathbed may marry. While it is certainly true that many, perhaps most, married couples have children together (assisted or unassisted), it is the exclusive and permanent commitment of the marriage partners to one another, not the begetting of children, that is the sine qua non of civil marriage.

[¶ 48] Moreover, the Commonwealth affirmatively facilitates bringing children into a family regardless of whether the intended parent is married or unmarried, whether the child is adopted or born into a family, whether assistive technology was used to conceive the child, and whether the parent or her partner is heterosexual, homosexual, or bisexual. If procreation were a necessary component of civil marriage, our statutes would draw a tighter circle around the permissible bounds of nonmarital child bearing and the creation of families by noncoital means. The attempt to isolate procreation as "the source of a fundamental right to marry" (Cordy, J., dissenting herein) overlooks the integrated way in which courts have examined the complex and overlapping realms of personal autonomy, marriage, family life, and child rearing. Our jurisprudence recognizes that, in these nuanced and fundamentally private areas of life, such a narrow focus is inappropriate.

[¶ 49] The "marriage is procreation" argument singles out the one unbridgeable difference between same-sex and opposite-sex couples, and transforms that difference into the essence of legal marriage. Like "Amendment 2" to the Constitution of Colorado, which effectively denied homosexual persons equality under the law and full access to the political process, the marriage restriction impermissibly "identifies persons by a single trait and then denies them protection across the board." Romer v. Evans, 517 U.S. 620, 633 (1996). In so doing, the State's action confers an official stamp of approval on the destructive stereotype that same-sex relationships are inherently unstable and inferior to opposite-sex relationships and are not worthy of respect.

[¶ 50] The department's first stated rationale, equating marriage with unassisted heterosexual procreation, shades imperceptibly into its second: that confining marriage to opposite-sex couples ensures that children are raised in the "optimal" setting. Protecting the welfare of children is a paramount State policy. Restricting marriage to opposite-sex couples, however, cannot plausibly further this policy. "The demographic changes of the past century make it difficult to speak of an average American family. The composition of families varies greatly from household to household." Troxel v. Granville, 530 U.S. 57, 63 (2000). Massachusetts has responded supportively to "the changing realities of the American family," and has moved vigorously to strengthen the modern family in its many variations. See, e.g., G.L. c. 209C (paternity statute); G.L. c. 119, Section 39D (grandparent visitation statute); Blixt v. Blixt, 437 Mass. 649 (2002) (same); E.N.O. v. L.M.M., 429 Mass. 824 (1999) (de facto parent); Youmans v. Ramos, 429 Mass. 774, 782 (1999) (same); and Adoption of Tammy, 416 Mass. 205 (1993) (coparent adoption). Moreover, we have repudiated the common-law power of the State to provide varying levels of protection to children based on the circumstances of birth. See G.L. c. 209C (paternity statute); Powers v. Wilkinson, 399 Mass. 650, 661 (1987) ("Ours is an era in which logic and compassion have impelled the law toward unburdening children from the stigma and the disadvantages heretofore attendant upon the status of illegitimacy"). The "best interests of the child" standard does not turn on a parent's sexual orientation or marital status. See e.g., Doe v. Doe, 16 Mass.App.Ct. 499, 503 (1983) (parent's sexual orientation insufficient ground to deny custody of child in divorce action). See also E.N.O. v. L.M.M., supra (best interests of child determined by considering child's relationship with biological and de facto same-sex parents); Silvia v. Silvia, 9 Mass.App.Ct. 339, 341 & n. 3 (1980) (collecting support and custody statutes containing no gender distinction).

[¶ 51] The department has offered no evidence that forbidding marriage to people of the same sex will increase the number of couples choosing to enter into opposite-sex marriages in order to have and raise children. There is thus no rational relationship between the marriage statute and the Commonwealth's proffered goal of protecting the "optimal" child rearing unit. Moreover, the department readily concedes that people in same-sex couples may be "excellent" parents. These couples (including four of the plaintiff couples) have children for the reasons others do--to love them, to care for them, to nurture them. But the task of child rearing for same-sex couples is made infinitely harder by their status as outliers to the marriage laws. While establishing the parentage of children as soon as possible is crucial to the safety and welfare of children, see Culliton v. Beth Israel Deaconness Med. Ctr., 435 Mass. 285, 292 (2001), same-sex couples must undergo the sometimes lengthy and intrusive process of second-parent adoption to establish their joint parentage. While the enhanced income provided by marital benefits is an important source of security and stability for married couples and their children, those benefits are denied to families headed by same-sex couples. While the laws of divorce provide clear and reasonably predictable guidelines for child support, child custody, and property division on dissolution of a marriage, same-sex couples who dissolve their relationships find themselves and their children in the highly unpredictable terrain of equity jurisdiction. See E.N.O. v. L.M.M., supra. Given the wide range of public benefits reserved only for married couples, we do not credit the department's contention that the absence of access to civil marriage amounts to little more than an inconvenience to same-sex couples and their children. Excluding same-sex couples from civil marriage will not make children of opposite-sex marriages more secure, but it does prevent children of same-sex couples from enjoying the immeasurable advantages that flow from the assurance of "a stable family structure in which children will be reared, educated, and socialized" (Cordy, J., dissenting herein).

[¶ 52] No one disputes that the plaintiff couples are families, that many are parents, and that the children they are raising, like all children, need and should have the fullest opportunity to grow up in a secure, protected family unit. Similarly, no one disputes that, under the rubric of marriage, the State provides a cornucopia of substantial benefits to married parents and their children. The preferential treatment of civil marriage reflects the Legislature's conclusion that marriage "is the foremost setting for the education and socialization of children" precisely because it "encourages parents to remain committed to each other and to their children as they grow" (Cordy, J., dissenting herein).

[¶ 53] In this case, we are confronted with an entire, sizeable class of parents raising children who have absolutely no access to civil marriage and its protections because they are forbidden from procuring a marriage license. It cannot be rational under our laws, and indeed it is not permitted, to penalize children by depriving them of State benefits because the State disapproves of their parents' sexual orientation.

[¶ 54] The third rationale advanced by the department is that limiting marriage to opposite-sex couples furthers the Legislature's interest in conserving scarce State and private financial resources. The marriage restriction is rational, it argues, because the General Court logically could assume that same-sex couples are more financially independent than married couples and thus less needy of public marital benefits, such as tax advantages, or private marital benefits, such as employer-financed health plans that include spouses in their coverage.

[¶ 55] An absolute statutory ban on same-sex marriage bears no rational relationship to the goal of economy. First, the department's conclusory generalization-- that same-sex couples are less financially dependent on each other than opposite-sex couples--ignores that many same-sex couples, such as many of the plaintiffs in this case, have children and other dependents (here, aged parents) in their care. The department does not contend, nor could it, that these dependents are less needy or deserving than the dependents of married couples. Second, Massachusetts marriage laws do not condition receipt of public and private financial benefits to married individuals on a demonstration of financial dependence on each other; the benefits are available to married couples regardless of whether they mingle their finances or actually depend on each other for support.

[¶ 56] The department suggests additional rationales for prohibiting same-sex couples from marrying, which are developed by some amici. It argues that broadening civil marriage to include same-sex couples will trivialize or destroy the institution of marriage as it has historically been fashioned. Certainly our decision today marks a significant change in the definition of marriage as it has been inherited from the common law, and understood by many societies for centuries. But it does not disturb the fundamental value of marriage in our society.

[¶ 57] Here, the plaintiffs seek only to be married, not to undermine the institution of civil marriage. They do not want marriage abolished. They do not attack the binary nature of marriage, the consanguinity provisions, or any of the other gate-keeping provisions of the marriage licensing law. Recognizing the right of an individual to marry a person of the same sex will not diminish the validity or dignity of opposite-sex marriage, any more than recognizing the right of an individual to marry a person of a different race devalues the marriage of a person who marries someone of her own race. If anything, extending civil marriage to same-sex couples reinforces the importance of marriage to individuals and communities. That same-sex couples are willing to embrace marriage's solemn obligations of exclusivity, mutual support, and commitment to one another is a testament to the enduring place of marriage in our laws and in the human spirit.

[¶ 58] It has been argued that, due to the State's strong interest in the institution of marriage as a stabilizing social structure, only the Legislature can control and define its boundaries. Accordingly, our elected representatives legitimately may choose to exclude same-sex couples from civil marriage in order to assure all citizens of the Commonwealth that (1) the benefits of our marriage laws are available explicitly to create and support a family setting that is, in the Legislature's view, optimal for child rearing, and (2) the State does not endorse gay and lesbian parenthood as the equivalent of being raised by one's married biological parents. These arguments miss the point. The Massachusetts Constitution requires that legislation meet certain criteria and not extend beyond certain limits. It is the function of courts to determine whether these criteria are met and whether these limits are exceeded. In most instances, these limits are defined by whether a rational basis exists to conclude that legislation will bring about a rational result. The Legislature in the first instance, and the courts in the last instance, must ascertain whether such a rational basis exists. To label the court's role as usurping that of the Legislature (see, e.g., Cordy, J., dissenting herein) is to misunderstand the nature and purpose of judicial review. We owe great deference to the Legislature to decide social and policy issues, but it is the traditional and settled role of courts to decide constitutional issues.

[¶ 59] The history of constitutional law "is the story of the extension of constitutional rights and protections to people once ignored or excluded." United States v. Virginia, 518 U.S. 515, 557 (1996) (construing equal protection clause of the Fourteenth Amendment to prohibit categorical exclusion of women from public military institute). This statement is as true in the area of civil marriage as in any other area of civil rights. See, e.g., Turner v. Safley, 482 U.S. 78 (1987); Loving v. Virginia, supra; Perez v. Sharp, supra. As a public institution and a right of fundamental importance, civil marriage is an evolving paradigm. The common law was exceptionally harsh toward women who became wives: a woman's legal identity all but evaporated into that of her husband. Thus, one early Nineteenth Century jurist could observe matter of factly that, prior to the abolition of slavery in Massachusetts, "the condition of a slave resembled the connection of a wife with her husband, and of infant children with their father. He is obliged to maintain them, and they cannot be separated from him." Winchendon v. Hatfield, 4 Mass. 123, 129 (1808). But since at least the middle of the Nineteenth Century, both the courts and the Legislature have acted to ameliorate the harshness of the common-law regime. In Bradford v. Worcester, 184 Mass. 557, 562 (1904), we refused to apply the common-law rule that the wife's legal residence was that of her husband to defeat her claim to a municipal "settlement of paupers." In Lewis v. Lewis, 370 Mass. 619, 629 (1976), we abrogated the common-law doctrine immunizing a husband against certain suits because the common-law rule was predicated on "antediluvian assumptions concerning the role and status of women in marriage and in society." Alarms about the imminent erosion of the "natural" order of marriage were sounded over the demise of antimiscegenation laws, the expansion of the rights of married women, and the introduction of "no-fault" divorce. Marriage has survived all of these transformations, and we have no doubt that marriage will continue to be a vibrant and revered institution.

[¶ 60] We also reject the argument suggested by the department, and elaborated by some amici, that expanding the institution of civil marriage in Massachusetts to include same-sex couples will lead to interstate conflict. We would not presume to dictate how another State should respond to today's decision. But neither should considerations of comity prevent us from according Massachusetts residents the full measure of protection available under the Massachusetts Constitution. The genius of our Federal system is that each State's Constitution has vitality specific to its own traditions, and that, subject to the minimum requirements of the Fourteenth Amendment, each State is free to address difficult issues of individual liberty in the manner its own Constitution demands.

[¶ 61] Several amici suggest that prohibiting marriage by same-sex couples reflects community consensus that homosexual conduct is immoral. Yet Massachusetts has a strong affirmative policy of preventing discrimination on the basis of sexual orientation. See G.L. c. 151B (employment, housing, credit, services); G.L. c. 265, Section 39 (hate crimes); G.L. c. 272, Section 98 (public accommodation); G.L. c. 76, Section 5 (public education). See also, e.g., Commonwealth v. Balthazar, 366 Mass. 298 (1974) (decriminalization of private consensual adult conduct); Doe v. Doe, 16 Mass.App.Ct. 499, 503 (1983) (custody to homosexual parent not per se prohibited).

[¶ 62] The department has had more than ample opportunity to articulate a constitutionally adequate justification for limiting civil marriage to opposite-sex unions. It has failed to do so. The department has offered purported justifications for the civil marriage restriction that are starkly at odds with the comprehensive network of vigorous, gender-neutral laws promoting stable families and the best interests of children. It has failed to identify any relevant characteristic that would justify shutting the door to civil marriage to a person who wishes to marry someone of the same sex.

[¶ 63] The marriage ban works a deep and scarring hardship on a very real segment of the community for no rational reason. The absence of any reasonable relationship between, on the one hand, an absolute disqualification of same-sex couples who wish to enter into civil marriage and, on the other, protection of public health, safety, or general welfare, suggests that the marriage restriction is rooted in persistent prejudices against persons who are (or who are believed to be) homosexual. "The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect." Palmore v. Sidoti, 466 U.S. 429, 433 (1984) (construing Fourteenth Amendment). Limiting the protections, benefits, and obligations of civil marriage to opposite-sex couples violates the basic premises of individual liberty and equality under law protected by the Massachusetts Constitution.

[¶ 64] We consider next the plaintiffs' request for relief. We preserve as much of the statute as may be preserved in the face of the successful constitutional challenge. See Mayor of Boston v. Treasurer & Receiver Gen., 384 Mass. 718, 725 (1981); Dalli v. Board of Educ., 358 Mass. 753, 759 (1971).

[¶ 65] Here, no one argues that striking down the marriage laws is an appropriate form of relief. Eliminating civil marriage would be wholly inconsistent with the Legislature's deep commitment to fostering stable families and would dismantle a vital organizing principle of our society. We face a problem similar to one that recently confronted the Court of Appeal for Ontario, the highest court of that Canadian province, when it considered the constitutionality of the same-sex marriage ban under Canada's Federal Constitution, the Charter of Rights and Freedoms (Charter). See Halpern v. Toronto (City), 172 O.A.C. 276 (2003). Canada, like the United States, adopted the common law of England that civil marriage is "the voluntary union for life of one man and one woman, to the exclusion of all others" (quoting Hyde v. Hyde, [1861-1873] All E.R. 175 (1866). In holding that the limitation of civil marriage to opposite-sex couples violated the Charter, the Court of Appeal refined the common-law meaning of marriage. We concur with this remedy, which is entirely consonant with established principles of jurisprudence empowering a court to refine a common-law principle in light of evolving constitutional standards. See Powers v. Wilkinson, 399 Mass. 650, 661-662 (1987) (reforming the common-law rule of construction of "issue"); Lewis v. Lewis, 370 Mass. 619, 629 (1976) (abolishing common-law rule of certain interspousal immunity).

[¶ 66] We construe civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others. This reformulation redresses the plaintiffs' constitutional injury and furthers the aim of marriage to promote stable, exclusive relationships. It advances the two legitimate State interests the department has identified: providing a stable setting for child rearing and conserving State resources. It leaves intact the Legislature's broad discretion to regulate marriage. See Commonwealth v. Stowell, 389 Mass. 171, 175 (1983).

[¶ 67] In their complaint the plaintiffs request only a declaration that their exclusion and the exclusion of other qualified same-sex couples from access to civil marriage violates Massachusetts law. We declare that barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution. We vacate the summary judgment for the department. We remand this case to the Superior Court for entry of judgment consistent with this opinion. Entry of judgment shall be stayed for 180 days to permit the Legislature to take such action as it may deem appropriate in light of this opinion. See, e.g., Michaud v. Sheriff of Essex County, 390 Mass. 523, 535-536 (1983).

So ordered.

GREANEY, J. (concurring).

[¶ 68] I agree with the result reached by the court, the remedy ordered, and much of the reasoning in the court's opinion. In my view, however, the case is more directly resolved using traditional equal protection analysis.

[¶ 69] Article 1 of the Declaration of Rights, as amended by art. 106 of the Amendments to the Massachusetts Constitution, provides:

"All people are born free and equal and have certain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing and protecting property; in fine, that of seeking and obtaining their safety and happiness. Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin."

[¶ 70] This provision, even prior to its amendment, guaranteed to all people in the Commonwealth--equally--the enjoyment of rights that are deemed important or fundamental. The withholding of relief from the plaintiffs, who wish to marry, and are otherwise eligible to marry, on the ground that the couples are of the same gender, constitutes a categorical restriction of a fundamental right. The restriction creates a straightforward case of discrimination that disqualifies an entire group of our citizens and their families from participation in an institution of paramount legal and social importance. This is impermissible under art. 1.

[¶ 71] Analysis begins with the indisputable premise that the deprivation suffered by the plaintiffs is no mere legal inconvenience. The right to marry is not a privilege conferred by the State, but a fundamental right that is protected against unwarranted State interference. See Zablocki v. Redhail, 434 U.S. 374, 384 (1978) ("the right to marry is of fundamental importance for all individuals"); Loving v. Virginia, 388 U.S. 1, 12 (1967) (freedom to marry is "one of the vital personal rights essential to the orderly pursuit of happiness by free men" under due process clause of Fourteenth Amendment); Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (marriage is one of "basic civil rights of man"). See also Turner v. Safley, 482 U.S. 78, 95-96 (1987) (prisoners' right to marry is constitutionally protected). This right is essentially vitiated if one is denied the right to marry a person of one's choice. See Zablocki v. Redhail, supra (all recent decisions of United States Supreme Court place "the decision to marry as among the personal decisions protected by the right of privacy").

[¶ 72] Because our marriage statutes intend, and state, the ordinary understanding that marriage under our law consists only of a union between a man and a woman, they create a statutory classification based on the sex of the two people who wish to marry. See Baehr v. Lewin, 74 Haw. 530, 564 (1993) (plurality opinion) (Hawaii marriage statutes created sex-based classification); Baker v. State, 170 Vt. 194, 253 (1999) (Johnson, J., concurring in part and dissenting in part) (same). That the classification is sex based is self-evident. The marriage statutes prohibit some applicants, such as the plaintiffs, from obtaining a marriage license, and that prohibition is based solely on the applicants' gender. As a factual matter, an individual's choice of marital partner is constrained because of his or her own sex. Stated in particular terms, Hillary Goodridge cannot marry Julie Goodridge because she (Hillary) is a woman. Likewise, Gary Chalmers cannot marry Richard Linnell because he (Gary) is a man. Only their gender prevents Hillary and Gary from marrying their chosen partners under the present law.

[¶ 73] A classification may be gender based whether or not the challenged government action apportions benefits or burdens uniformly along gender lines. This is so because constitutional protections extend to individuals and not to categories of people. Thus, when an individual desires to marry, but cannot marry his or her chosen partner because of the traditional opposite-sex restriction, a violation of art. 1 has occurred. See Commonwealth v. Chou, 433 Mass. 229, 237-238 (2001) (assuming statute enforceable only across gender lines may offend Massachusetts equal rights amendment). I find it disingenuous, at best, to suggest that such an individual's right to marry has not been burdened at all, because he or she remains free to chose another partner, who is of the opposite sex.

[¶ 74] The equal protection infirmity at work here is strikingly similar to (although, perhaps, more subtle than) the invidious discrimination perpetuated by Virginia's antimiscegenation laws and unveiled in the decision of Loving v. Virginia, supra. In its landmark decision striking down Virginia's ban on marriages between Caucasians and members of any other race on both equal protection and substantive due process grounds, the United States Supreme Court soundly rejected the proposition that the equal application of the ban (i.e., that it applied equally to whites and blacks) made unnecessary the strict scrutiny analysis traditionally required of statutes drawing classifications according to race and concluded that "restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause." That our marriage laws, unlike antimiscegenation laws, were not enacted purposely to discriminate in no way neutralizes their present discriminatory character.

[¶ 75] With these two propositions established (the infringement on a fundamental right and a sex-based classification), the enforcement of the marriage statutes as they are currently understood is forbidden by our Constitution unless the State can present a compelling purpose further by the statutes that can be accomplished in no other reasonable manner. See Blixt v. Blixt, 437 Mass. 649, 655-656 (2002); Lowell v. Kowalski, 380 Mass. 663, 667-669 (1980). This the State has not done. The justifications put forth by the State to sustain the statute's exclusion of the plaintiffs are insufficient for the reasons explained by the court to which I add the following observations.

[¶ 76] The rights of couples to have children, to adopt, and to be foster parents, regardless of sexual orientation and marital status, are firmly established. See E.N.O. v. L.M.M., 429 Mass. 824, 829 (1999); Adoption of Tammy, 416 Mass. 205, 210-211 (1993). As recognized in the court's opinion, and demonstrated by the record in this case, however, the State's refusal to accord legal recognition to unions of same-sex couples has had the effect of creating a system in which children of same-sex couples are unable to partake of legal protections and social benefits taken for granted by children in families whose parents are of the opposite sex. The continued maintenance of this caste-like system is irreconcilable with, indeed, totally repugnant to, the State's strong interest in the welfare of all children and its primary focus, in the context of family law where children are concerned, on "the best interests of the child." The issue at stake is not one, as might ordinarily be the case, that can be unilaterally and totally deferred to the wisdom of the Legislature. "While the State retains wide latitude to decide the manner in which it will allocate benefits, it may not use criteria which discriminatorily burden the exercise of a fundamental right." Moe v. Secretary of Admin. & Fin., 382 Mass. 629, 652 (1981). Nor can the State's wish to conserve resources be accomplished by invidious distinctions between classes of citizens. See Plyler v. Doe, 457 U.S. 202, 216-217, 227 (1982).

[¶ 77] A comment is in order with respect to the insistence of some that marriage is, as a matter of definition, the legal union of a man and a woman. To define the institution of marriage by the characteristics of those to whom it always has been accessible, in order to justify the exclusion of those to whom it never has been accessible, is conclusory and bypasses the core question we are asked to decide. This case calls for a higher level of legal analysis. Precisely, the case requires that we confront ingrained assumptions with respect to historically accepted roles of men and women within the institution of marriage and requires that we reexamine these assumptions in light of the unequivocal language of art. 1, in order to ensure that the governmental conduct challenged here conforms to the supreme charter of our Commonwealth. "A written constitution is the fundamental law for the government of a sovereign State. It is the final statement of the rights, privileges and obligations of the citizens and the ultimate grant of the powers and the conclusive definition of the limitations of the departments of State and of public officers.... To its provisions the conduct of all governmental affairs must conform. From its terms there is no appeal." Loring v. Young, 239 Mass. 349, 376-377 (1921). I do not doubt the sincerity of deeply held moral or religious beliefs that make inconceivable to some the notion that any change in the common-law definition of what constitutes a legal civil marriage is now, or ever would be, warranted. But, as matter of constitutional law, neither the mantra of tradition, nor individual conviction, can justify the perpetuation of a hierarchy in which couples of the same sex and their families are deemed less worthy of social and legal recognition than couples of the opposite sex and their families. See Lawrence v. Texas, 539 U.S. 558 (2003) (O'Connor, J., concurring) (moral disapproval, with no other valid State interest, cannot justify law that discriminates against groups of persons); Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 850 (1992) ("Our obligation is to define the liberty of all, not to mandate our own moral code").

[¶ 78] I am hopeful that our decision will be accepted by those thoughtful citizens who believe that same-sex unions should not be approved by the State. I am not referring here to acceptance in the sense of grudging acknowledgment of the court's authority to adjudicate the matter. My hope is more liberating. The plaintiffs are members of our community, our neighbors, our coworkers, our friends. As pointed out by the court, their professions include investment advisor, computer engineer, teacher, therapist, and lawyer. The plaintiffs volunteer in our schools, worship beside us in our religious houses, and have children who play with our children, to mention just a few ordinary daily contacts. We share a common humanity and participate together in the social contract that is the foundation of our Commonwealth. Simple principles of decency dictate that we extend to the plaintiffs, and to their new status, full acceptance, tolerance, and respect. We should do so because it is the right thing to do. The union of two people contemplated by G.L. c. 207 "is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions." Griswold v. Connecticut, 381 U.S. 479, 486 (1965). Because of the terms of art. 1, the plaintiffs will no longer be excluded from that association.

SPINA, J. (dissenting, with whom Sosman and Cordy, JJ., join).

[¶ 79] What is at stake in this case is not the unequal treatment of individuals or whether individual rights have been impermissibly burdened, but the power of the Legislature to effectuate social change without interference from the courts, pursuant to art. 30 of the Massachusetts Declaration of Rights. The power to regulate marriage lies with the Legislature, not with the judiciary. See Commonwealth v. Stowell, 389 Mass. 171, 175 (1983). Today, the court has transformed its role as protector of individual rights into the role of creator of rights, and I respectfully dissent.

1. Equal protection.

[¶ 80] Although the court did not address the plaintiffs' gender discrimination claim, G.L. c. 207 does not unconstitutionally discriminate on the basis of gender. A claim of gender discrimination will lie where it is shown that differential treatment disadvantages one sex over the other. See Attorney Gen. v. Massachusetts Interscholastic Athletic Ass'n, 378 Mass. 342, 349-352 (1979). See also United States v. Virginia, 518 U.S. 515 (1996). General Laws c. 207 enumerates certain qualifications for obtaining a marriage license. It creates no distinction between the sexes, but applies to men and women in precisely the same way. It does not create any disadvantage identified with gender as both men and women are similarly limited to marrying a person of the opposite sex. See Commonwealth v. King, 374 Mass. 5, 15-22 (1977) (law prohibiting prostitution not discriminatory based on gender because of equal application to men and women).

[¶ 81] Similarly, the marriage statutes do not discriminate on the basis of sexual orientation. As the court correctly recognizes, constitutional protections are extended to individuals, not couples. The marriage statutes do not disqualify individuals on the basis of sexual orientation from entering into marriage. All individuals, with certain exceptions not relevant here, are free to marry. Whether an individual chooses not to marry because of sexual orientation or any other reason should be of no concern to the court.

[¶ 82] The court concludes, however, that G.L. c. 207 unconstitutionally discriminates against the individual plaintiffs because it denies them the "right to marry the person of one's choice" where that person is of the same sex. To reach this result the court relies on Loving v. Virginia, 388 U.S. 1, 12 (1967), and transforms "choice" into the essential element of the institution of marriage. The Loving case did not use the word "choice" in this manner, and it did not point to the result that the court reaches today. In Loving, the Supreme Court struck down as unconstitutional a statute that prohibited Caucasians from marrying non-Caucasians. It concluded that the statute was intended to preserve white supremacy and invidiously discriminated against non-Caucasians because of their race. The "choice" to which the Supreme Court referred was the "choice to marry," and it concluded that with respect to the institution of marriage, the State had no compelling interest in limiting the choice to marry along racial lines. The Supreme Court did not imply the existence of a right to marry a person of the same sex. To the same effect is Perez v. Sharp, 32 Cal.2d 711 (1948), on which the court also relies.

[¶ 83] Unlike the Loving and Sharp cases, the Massachusetts Legislature has erected no barrier to marriage that intentionally discriminates against anyone. Within the institution of marriage, anyone is free to marry, with certain exceptions that are not challenged. In the absence of any discriminatory purpose, the State's marriage statutes do not violate principles of equal protection. See Washington v. Davis, 426 U.S. 229, 240 (1976) ( "invidious quality of a law claimed to be ... discriminatory must ultimately be traced to a ... discriminatory purpose"); Dickerson v. Attorney Gen., 396 Mass. 740, 743 (1986) (for purpose of equal protection analysis, standard of review under State and Federal Constitutions is identical). See also Attorney Gen. v. Massachusetts Interscholastic Athletic Ass'n, supra. This court should not have invoked even the most deferential standard of review within equal protection analysis because no individual was denied access to the institution of marriage.

2. Due process.

[¶ 84] The marriage statutes do not impermissibly burden a right protected by our constitutional guarantee of due process implicit in art. 10 of our Declaration of Rights. There is no restriction on the right of any plaintiff to enter into marriage. Each is free to marry a willing person of the opposite sex. Cf. Zablocki v. Redhail, 434 U.S. 374 (1978) (fundamental right to marry impermissibly burdened by statute requiring court approval when subject to child support order).

[¶ 85] Substantive due process protects individual rights against unwarranted government intrusion. See Aime v. Commonwealth, 414 Mass. 667, 673 (1993). The court states, as we have said on many occasions, that the Massachusetts Declaration of Rights may protect a right in ways that exceed the protection afforded by the Federal Constitution. See Arizona v. Evans, 514 U.S. 1, 8 (1995) (State courts afforded broader protection of rights than granted by United States Constitution). However, today the court does not fashion a remedy that affords greater protection of a right. Instead, using the rubric of due process it has redefined marriage.

[¶ 86] Although art. 10 may afford greater protection of rights than the due process clause of the Fourteenth Amendment, our treatment of due process challenges adheres to the same standards followed in Federal due process analysis. See Commonwealth v. Ellis, 429 Mass. 362, 371 (1999). When analyzing a claim that the State has impermissibly burdened an individual's fundamental or other right or liberty interest, "[w]e begin by sketching the contours of the right asserted. We then inquire whether the challenged restriction burdens that right." Moe v. Secretary of Admin. & Fin., 382 Mass. 629, 646 (1981). Where a right deemed "fundamental" is implicated, the challenged restriction will be upheld only if it is "narrowly tailored to further a legitimate and compelling governmental interest." Aime v. Commonwealth, supra. To qualify as "fundamental" the asserted right must be "objectively, 'deeply rooted in this Nation's history and tradition,' [Moore v. East Cleveland, 431 U.S. 494, 503 (1977) (plurality opinion)] ... and 'implicit in the concept of ordered liberty,' such that 'neither liberty nor justice would exist if they were sacrificed.'" Washington v. Glucksberg, 521 U.S. 702, 720-721 (1997), quoting Palko v. Connecticut, 302 U.S. 319, 325, 326 (1937) (right to assisted suicide does not fall within fundamental right to refuse medical treatment because novel and unsupported by tradition). See Three Juveniles v. Commonwealth, 390 Mass. 357, 367 (1983) (O'Connor, J., dissenting). Rights that are not considered fundamental merit due process protection if they have been irrationally burdened. See Massachusetts Fed'n of Teachers v. Board of Educ., 436 Mass. 763, 777-779 & n. 14 (2002).

[¶ 87] Although this court did not state that same-sex marriage is a fundamental right worthy of strict scrutiny protection, it nonetheless deemed it a constitutionally protected right by applying rational basis review. Before applying any level of constitutional analysis there must be a recognized right at stake. Same-sex marriage, or the "right to marry the person of one's choice" as the court today defines that right, does not fall within the fundamental right to marry. Same-sex marriage is not "deeply rooted in this Nation's history," and the court does not suggest that it is. Except for the occasional isolated decision in recent years, see, e.g., Baker v. State, 170 Vt. 194 (1999), same-sex marriage is not a right, fundamental or otherwise, recognized in this country. Just one example of the Legislature's refusal to recognize same-sex marriage can be found in a section of the legislation amending G.L. c. 151B to prohibit discrimination in the workplace on the basis of sexual orientation, which states: "Nothing in this act shall be construed so as to legitimize or validate a 'homosexual marriage'...." In this Commonwealth and in this country, the roots of the institution of marriage are deeply set in history as a civil union between a single man and a single woman. There is no basis for the court to recognize same-sex marriage as a constitutionally protected right.

3. Remedy.

[¶ 88] The remedy that the court has fashioned both in the name of equal protection and due process exceeds the bounds of judicial restraint mandated by art. 30. The remedy that construes gender specific language as gender neutral amounts to a statutory revision that replaces the intent of the Legislature with that of the court. Article 30 permits the court to apply principles of equal protection and to modify statutory language only if legislative intent is preserved. See, e.g., Commonwealth v. Chou, 433 Mass. 229, 238-239 (2001) (judicial rewriting of gender language permissible only when Legislature intended to include both men and women). See also Lowell v. Kowalski, 380 Mass. 663, 670 (1980). Here, the alteration of the gender-specific language alters precisely what the Legislature unambiguously intended to preserve, the marital rights of single men and women. Such a dramatic change in social institutions must remain at the behest of the people through the democratic process.

[¶ 89] Where the application of equal protection principles does not permit rewriting a statute in a manner that preserves the intent of the Legislature, we do not rewrite the statute. In Dalli v. Board of Educ., 358 Mass. 753 (1971), the court refused to rewrite a statute in a manner that would include unintended individuals. "To attempt to interpret this [statute] as including those in the category of the plaintiff would be to engage in a judicial enlargement of the clear statutory language beyond the limit of our judicial function. We have traditionally and consistently declined to trespass on legislative territory in deference to the time tested wisdom of the separation of powers as expressed in art. [30] of the Declaration of Rights of the Constitution of Massachusetts even when it appeared that a highly desirable and just result might thus be achieved." Recently, in Connors v. Boston, 430 Mass. 31 (1999), we refused to expand health insurance coverage to include domestic partners because such an expansion was within the province of the Legislature, where policy affecting family relationships is most appropriate and frequently considered. Principles of equal protection do not permit the marriage statutes to be changed in the manner that we have seen today.

[¶ 90] This court has previously exercised the judicial restraint mandated by art. 30 and declined to extend due process protection to rights not traditionally coveted, despite recognition of their social importance. See Tobin's Case, 424 Mass. 250, 252-253 (1997) (receiving workers' compensation benefits not fundamental right); Doe v. Superintendent of Schs. of Worcester, 421 Mass. 117, 129 (1995) (declaring education not fundamental right); Williams v. Secretary of the Executive Office of Human Servs., 414 Mass. 551, 565 (1993) (no fundamental right to receive mental health services); Matter of Tocci, 413 Mass. 542, 548 n. 4 (1992) (no fundamental right to practice law); Commonwealth v. Henry's Drywall Co., 366 Mass. 539, 542 (1974) (no fundamental right to pursue one's business). Courts have authority to recognize rights that are supported by the Constitution and history, but the power to create novel rights is reserved for the people through the democratic and legislative processes.

[¶ 91] Likewise, the Supreme Court exercises restraint in the application of substantive due process "'because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.' [Collins v. Harker Heights, 503 U.S. 115, 125 (1992).] By extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action. We must therefore 'exercise the utmost care whenever we are asked to break new ground in this field' lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court, Moore [v. East Cleveland, 431 U.S. 494, 502 (1977)] (plurality opinion)." Washington v. Glucksberg, supra.

[¶ 92] The court has extruded a new right from principles of substantive due process, and in doing so it has distorted the meaning and purpose of due process. The purpose of substantive due process is to protect existing rights, not to create new rights. Its aim is to thwart government intrusion, not invite it. The court asserts that the Massachusetts Declaration of Rights serves to guard against government intrusion into each individual's sphere of privacy. Similarly, the Supreme Court has called for increased due process protection when individual privacy and intimacy are threatened by unnecessary government imposition. See, e.g., Lawrence v. Texas, 539 U.S. 558 (2003) (private nature of sexual behavior implicates increased due process protection); Eisenstadt v. Baird, 405 U.S. 438 (1972) (privacy protection extended to procreation decisions within nonmarital context); Griswold v. Connecticut, 381 U.S. 479 (1965) (due process invoked because of intimate nature of procreation decisions). These cases, along with the Moe case, focus on the threat to privacy when government seeks to regulate the most intimate activity behind bedroom doors. The statute in question does not seek to regulate intimate activity within an intimate relationship, but merely gives formal recognition to a particular marriage. The State has respected the private lives of the plaintiffs, and has done nothing to intrude in the relationships that each of the plaintiff couples enjoy. Cf. Lawrence v. Texas, supra (case "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter"). Ironically, by extending the marriage laws to same-sex couples the court has turned substantive due process on its head and used it to interject government into the plaintiffs' lives.

SOSMAN, J. (dissenting, with whom Spina and Cordy, JJ., join).

[¶ 93] In applying the rational basis test to any challenged statutory scheme, the issue is not whether the Legislature's rationale behind that scheme is persuasive to us, but only whether it satisfies a minimal threshold of rationality. Today, rather than apply that test, the court announces that, because it is persuaded that there are no differences between same-sex and opposite-sex couples, the Legislature has no rational basis for treating them differently with respect to the granting of marriage licenses. Reduced to its essence, the court's opinion concludes that, because same-sex couples are now raising children, and withholding the benefits of civil marriage from their union makes it harder for them to raise those children, the State must therefore provide the benefits of civil marriage to same-sex couples just as it does to opposite-sex couples. Of course, many people are raising children outside the confines of traditional marriage, and, by definition, those children are being deprived of the various benefits that would flow if they were being raised in a household with married parents. That does not mean that the Legislature must accord the full benefits of marital status on every household raising children. Rather, the Legislature need only have some rational basis for concluding that, at present, those alternate family structures have not yet been conclusively shown to be the equivalent of the marital family structure that has established itself as a successful one over a period of centuries. People are of course at liberty to raise their children in various family structures, as long as they are not literally harming their children by doing so. See Blixt v. Blixt, 437 Mass. 649, 668-670 (2002) (Sosman, J., dissenting). That does not mean that the State is required to provide identical forms of encouragement, endorsement, and support to all of the infinite variety of household structures that a free society permits.

[¶ 94] Based on our own philosophy of child rearing, and on our observations of the children being raised by same-sex couples to whom we are personally close, we may be of the view that what matters to children is not the gender, or sexual orientation, or even the number of the adults who raise them, but rather whether those adults provide the children with a nurturing, stable, safe, consistent, and supportive environment in which to mature. Same-sex couples can provide their children with the requisite nurturing, stable, safe, consistent, and supportive environment in which to mature, just as opposite-sex couples do. It is therefore understandable that the court might view the traditional definition of marriage as an unnecessary anachronism, rooted in historical prejudices that modern society has in large measure rejected and biological limitations that modern science has overcome.

[¶ 95] It is not, however, our assessment that matters. Conspicuously absent from the court's opinion today is any acknowledgment that the attempts at scientific study of the ramifications of raising children in same-sex couple households are themselves in their infancy and have so far produced inconclusive and conflicting results. Notwithstanding our belief that gender and sexual orientation of parents should not matter to the success of the child rearing venture, studies to date reveal that there are still some observable differences between children raised by opposite-sex couples and children raised by same-sex couples (see Cordy, J., dissenting herein). Interpretation of the data gathered by those studies then becomes clouded by the personal and political beliefs of the investigators, both as to whether the differences identified are positive or negative, and as to the untested explanations of what might account for those differences. (This is hardly the first time in history that the ostensible steel of the scientific method has melted and buckled under the intense heat of political and religious passions.) Even in the absence of bias or political agenda behind the various studies of children raised by same-sex couples, the most neutral and strict application of scientific principles to this field would be constrained by the limited period of observation that has been available. Gay and lesbian couples living together openly, and official recognition of them as their children's sole parents, comprise a very recent phenomenon, and the recency of that phenomenon has not yet permitted any study of how those children fare as adults and at best minimal study of how they fare during their adolescent years. The Legislature can rationally view the state of the scientific evidence as unsettled on the critical question it now faces: Are families headed by same-sex parents equally successful in rearing children from infancy to adulthood as families headed by parents of opposite sexes? Our belief that children raised by same-sex couples should fare the same as children raised in traditional families is just that: a passionately held but utterly untested belief. The Legislature is not required to share that belief but may, as the creator of the institution of civil marriage, wish to see the proof before making a fundamental alteration to that institution.

[¶ 96] Although ostensibly applying the rational basis test to the civil marriage statutes, it is abundantly apparent that the court is in fact applying some undefined stricter standard to assess the constitutionality of the marriage statutes' exclusion of same-sex couples. While avoiding any express conclusion as to any of the proffered routes by which that exclusion would be subjected to a test of strict scrutiny--infringement of a fundamental right, discrimination based on gender, or discrimination against gays and lesbians as a suspect classification--the opinion repeatedly alludes to those concepts in a prolonged and eloquent prelude before articulating its view that the exclusion lacks even a rational basis (noting that State Constitution is "more protective of individual liberty and equality," demands "broader protection for fundamental rights," and is "less tolerant of government intrusion into the protected spheres of private life" than Federal Constitution; describing decision to marry and choice of marital partner as "among life's momentous acts of self-definition"; repeated references to "right to marry" as "fundamental"; repeated comparisons to statutes prohibiting interracial marriage, which were predicated on suspect classification of race; characterizing ban on same-sex marriage as "invidious" discrimination that "deprives individuals of access to an institution of fundamental legal, personal, and social significance" and again noting that Massachusetts Constitution "protects matters of personal liberty against government incursion" more zealously than Federal Constitution; characterizing "whom to marry, how to express sexual intimacy, and whether and how to establish a family" as "among the most basic of every individual's liberty and due process rights"; "liberty interest in choosing whether and whom to marry would be hollow" if Commonwealth could "foreclose an individual from freely choosing the person" to marry; opining that in "overlapping realms of personal autonomy, marriage, family life and child-rearing," characterized as "fundamentally private areas of life," court uses "integrated" analysis instead of "narrow focus"; suggesting that prohibition on same-sex marriage "impose[s] limits on personal beliefs"; suggesting that "total deference" to Legislature in this case would be equivalent to "strip[ping]" judiciary "of its constitutional authority to decide challenges" in such areas as forced sterilization, antimiscegenation statutes, and abortion, even though all cited examples pertain to fundamental rights analyzed under strict scrutiny, not under rational basis test; civil marriage as "a right of fundamental importance"; noting State policy of "preventing discrimination on the basis of sexual orientation"; prohibition against same-sex marriage inconsistent with "gender neutral laws promoting stable families," and "rooted in persistent prejudices against" homosexuals; prohibition against same-sex marriage "violated the basic premises of individual liberty"). In short, while claiming to apply a mere rational basis test, the court's opinion works up an enormous head of steam by repeated invocations of avenues by which to subject the statute to strict scrutiny, apparently hoping that that head of steam will generate momentum sufficient to propel the opinion across the yawning chasm of the very deferential rational basis test.

[¶ 97] Shorn of these emotion-laden invocations, the opinion ultimately opines that the Legislature is acting irrationally when it grants benefits to a proven successful family structure while denying the same benefits to a recent, perhaps promising, but essentially untested alternate family structure. Placed in a more neutral context, the court would never find any irrationality in such an approach. For example, if the issue were government subsidies and tax benefits promoting use of an established technology for energy efficient heating, the court would find no equal protection or due process violation in the Legislature's decision not to grant the same benefits to an inventor or manufacturer of some new, alternative technology who did not yet have sufficient data to prove that that new technology was just as good as the established technology. That the early results from preliminary testing of the new technology might look very promising, or that the theoretical underpinnings of the new technology might appear flawless, would not make it irrational for the Legislature to grant subsidies and tax breaks to the established technology and deny them to the still unproved newcomer in the field. While programs that affect families and children register higher on our emotional scale than programs affecting energy efficiency, our standards for what is or is not "rational" should not be bent by those emotional tugs. Where, as here, there is no ground for applying strict scrutiny, the emotionally compelling nature of the subject matter should not affect the manner in which we apply the rational basis test.

[¶ 98] Or, to the extent that the court is going to invoke such emotion-laden and value-laden rhetoric as a means of heightening the degree of scrutiny to be applied, the same form of rhetoric can be employed to justify the Legislature's proceeding with extreme caution in this area. In considering whether the Legislature has a rational reason for postponing a dramatic change to the definition of marriage, it is surely pertinent to the inquiry to recognize that this proffered change affects not just a load-bearing wall of our social structure but the very cornerstone of that structure (see Cordy, J., dissenting herein). Before making a fundamental alteration to that cornerstone, it is eminently rational for the Legislature to require a high degree of certainty as to the precise consequences of that alteration, to make sure that it can be done safely, without either temporary or lasting damage to the structural integrity of the entire edifice. The court today blithely assumes that there are no such dangers and that it is safe to proceed (an assumption that is not supported by anything more than the court's blind faith that it is so).

[¶ 99] More importantly, it is not our confidence in the lack of adverse consequences that is at issue, or even whether that confidence is justifiable. The issue is whether it is rational to reserve judgment on whether this change can be made at this time without damaging the institution of marriage or adversely affecting the critical role it has played in our society. Absent consensus on the issue (which obviously does not exist), or unanimity amongst scientists studying the issue (which also does not exist), or a more prolonged period of observation of this new family structure (which has not yet been possible), it is rational for the Legislature to postpone any redefinition of marriage that would include same-sex couples until such time as it is certain that that redefinition will not have unintended and undesirable social consequences. Through the political process, the people may decide when the benefits of extending civil marriage to same-sex couples have been shown to outweigh whatever risks--be they palpable or ephemeral--are involved. However minimal the risks of that redefinition of marriage may seem to us from our vantage point, it is not up to us to decide what risks society must run, and it is inappropriate for us to abrogate that power to ourselves merely because we are confident that "it is the right thing to do" (Greaney, J., concurring).

[¶ 100] As a matter of social history, today's opinion may represent a great turning point that many will hail as a tremendous step toward a more just society. As a matter of constitutional jurisprudence, however, the case stands as an aberration. To reach the result it does, the court has tortured the rational basis test beyond recognition. I fully appreciate the strength of the temptation to find this particular law unconstitutional--there is much to be said for the argument that excluding gay and lesbian couples from the benefits of civil marriage is cruelly unfair and hopelessly outdated; the inability to marry has a profound impact on the personal lives of committed gay and lesbian couples (and their children) to whom we are personally close (our friends, neighbors, family members, classmates, and co-workers); and our resolution of this issue takes place under the intense glare of national and international publicity. Speaking metaphorically, these factors have combined to turn the case before us into a "perfect storm" of a constitutional question. In my view, however, such factors make it all the more imperative that we adhere precisely and scrupulously to the established guideposts of our constitutional jurisprudence, a jurisprudence that makes the rational basis test an extremely deferential one that focuses on the rationality, not the persuasiveness, of the potential justifications for the classifications in the legislative scheme. I trust that, once this particular "storm" clears, we will return to the rational basis test as it has always been understood and applied. Applying that deferential test in the manner it is customarily applied, the exclusion of gay and lesbian couples from the institution of civil marriage passes constitutional muster. I respectfully dissent.

CORDY, J. (dissenting, with whom Spina and Sosman, JJ., join).

[¶ 101] The court's opinion concludes that the Department of Public Health has failed to identify any "constitutionally adequate reason" for limiting civil marriage to opposite-sex unions, and that there is no "reasonable relationship" between a disqualification of same-sex couples who wish to enter into a civil marriage and the protection of public health, safety, or general welfare. Consequently, it holds that the marriage statute cannot withstand scrutiny under the Massachusetts Constitution. Because I find these conclusions to be unsupportable in light of the nature of the rights and regulations at issue, the presumption of constitutional validity and significant deference afforded to legislative enactments, and the "undesirability of the judiciary substituting its notions of correct policy for that of a popularly elected Legislature" responsible for making such policy, Zayre Corp. v. Attorney Gen., 372 Mass. 423, 433 (1977), I respectfully dissent. Although it may be desirable for many reasons to extend to same-sex couples the benefits and burdens of civil marriage (and the plaintiffs have made a powerfully reasoned case for that extension), that decision must be made by the Legislature, not the court.

[¶ 102] If a statute either impairs the exercise of a fundamental right protected by the due process or liberty provisions of our State Constitution, or discriminates based on a constitutionally suspect classification such as sex, it will be subject to strict scrutiny when its validity is challenged. See Blixt v. Blixt, 437 Mass. 649, 655-656, 660-661 (2002) (fundamental right); Lowell v. Kowalski, 380 Mass. 663, 666 (1980) (sex-based classification). If it does neither, a statute "will be upheld if it is 'rationally related to a legitimate State purpose.'" Hallett v. Wrentham, 398 Mass. 550, 557 (1986), quoting Paro v. Longwood Hosp., 373 Mass. 645, 649 (1977). This test, referred to in State and Federal constitutional jurisprudence as the "rational basis test," is virtually identical in substance and effect to the test applied to a law promulgated under the State's broad police powers (pursuant to which the marriage statutes and most other licensing and regulatory laws are enacted): that is, the law is valid if it is reasonably related to the protection of public health, safety, or general welfare. See, e.g., Leigh v. Board of Registration in Nursing, 395 Mass. 670, 682-683 (1985) (applying rational basis review to question of State exercise of police power).

[¶ 103] The Massachusetts marriage statute does not impair the exercise of a recognized fundamental right, or discriminate on the basis of sex in violation of the equal rights amendment to the Massachusetts Constitution. Consequently, it is subject to review only to determine whether it satisfies the rational basis test. Because a conceivable rational basis exists upon which the Legislature could conclude that the marriage statute furthers the legitimate State purpose of ensuring, promoting, and supporting an optimal social structure for the bearing and raising of children, it is a valid exercise of the State's police power.

Limiting marriage to the union of one man and one

woman does not impair the exercise of a fundamental right.

[¶ 104] Civil marriage is an institution created by the State. In Massachusetts, the marriage statutes are derived from English common law, see Commonwealth v. Knowlton, 2 Mass. 530, 534 (1807), and were first enacted in colonial times. Commonwealth v. Munson, 127 Mass. 459, 460 (1879). They were enacted to secure public interests and not for religious purposes or to promote personal interests or aspirations. As the court notes in its opinion, the institution of marriage is "the legal union of a man and woman as husband and wife," and it has always been so under Massachusetts law, colonial or otherwise.

[¶ 105] The plaintiffs contend that because the right to choose to marry is a "fundamental" right, the right to marry the person of one's choice, including a member of the same sex, must also be a "fundamental" right. While the court stops short of deciding that the right to marry someone of the same sex is "fundamental" such that strict scrutiny must be applied to any statute that impairs it, it nevertheless agrees with the plaintiffs that the right to choose to marry is of fundamental importance ("among the most basic" of every person's "liberty and due process rights") and would be "hollow" if an individual was foreclosed from "freely choosing the person with whom to share ... the ... institution of civil marriage." Hence, it concludes that a marriage license cannot be denied to an individual who wishes to marry someone of the same sex. In reaching this result the court has transmuted the "right" to marry into a right to change the institution of marriage itself. This feat of reasoning succeeds only if one accepts the proposition that the definition of the institution of marriage as a union between a man and a woman is merely "conclusory" (as suggested by Greaney, J., concurring), rather than the basis on which the "right" to partake in it has been deemed to be of fundamental importance. In other words, only by assuming that "marriage" includes the union of two persons of the same sex does the court conclude that restricting marriage to opposite-sex couples infringes on the "right" of same-sex couples of "marry."

[¶ 106] The plaintiffs ground their contention that they have a fundamental right to marry a person of the same sex in a long line of Supreme Court decisions, e.g., Turner v. Safley, 482 U.S. 78 (1987); Zablocki v. Redhail, 434 U.S. 374 (1978); Loving v. Virginia, 388 U.S. 1 (1967); Griswold v. Connecticut, 381 U.S. 479 (1965); Skinner v. Oklahoma, 316 U.S. 535 (1942), that discuss the importance of marriage. In context, all of these decisions and their discussions are about the "fundamental" nature of the institution of marriage as it has existed and been understood in this country, not as the court has redefined it today. Even in that context, its "fundamental" nature is derivative of the nature of the interests that underlie or are associated with it. An examination of those interests reveals that they are either not shared by same-sex couples or not implicated by the marriage statutes.

[¶ 107] Supreme Court cases that have described marriage or the right to marry as "fundamental" have focused primarily on the underlying interest of every individual in procreation, which, historically, could only legally occur within the construct of marriage because sexual intercourse outside of marriage was a criminal act. In Skinner v. Oklahoma, supra, the first case to characterize marriage as a "fundamental" right, the Supreme Court stated, as its rationale for striking down a sterilization statute, that "[m]arriage and procreation are fundamental to the very existence of the race." In concluding that a sterilized individual "is forever deprived of a basic liberty," the Court was obviously referring to procreation rather than marriage, as this court recognized in Matter of Moe, 385 Mass. 555, 560 (1982). Similarly, in Loving v. Virginia, supra, in which the United States Supreme Court struck down Virginia's antimiscegenation statute, the Court implicitly linked marriage with procreation in describing marriage as "fundamental to our very existence." In Zablocki v. Redhail, supra, the Court expressly linked the right to marry with the right to procreate, concluding that "if [the plaintiff's] right to procreate means anything at all, it must imply some right to enter the only relationship in which the State ... allows sexual relations legally to take place." Once again, in Turner v. Safley, supra, striking a State regulation that curtailed the right of an inmate to marry, the Court included among the important attributes of such marriages the "expectation that [the marriage] ultimately will be fully consummated." See Milford v. Worcester, 7 Mass. 48, 52 (1810) (purpose of marriage is "to regulate, chasten, and refine, the intercourse between the sexes; and to multiply [and] preserve ... the species"). Because same-sex couples are unable to procreate on their own, any right to marriage they may possess cannot be based on their interest in procreation, which has been essential to the Supreme Court's denomination of the right to marry as fundamental.

[¶ 108] Supreme Court cases recognizing a right to privacy in intimate decision-making, e.g., Griswold v. Connecticut, supra (striking down statute prohibiting use of contraceptives); Roe v. Wade, 410 U.S. 113 (1973) (striking down statute criminalizing abortion), have also focused primarily on sexual relations and the decision whether or not to procreate, and have refused to recognize an "unlimited right" to privacy. Massachusetts courts have been no more willing than the Federal courts to adopt a "universal[ ]" "privacy doctrine," Marcoux v. Attorney Gen., 375 Mass. 63, 67 (1978), or to derive "controversial 'new' rights from the Constitution." Aime v. Commonwealth, 414 Mass. 667, 674 n. 10 (1993).

[¶ 109] What the Griswold Court found "repulsive to the notions of privacy surrounding the marriage relationship" was the prospect of "allow[ing] the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives." Griswold v. Connecticut, supra. See Moe v. Secretary of Admin. & Fin., 382 Mass. 629, 658 (1981), quoting L. Tribe, American Constitutional Law 924 (1978) (finding it "difficult to imagine a clearer case of bodily intrusion" than being forced to bear a child). When Justice Goldberg spoke of "marital relations" in the context of finding it "difficult to imagine what is more private or more intimate than a husband and wife's marital relations[hip]," Griswold v. Connecticut, supra (Goldberg, J., concurring), he was obviously referring to sexual relations. Similarly, in Lawrence v. Texas, 539 U.S. 558 (2003), it was the criminalization of private sexual behavior that the Court found violative of the petitioners' liberty interest.

[¶ 110] In Massachusetts jurisprudence, protected decisions generally have been limited to those concerning "whether or not to beget or bear a child," Matter of Moe, 385 Mass. 555, 564 (1982) (see Opinion of the Justices, 423 Mass. 1201, 1234-1235 [1996] ["focus of (the Griswold and Roe cases) and the cases following them has been the intrusion ... into the especially intimate aspects of a person's life implicated in procreation and childbearing"]); how to raise a child, see Care & Protection of Robert, 408 Mass. 52, 58, 60 (1990); or whether or not to accept medical treatment, see Brophy v. New England Sinai Hosp., Inc., 398 Mass. 417, 430 (1986); Superintendent of Belchertown State Sch. v. Saikewicz, 373 Mass. 728, 742 (1977), none of which is at issue here. See also Commonwealth v. Balthazar, 366 Mass. 298, 301 (1974) (statute punishing unnatural and lascivious acts does not apply to sexual conduct engaged in by adults in private, in light of "articulation of the constitutional right of an individual to be free from government regulation of certain sex related activities").

[¶ 111] The marriage statute, which regulates only the act of obtaining a marriage license, does not implicate privacy in the sense that it has found constitutional protection under Massachusetts and Federal law. Cf. Commonwealth v. King, 374 Mass. 5, 14 (1977) (solicitation of prostitution "while in a place to which the public had access" implicated no "constitutionally protected rights of privacy"); Marcoux v. Attorney Gen., supra (right to privacy, at most, protects conduct "limited more or less to the hearth"). It does not intrude on any right that the plaintiffs have to privacy in their choices regarding procreation, an intimate partner or sexual relations. The plaintiffs' right to privacy in such matters does not require that the State officially endorse their choices in order for the right to be constitutionally vindicated.

[¶ 112] Although some of the privacy cases also speak in terms of personal autonomy, no court has ever recognized such an open-ended right. "That many of the rights and liberties protected by the Due Process Clause sound in personal autonomy does not warrant the sweeping conclusion that any and all important, intimate, and personal decisions are so protected...." Washington v. Glucksberg, 521 U.S. 702, 727 (1997). Such decisions are protected not because they are important, intimate, and personal, but because the right or liberty at stake is "so deeply rooted in our history and traditions, or so fundamental to our concept of constitutionally ordered liberty" that it is protected by due process. Accordingly, the Supreme Court has concluded that while the decision to refuse unwanted medical treatment is fundamental, Cruzan v. Director, Mo. Dep't of Health, 497 U.S. 261, 278 (1990), because it is deeply rooted in our nation's history and tradition, the equally personal and profound decision to commit suicide is not because of the absence of such roots. Washington v. Glucksberg, supra.

[¶ 113] While the institution of marriage is deeply rooted in the history and traditions of our country and our State, the right to marry someone of the same sex is not. No matter how personal or intimate a decision to marry someone of the same sex might be, the right to make it is not guaranteed by the right of personal autonomy.

[¶ 114] The protected right to freedom of association, in the sense of freedom of choice "to enter into and maintain certain intimate human relationships," Roberts v. United States Jaycees, 468 U.S. 609, 617 (1984) (as an element of liberty or due process rather than free speech), is similarly limited and unimpaired by the marriage statute. As recognized by the Supreme Court, that right affords protection only to "certain kinds of highly personal relationships," such as those between husband and wife, parent and child, and among close relatives that "have played a critical role in the culture and traditions of the Nation" and are "deeply rooted in this Nation's history and tradition." Moore v. East Cleveland, 431 U.S. 494, 498-499, 503 (1977) (distinguishing on this basis between family and nonfamily relationships). Unlike opposite-sex marriages, which have deep historic roots, or the parent-child relationship, which reflects a "strong tradition" founded on "the history and culture of Western civilization" and "is now established beyond debate as an enduring American tradition," Wisconsin v. Yoder, 406 U.S. 205, 232 (1972); or extended family relationships, which have been "honored throughout our history," Moore v. East Cleveland, supra, same-sex relationships, although becoming more accepted, are certainly not so "deeply rooted in this Nation's history and tradition" as to warrant such enhanced constitutional protection.

[¶ 115] Although "expressions of emotional support and public commitment" have been recognized as among the attributes of marriage, which, "[t]aken together ... form a constitutionally protected marital relationship" (emphasis added), Turner v. Safley, supra, those interests, standing alone, are not the source of a fundamental right to marry. While damage to one's "status in the community" may be sufficient harm to confer standing to sue, Lowell v. Kowalski, 380 Mass. 663, 667 (1980), such status has never been recognized as a fundamental right. See Paul v. Davis, 424 U.S. 693, 701 (1976) (mere damage to reputation does not constitute deprivation of "liberty").

[¶ 116] Finally, the constitutionally protected interest in child rearing, recognized in Meyer v. Nebraska, 262 U.S. 390, 399 (1923); Pierce v. Society of Sisters, 268 U.S. 510, 534-535 (1925); and Care & Protection of Robert, supra, is not implicated or infringed by the marriage statute here. The fact that the plaintiffs cannot marry has no bearing on their independently protected constitutional rights as parents which, as with opposite-sex parents, are limited only by their continued fitness and the best interests of their children. Bezio v. Patenaude, 381 Mass. 563, 579 (1980) (courts may not use parent's sexual orientation as reason to deny child custody).

[¶ 117] Because the rights and interests discussed above do not afford the plaintiffs any fundamental right that would be impaired by a statute limiting marriage to members of the opposite sex, they have no fundamental right to be declared "married" by the State.

[¶ 118] Insofar as the right to marry someone of the same sex is neither found in the unique historical context of our Constitution nor compelled by the meaning ascribed by this court to the liberty and due process protections contained within it, should the court nevertheless recognize it as a fundamental right? The consequences of deeming a right to be "fundamental" are profound, and this court, as well as the Supreme Court, has been very cautious in recognizing them. Such caution is required by separation of powers principles. If a right is found to be "fundamental," it is, to a great extent, removed from "the arena of public debate and legislative action"; utmost care must be taken when breaking new ground in this field "lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of [judges]." Washington v. Glucksberg, supra.

[¶ 119] "[T]o rein in" the otherwise potentially unlimited scope of substantive due process rights, both Federal and Massachusetts courts have recognized as "fundamental" only those "rights and liberties which are, objectively, 'deeply rooted in this Nation's history and tradition,' [Moore v. East Cleveland, supra] ... and 'implicit in the concept of ordered liberty'" (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937)). See Dutil, petitioner, 437 Mass. 9, 13 (2002) (same). In the area of family-related rights in particular, the Supreme Court has emphasized that the "Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted." Moore v. East Cleveland, supra.

[¶ 120] Applying this limiting principle, the Supreme Court, as noted above, declined to recognize a fundamental right to physician-assisted suicide, which would have required "revers[ing] centuries of legal doctrine and practice, and strik[ing] down the considered policy choice of almost every State." Washington v. Glucksberg, supra. While recognizing that public attitudes toward assisted suicide are currently the subject of "earnest and profound debate," the Court nevertheless left the continuation and resolution of that debate to the political arena, "as it should be in a democratic society."

[¶ 121] Similarly, Massachusetts courts have declined to recognize rights that are not so deeply rooted. As this court noted in considering whether to recognize a right of terminally ill patients to refuse life-prolonging treatment, "the law always lags behind the most advanced thinking in every area," and must await "some common ground, some consensus." Superintendent of Belchertown State Sch. v. Saikewicz, 373 Mass. 728, 737 (1977), quoting Burger, The Law and Medical Advances, 67 Annals Internal Med. Supp. 7, 15, 17 (1967). See Blixt v. Blixt, 437 Mass. 649, 662-663 n. 22 (2002) ("social consensus about family relationships is relevant to the constitutional limits on State intervention").

[¶ 122] This is not to say that a statute that has no rational basis must nevertheless be upheld as long as it is of ancient origin. However, "[t]he long history of a certain practice ... and its acceptance as an uncontroversial part of our national and State tradition do suggest that [the court] should reflect carefully before striking it down." Colo v. Treasurer & Receiver Gen., 378 Mass. 550, 557 (1979). As this court has recognized, the "fact that a challenged practice 'is followed by a large number of states ... is plainly worth considering in determining whether the practice "offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental."'" Commonwealth v. Kostka, 370 Mass. 516, 533 (1976), quoting Leland v. Oregon, 343 U.S. 790, 798 (1952).

[¶ 123] Although public attitudes toward marriage in general and same-sex marriage in particular have changed and are still evolving, "the asserted contemporary concept of marriage and societal interests for which [plaintiffs] contend" are "manifestly [less] deeply founded" than the "historic institution" of marriage. Matter of the Estate of Cooper, 187 A.D.2d 128, 133-134 (N.Y.1993). Indeed, it is not readily apparent to what extent contemporary values have embraced the concept of same-sex marriage. Perhaps the "clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country's legislatures," Atkins v. Virginia, 536 U.S. 304, 312 (2002), quoting Penry v. Lynaugh, 492 U.S. 302, 331 (1989). No State Legislature has enacted laws permitting same-sex marriages; and a large majority of States, as well as the United States Congress, have affirmatively prohibited the recognition of such marriages for any purpose.

[¶ 124] Given this history and the current state of public opinion, as reflected in the actions of the people's elected representatives, it cannot be said that "a right to same-sex marriage is so rooted in the traditions and collective conscience of our people that failure to recognize it would violate the fundamental principles of liberty and justice that lie at the base of all our civil and political institutions. Neither ... [is] a right to same-sex marriage ... implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if it were sacrificed." Baehr v. Lewin, 74 Haw. 530, 556-557 (1993). See Dean v. District of Columbia, 653 A.2d 307, 333 (D.C.1995) (per curiam) (Ferren, J., concurring in part and dissenting in part); Baker v. Nelson, 291 Minn. 310, 312 (1971); Storrs v. Holcomb, 168 Misc.2d 898, 899-900 (N.Y.Sup.Ct.1996). The one exception was the Alaska Superior Court, which relied on that State's Constitution's express and broadly construed right to privacy. Brause, 1998 WL 88743. In such circumstances, the law with respect to same-sex marriages must be left to develop through legislative processes, subject to the constraints of rationality, lest the court be viewed as using the liberty and due process clauses as vehicles merely to enforce its own views regarding better social policies, a role that the strongly worded separation of powers principles in art. 30 of the Declaration of Rights of our Constitution forbids, and for which the court is particularly ill suited.

The marriage statute, in limiting marriage to heterosexual couples,

does not constitute discrimination on the basis of sex in violation of the

Equal Rights Amendment to the Massachusetts Constitution.

[¶ 125] In his concurrence, Justice Greaney contends that the marriage statute constitutes discrimination on the basis of sex in violation of art. 1 of the Declaration of Rights as amended by art. 106 of the Amendments to the Constitution of the Commonwealth, the Equal Rights Amendment (ERA). Such a conclusion is analytically unsound and inconsistent with the legislative history of the ERA.

[¶ 126] The central purpose of the ERA was to eradicate discrimination against women and in favor of men or vice versa. See Attorney Gen. v. Massachusetts Interscholastic Athletic Ass'n, 378 Mass. 342, 357 (1979). Consistent with this purpose, we have construed the ERA to prohibit laws that advantage one sex at the expense of the other, but not laws that treat men and women equally (assuming that "separate but equal" treatment of males and females would be constitutionally permissible). The Massachusetts marriage statute does not subject men to different treatment from women; each is equally prohibited from precisely the same conduct. See Baker v. State, 170 Vt. 194, 215 n. 13 (1999) ("there is no discrete class subject to differential treatment solely on the basis of sex"). Compare Commonwealth v. King, 374 Mass. 5, 16 (1977) (law prohibiting prostitution applied to both male and female prostitutes and therefore did not discriminate), and Personnel Adm'r of Mass. v. Feeney, 442 U.S. 256, 274-275 (1979) (declining to characterize veterans' preference as sex discrimination because it applied to both male and female veterans), with Attorney Gen. v. Massachusetts Interscholastic Athletic Ass'n, supra, and Lowell v. Kowalski, 380 Mass. 663 (1980) (where statutes and rules at issue advantaged one sex over another).

[¶ 127] Of course, a statute that on its face treats protected groups equally may still harm, stigmatize, or advantage one over the other. Such was the circumstance in Loving v. Virginia, 388 U.S. 1 (1967), where the Supreme Court struck down a State statute that made interracial marriage a crime, as constituting invidious discrimination on the basis of race. While the statute purported to apply equally to whites and nonwhites, the Court found that it was intended and structured to favor one race (white) and disfavor all others (nonwhites). The statute's legislative history demonstrated that its purpose was not merely to punish interracial marriage, but to do so for the sole benefit of the white race. As the Supreme Court readily concluded, the Virginia law was "designed to maintain White Supremacy." Consequently, there was a fit between the class that the law was intended to discriminate against (nonwhite races) and the classification enjoying heightened protection (race).

[¶ 128] By contrast, here there is no evidence that limiting marriage to opposite-sex couples was motivated by sexism in general or a desire to disadvantage men or women in particular. Moreover, no one has identified any harm, burden, disadvantage, or advantage accruing to either gender as a consequence of the Massachusetts marriage statute. In the absence of such effect, the statute limiting marriage to couples of the opposite sex does not violate the ERA's prohibition of sex discrimination.

[¶ 129] This conclusion is buttressed by the legislative history of the ERA, which was adopted by the voters on November 2, 1976, after being approved by constitutional conventions of the Legislature on August 15, 1973, (by a vote of 261-0) and May 14, 1975 (by a vote of 217-55).

[¶ 130] In anticipation of its adoption, the Legislature enacted and, on June 21, 1975, the Governor approved a "Resolve providing for an investigation and study by a special commission relative to the effect of the ratification of the proposed amendments to the Constitution of the Commonwealth of Massachusetts and the Constitution of the United States prohibiting discrimination on account of sex upon the laws, business communities and public in the Commonwealth." One of the principal tasks of the commission was to catalog the aspects of the General Laws that would have to be amended for the statutory code to comply with the mandate of the proposed amendment that equality not be abridged on the basis of sex.

[¶ 131] On October 19, 1976, just before the general election at which the amendment was to be considered, the commission filed its Interim Report, which focused on the effect of the Massachusetts ERA on the laws of the Commonwealth. A section of the report, entitled "Areas Unaffected by the Equal Rights Amendment," addressed some of the legal regimes that would not be affected by the adoption of the ERA. One such area was "Homosexual Marriage," about which the commission stated:

"An equal rights amendment will have no effect upon the allowance or denial of homosexual marriages. The equal rights amendment is not concerned with the relationship of two persons of the same sex; it only addresses those laws or public-related actions which treat persons of opposite sexes differently. The Washington Court of Appeals has already stated that the equal rights amendment to its state constitution did not afford a basis for validating homosexual marriages. In Colorado, the attorney general has likewise issued an opinion that the state equal rights amendment did not validate homosexual marriage. There are no cases which have used a state equal rights amendment to either validate or require the allowance of homosexual marriages."

[¶ 132] The views of the commission were reflected in the public debate surrounding the passage of the ERA that focused on gender equality. Claims that the ERA might be the basis for validating marriages between same-sex couples were labelled as "exaggerated" and "unfounded." For example, before the vote, the Boston Globe published an editorial discussing and urging favorable action on the ERA. In making its case, it noted that "[t]hose urging a no vote ... argue that the amendment would ... legitimize marriage between people of the same sex [and other changes]. In reality, the proposed amendment would require none of these things.” And in the aftermath of the vote, the Boston Globe heralded the electorate's acceptance of "the arguments of proponents that the proposal would not result in many far-reaching or threatening changes."

[¶ 133] While the court, in interpreting a constitutional amendment, is not bound to accept either the views of a legislative commission studying and reporting on the amendment's likely effects, or of public commentary and debate contemporaneous with its passage, it ought to be wary of completely disregarding what appears to be the clear intent of the people recently recorded in our constitutional history. This is particularly so where the plain wording of the amendment does not require the result it would reach.

The marriage statute satisfies the rational basis standard.

[¶ 134] The burden of demonstrating that a statute does not satisfy the rational basis standard rests on the plaintiffs. It is a weighty one. "[A] reviewing court will presume a statute's validity, and make all rational inferences in favor of it.... The Legislature is not required to justify its classifications, nor provide a record or finding in support of them." Paro v. Longwood Hosp., 373 Mass. 645, 650 (1977). The statute "only need[s to] be supported by a conceivable rational basis." Fine v. Contributory Retirement Appeal Bd., 401 Mass. 639, 641 (1988). See Massachusetts Fed'n of Teachers v. Board of Educ., 436 Mass. 763, 771-772 (2002). As this court stated in Shell Oil Co. v. Revere, 383 Mass. 682, 687-688 (1981):

"[I]t is not the court's function to launch an inquiry to resolve a debate which has already been settled in the legislative forum. '[I]t [is] the judge's duty ... to give effect to the will of the people as expressed in the statute by their representative body. It is in this way ... that the doctrine of separation of powers is given meaning.' Commonwealth v. Leis, 355 Mass. 189, 202 (1969) (Kirk, J., concurring).

“This respect for the legislative process means that it is not the province of the court to sit and weigh conflicting evidence supporting or opposing a legislative enactment....

"Although persons challenging the constitutionality of legislation may introduce evidence in support of their claim that the legislation is irrational ... they will not prevail if 'the question is at least debatable' in view of the evidence which may have been available to the Legislature. United States v. Carolene Prods. Co., 304 U.S. 144, 154 (1938)."

[¶ 135] The "time tested wisdom of the separation of powers" requires courts to avoid "judicial legislation in the guise of new constructions to meet real or supposed new popular viewpoints, preserving always to the Legislature alone its proper prerogative of adjusting the statutes to changed conditions." Pielech v. Massasoit Greyhound, Inc., 423 Mass. 534, 539, 540 (1996), quoting Commonwealth v. A Juvenile, 368 Mass. 580, 595 (1975).

[¶ 136] In analyzing whether a statute satisfies the rational basis standard, we look to the nature of the classification embodied in the enactment, then to whether the statute serves a legitimate State purpose, and finally to whether the classification is reasonably related to the furtherance of that purpose. With this framework, we turn to the challenged statute, G.L. c. 207, which authorizes local town officials to issue licenses to couples of the opposite sex authorizing them to enter the institution of civil marriage.

[¶ 137] 1. Classification. The nature of the classification at issue is readily apparent. Opposite-sex couples can obtain a license and same-sex couples cannot. The granting of this license, and the completion of the required solemnization of the marriage, opens the door to many statutory benefits and imposes numerous responsibilities. The fact that the statute does not permit such licenses to be issued to couples of the same sex thus bars them from civil marriage. The classification is not drawn between men and women or between heterosexuals and homosexuals, any of whom can obtain a license to marry a member of the opposite sex; rather, it is drawn between same-sex couples and opposite-sex couples.

[¶ 138] 2. State purpose. The court's opinion concedes that the civil marriage statute serves legitimate State purposes, but further investigation and elaboration of those purposes is both helpful and necessary.

[¶ 139] Civil marriage is the institutional mechanism by which societies have sanctioned and recognized particular family structures, and the institution of marriage has existed as one of the fundamental organizing principles of human society. See C.N. Degler, The Emergence of the Modern American Family, in The American Family in Social-Historical Perspective 61 (3d ed.1983); A.J. Hawkins, Introduction, in Revitalizing the Institution of Marriage for the Twenty-First Century: An Agenda for Strengthening Marriage xiv (2002); C. Lasch, Social Pathologists and the Socialization of Reproduction, in The American Family in Social-Historical Perspective; W.J. O'Donnell & D.A. Jones, Marriage and Marital Alternatives 1 (1982); L. Saxton, The Individual, Marriage, and the Family 229-230, 260 (1968); M.A. Schwartz & B.M. Scott, Marriages and Families: Diversity and Change 4 (1994); Wardle, "Multiply and Replenish": Considering Same-Sex Marriage in Light of State Interests in Marital Procreation, 24 Harv. J.L. & Pub. Pol'y 771, 777-780 (2001); J.Q. Wilson, The Marriage Problem: How Our Culture Has Weakened Families 28, 40, 66-67 (2002). Marriage has not been merely a contractual arrangement for legally defining the private relationship between two individuals (although that is certainly part of any marriage). Rather, on an institutional level, marriage is the "very basis of the whole fabric of civilized society," J.P. Bishop, Commentaries on the Law of Marriage and Divorce, and Evidence in Matrimonial Suits Section 32 (1852), and it serves many important political, economic, social, educational, procreational, and personal functions.

[¶ 140] Paramount among its many important functions, the institution of marriage has systematically provided for the regulation of heterosexual behavior, brought order to the resulting procreation, and ensured a stable family structure in which children will be reared, educated, and socialized. See Milford v. Worcester, 7 Mass. 48, 52 (1810) (civil marriage "intended to regulate, chasten, and refine, the intercourse between the sexes; and to multiply, preserve, and improve the species"). See also P. Blumstein & P. Schwartz, American Couples: Money, Work, Sex 29 (1983); C.N. Degler, supra; G. Douglas, Marriage, Cohabitation, and Parenthood--From Contract to Status?, in Cross Currents: Family Law and Policy in the United States and England 223 (2000); S.L. Nock, The Social Costs of De-Institutionalizing Marriage, in Revitalizing the Institution of Marriage for the Twenty-First Century: An Agenda for Strengthening Marriage, supra; L. Saxton, supra; M.A. Schwartz & B.M. Scott, supra; Wardle, supra; J.Q. Wilson, supra. Admittedly, heterosexual intercourse, procreation, and child care are not necessarily conjoined (particularly in the modern age of widespread effective contraception and supportive social welfare programs), but an orderly society requires some mechanism for coping with the fact that sexual intercourse commonly results in pregnancy and childbirth. The institution of marriage is that mechanism.

[¶ 141] The institution of marriage provides the important legal and normative link between heterosexual intercourse and procreation on the one hand and family responsibilities on the other. The partners in a marriage are expected to engage in exclusive sexual relations, with children the probable result and paternity presumed. See G.L. c. 209C, Section 6 ("a man is presumed to be the father of a child ... if he is or has been married to the mother and the child was born during the marriage, or within three hundred days after the marriage was terminated by death, annulment or divorce"). Whereas the relationship between mother and child is demonstratively and predictably created and recognizable through the biological process of pregnancy and childbirth, there is no corresponding process for creating a relationship between father and child. Similarly, aside from an act of heterosexual intercourse nine months prior to childbirth, there is no process for creating a relationship between a man and a woman as the parents of a particular child. The institution of marriage fills this void by formally binding the husband-father to his wife and child, and imposing on him the responsibilities of fatherhood. See J.Q. Wilson, supra. See also P. Blumstein & P. Schwartz, supra; C.N. Degler, supra; G. Douglas, supra; S.L. Nock, supra; L. Saxton, supra; M.A. Schwartz & B.M. Scott, supra; Wardle, supra. The alternative, a society without the institution of marriage, in which heterosexual intercourse, procreation, and child care are largely disconnected processes, would be chaotic.

[¶ 142] The marital family is also the foremost setting for the education and socialization of children. Children learn about the world and their place in it primarily from those who raise them, and those children eventually grow up to exert some influence, great or small, positive or negative, on society. The institution of marriage encourages parents to remain committed to each other and to their children as they grow, thereby encouraging a stable venue for the education and socialization of children. See P. Blumstein & P. Schwartz, supra; C.N. Degler, supra; S.L. Nock, supra; C. Lasch, supra; M.A. Schwartz & B.M. Scott, supra. More macroscopically, construction of a family through marriage also formalizes the bonds between people in an ordered and institutional manner, thereby facilitating a foundation of interconnectedness and interdependency on which more intricate stabilizing social structures might be built. See M. Grossberg, Governing the Hearth: Law and Family in Nineteenth-Century America 10 (1985); C. Lasch, supra; L. Saxton, supra; J.Q. Wilson, supra.

[¶ 143] This court, among others, has consistently acknowledged both the institutional importance of marriage as an organizing principle of society, and the State's interest in regulating it. See French v. McAnarney, 290 Mass. 544, 546 (1935) ("Marriage is not merely a contract between the parties. It is the foundation of the family. It is a social institution of the highest importance. The Commonwealth has a deep interest that its integrity is not jeopardized"); Milford v. Worcester, 7 Mass. 48, 52 (1810) ("Marriage, being essential to the peace and harmony, and to the virtues and improvements of civil society, it has been, in all well-regulated governments, among the first attentions of the civil magistrate to regulate [it]"). See also Skinner v. Oklahoma, supra ("Marriage and procreation are fundamental to the very existence and survival of the [human] race"); Maynard v. Hill, 125 U.S. 190, 211 (1888) (marriage "is an institution, in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress"); Murphy v. Ramsey, 114 U.S. 15, 45 (1885) ("no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth ... than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman ... the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement"); Reynolds v. United States, 98 U.S. 145, 165 (1878) ("Upon [marriage] society may be said to be built, and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required to deal").

[¶ 144] It is undeniably true that dramatic historical shifts in our cultural, political, and economic landscape have altered some of our traditional notions about marriage, including the interpersonal dynamics within it, the range of responsibilities required of it as an institution, and the legal environment in which it exists. Nevertheless, the institution of marriage remains the principal weave of our social fabric. See C.N. Degler, supra; A.J. Hawkins, Introduction, in Revitalizing the Institution of Marriage for the Twenty-First Century: An Agenda for Strengthening Marriage xiv (2002); C. Lasch, supra; W.J. O'Donnell & D.A. Jones, Marriage and Marital Alternatives 1 (1982); L. Saxton, supra; M.A. Schwartz & B.M. Scott, supra; Wardle, supra; J.Q. Wilson, supra. A family defined by heterosexual marriage continues to be the most prevalent social structure into which the vast majority of children are born, nurtured, and prepared for productive participation in civil society, see Children's Living Arrangements and Characteristics: March, 2002, United States Census Bureau Current Population Reports at 3 (June, 2003) (in 2002, 69% of children lived with two married parents, 23% lived with their mother, 5% lived with their father, and 4% lived in households with neither parent present).

[¶ 145] It is difficult to imagine a State purpose more important and legitimate than ensuring, promoting, and supporting an optimal social structure within which to bear and raise children. At the very least, the marriage statute continues to serve this important State purpose.

[¶ 146] 3. Rational relationship. The question we must turn to next is whether the statute, construed as limiting marriage to couples of the opposite sex, remains a rational way to further that purpose. Stated differently, we ask whether a conceivable rational basis exists on which the Legislature could conclude that continuing to limit the institution of civil marriage to members of the opposite sex furthers the legitimate purpose of ensuring, promoting, and supporting an optimal social structure for the bearing and raising of children.

[¶ 147] In considering whether such a rational basis exists, we defer to the decision-making process of the Legislature, and must make deferential assumptions about the information that it might consider and on which it may rely. See Shell Oil Co. v. Revere, 383 Mass. 682, 688 (1981) (court considers "evidence which may have been available to the Legislature" [emphasis added]); Slome v. Chief of Police of Fitchburg, 304 Mass. 187, 189 (1939) ("any rational basis of fact that can be reasonably conceived" may support legislative finding); Mutual Loan Co. v. Martell, 200 Mass. 482, 487 (1909), aff'd, 222 U.S. 225 (1911) ("Legislature may be supposed to have known" relevant facts).

[¶ 148] We must assume that the Legislature (1) might conclude that the institution of civil marriage has successfully and continually provided this structure over several centuries; (2) might consider and credit studies that document negative consequences that too often follow children either born outside of marriage or raised in households lacking either a father or a mother figure, and scholarly commentary contending that children and families develop best when mothers and fathers are partners in their parenting; and (3) would be familiar with many recent studies that variously: support the proposition that children raised in intact families headed by same-sex couples fare as well on many measures as children raised in similar families headed by opposite-sex couples; support the proposition that children of same-sex couples fare worse on some measures; or reveal notable differences between the two groups of children that warrant further study.

[¶ 149] We must also assume that the Legislature would be aware of the critiques of the methodologies used in virtually all of the comparative studies of children raised in these different environments, cautioning that the sampling populations are not representative, that the observation periods are too limited in time, that the empirical data are unreliable, and that the hypotheses are too infused with political or agenda driven bias. See, e.g., R. Lerner & A.K. Nagai, No Basis: What the Studies Don't Tell Us About Same-Sex Parenting, Marriage Law Project (Jan.2001) (criticizing forty-nine studies on same-sex parenting -- at least twenty-six of which were cited by amici in this case--as suffering from flaws in formulation of hypotheses, use of experimental controls, use of measurements, sampling and statistical testing, and finding false negatives); Stacey, (How) Does the Sexual Orientation of Parents Matter, 66 Am. Soc. Rev. 159, 159-166 (2001) (highlighting problems with sampling pools, lack of longitudinal studies, and political hypotheses).

[¶ 150] Taking all of this available information into account, the Legislature could rationally conclude that a family environment with married opposite-sex parents remains the optimal social structure in which to bear children, and that the raising of children by same-sex couples, who by definition cannot be the two sole biological parents of a child and cannot provide children with a parental authority figure of each gender, presents an alternative structure for child rearing that has not yet proved itself beyond reasonable scientific dispute to be as optimal as the biologically based marriage norm. See Baker v. State, 170 Vt. 194, 222 (1999) ("conceivable that the Legislature could conclude that opposite-sex partners offer advantages in th[e] area [of child rearing], although ... experts disagree and the answer is decidedly uncertain"). Cf. Marcoux v. Attorney Gen., 375 Mass. 63, 65 (1978). Working from the assumption that a recognition of same-sex marriages will increase the number of children experiencing this alternative, the Legislature could conceivably conclude that declining to recognize same-sex marriages remains prudent until empirical questions about its impact on the upbringing of children are resolved.

[¶ 151] The fact that the Commonwealth currently allows same-sex couples to adopt, see Adoption of Tammy, 416 Mass. 205 (1993), does not affect the rationality of this conclusion. The eligibility of a child for adoption presupposes that at least one of the child's biological parents is unable or unwilling, for some reason, to participate in raising the child. In that sense, society has "lost" the optimal setting in which to raise that child--it is simply not available. In these circumstances, the principal and overriding consideration is the "best interests of the child," considering his or her unique circumstances and the options that are available for that child. The objective is an individualized determination of the best environment for a particular child, where the normative social structure--a home with both the child's biological father and mother--is not an option. That such a focused determination may lead to the approval of a same-sex couple's adoption of a child does not mean that it would be irrational for a legislator, in fashioning statutory laws that cannot make such individualized determinations, to conclude generally that being raised by a same-sex couple has not yet been shown to be the absolute equivalent of being raised by one's married biological parents.

[¶ 152] That the State does not preclude different types of families from raising children does not mean that it must view them all as equally optimal and equally deserving of State endorsement and support. For example, single persons are allowed to adopt children, but the fact that the Legislature permits single-parent adoption does not mean that it has endorsed single parenthood as an optimal setting in which to raise children or views it as the equivalent of being raised by both of one's biological parents. The same holds true with respect to same-sex couples--the fact that they may adopt children means only that the Legislature has concluded that they may provide an acceptable setting in which to raise children who cannot be raised by both of their biological parents. The Legislature may rationally permit adoption by same-sex couples yet harbor reservations as to whether parenthood by same-sex couples should be affirmatively encouraged to the same extent as parenthood by the heterosexual couple whose union produced the child.

[¶ 153] In addition, the Legislature could conclude that redefining the institution of marriage to permit same-sex couples to marry would impair the State's interest in promoting and supporting heterosexual marriage as the social institution that it has determined best normalizes, stabilizes, and links the acts of procreation and child rearing. While the plaintiffs argue that they only want to take part in the same stabilizing institution, the Legislature conceivably could conclude that permitting their participation would have the unintended effect of undermining to some degree marriage's ability to serve its social purpose. See Commonwealth v. Stowell, 389 Mass. 171, 175 (1983) (given State's broad concern with institution of marriage, it has "legitimate interest in prohibiting conduct which may threaten that institution").

[¶ 154] As long as marriage is limited to opposite-sex couples who can at least theoretically procreate, society is able to communicate a consistent message to its citizens that marriage is a (normatively) necessary part of their procreative endeavor; that if they are to procreate, then society has endorsed the institution of marriage as the environment for it and for the subsequent rearing of their children; and that benefits are available explicitly to create a supportive and conducive atmosphere for those purposes. If society proceeds similarly to recognize marriages between same-sex couples who cannot procreate, it could be perceived as an abandonment of this claim, and might result in the mistaken view that civil marriage has little to do with procreation: just as the potential of procreation would not be necessary for a marriage to be valid, marriage would not be necessary for optimal procreation and child rearing to occur. In essence, the Legislature could conclude that the consequence of such a policy shift would be a diminution in society's ability to steer the acts of procreation and child rearing into their most optimal setting. Hall-Omar Baking Co. v. Commissioner of Labor & Indus., 344 Mass. 695, 700 (1962) ("Legislative classification is valid if it is rational and bears some relationship to the object intended to be accomplished" [emphasis added]).

[¶ 155] The court recognizes this concern, but brushes it aside with the assumption that permitting same-sex couples to marry "will not diminish the validity or dignity of opposite-sex marriage" and that "we have no doubt that marriage will continue to be a vibrant and revered institution." Whether the court is correct in its assumption is irrelevant. What is relevant is that such predicting is not the business of the courts. A rational Legislature, given the evidence, could conceivably come to a different conclusion, or could at least harbor rational concerns about possible unintended consequences of a dramatic redefinition of marriage.

[¶ 156] There is no question that many same-sex couples are capable of being good parents, and should be (and are) permitted to be so. The policy question that a legislator must resolve is a different one, and turns on an assessment of whether the marriage structure proposed by the plaintiffs will, over time, if endorsed and supported by the State, prove to be as stable and successful a model as the one that has formed a cornerstone of our society since colonial times, or prove to be less than optimal, and result in consequences, perhaps now unforeseen, adverse to the State's legitimate interest in promoting and supporting the best possible social structure in which children should be born and raised. Given the critical importance of civil marriage as an organizing and stabilizing institution of society, it is eminently rational for the Legislature to postpone making fundamental changes to it until such time as there is unanimous scientific evidence, or popular consensus, or both, that such changes can safely be made.

[¶ 157] There is no reason to believe that legislative processes are inadequate to effectuate legal changes in response to evolving evidence, social values, and views of fairness on the subject of same-sex relationships. Deliberate consideration of, and incremental responses to rapidly evolving scientific and social understanding is the norm of the political process--that it may seem painfully slow to those who are already persuaded by the arguments in favor of change is not a sufficient basis to conclude that the processes are constitutionally infirm. See, e.g., Massachusetts Fed'n of Teachers v. Board of Educ., 436 Mass. 763, 778 (2002); Mobil Oil v. Attorney Gen., 361 Mass. 401, 417 (1972) (Legislature may proceed piecemeal in addressing perceived injustices or problems). The advancement of the rights, privileges, and protections afforded to homosexual members of our community in the last three decades has been significant, and there is no reason to believe that that evolution will not continue. Changes of attitude in the civic, social, and professional communities have been even more profound. Thirty years ago, The Diagnostic and Statistical Manual, the seminal handbook of the American Psychiatric Association, still listed homosexuality as a mental disorder. Today, the Massachusetts Psychiatric Society, the American Psychoanalytic Association, and many other psychiatric, psychological, and social science organizations have joined in an amicus brief on behalf of the plaintiffs' cause. A body of experience and evidence has provided the basis for change, and that body continues to mount. The Legislature is the appropriate branch, both constitutionally and practically, to consider and respond to it. It is not enough that we as Justices might be personally of the view that we have learned enough to decide what is best. So long as the question is at all debatable, it must be the Legislature that decides. The marriage statute thus meets the requirements of the rational basis test. Accord Standhardt v. Superior Court, 77 P.3d 451 (Ariz.Ct.App.2003) (marriage statutes rationally related to State's legitimate interest in encouraging procreation and child rearing within marriage); Baker v. Nelson, 291 Minn. 310, 313 (1971) ( "equal protection clause of the Fourteenth Amendment, like the due process clause, is not offended by the state's classification of persons authorized to marry"); Singer v. Hara, 11 Wash.App. 247, 262-263 (1974) ("There can be no doubt that there exists a rational basis for the state to limit the definition of marriage to exclude same-sex relationships").

Conclusion.

[¶ 158] While "the Massachusetts Constitution protects matters of personal liberty against government intrusion at least as zealously, and often more so than does the Federal Constitution," this case is not about government intrusions into matters of personal liberty. It is not about the rights of same-sex couples to choose to live together, or to be intimate with each other, or to adopt and raise children together. It is about whether the State must endorse and support their choices by changing the institution of civil marriage to make its benefits, obligations, and responsibilities applicable to them. While the courageous efforts of many have resulted in increased dignity, rights, and respect for gay and lesbian members of our community, the issue presented here is a profound one, deeply rooted in social policy, that must, for now, be the subject of legislative not judicial action.

a new day...

2009-11-30T11:08:00.000-08:00

its time for me to face a new day in my life. I really dont know how to put it. Maybe, I'm just blabbering non-sense right now. I really miss my girlfriend, that is If I can still call her mine,. Partially, I am at fault, I was not able to give her what she deserves.. Its not because I dont love her but because, law school really occupies a large part of my time...

I really love her so much. However, the strain and pressure of law school is just too difficult for me. Sometimes, her presence is this only thing that keeps me sane from that hellish pressure from law school.

However, I think she has reached her limit and could no longer live a life with me. She is the only person that I've poured my life into...the only person that I truly loved and cherish...the only one I will love...
I love her so much that typing right now hurts me like a thorn piercing through my heart... I want her so bad yet, I know I dont deserve her right now.. Perhaps, if I can become the better man that she wants me to be, maybe she would one day accept me once again..

Fate/Stay Night Episode 1: Advent of the Magi

2009-11-26T20:33:00.000-08:00

The episode opens with the last part of the last Holy Grail War with two servants fighting. After that, an explosion was shown and a child standing after the fire was shown. After that, it brings the story back to the present in the home of Rin Tohsaka, a magician who summons forth hero to aid her in the Holy Grail War. The defective summoning brings forth Archer, who due to the defective summoning didn't have any memories of his life. After this, the scene shifts to the backyard of Emiya Shiro. the protagonist of the anime.

Emiya Shiro is a typical student and a part time mechanic at that. However, he has a secret. He is a magician. He is the son of Kirutsugu, well actually he is the adopted child of Kirutsugu, who is a magician from the recent Holy Grail War. However, Shirou is only familiar with the spell of reinforcement.

Shirou and his friends are alarmed that a series of crimes had been happening in the city where they live, Fuyuki City. Then one night while he was in school, he chance upon a person in blue who turned out be a hero, Lancer. Lancer attacks him and he was stabbed because he could not afford to be seen. Rin Tohsaka arrives at the scene and revived him with the help of her jewels. Archer and Lancer then had a short battle. Afterwards, Lancer catches up with Shirou and tries to kill him. However, a mysterious light covers him and before him a woman in full armor stands before him calling him master

Question on God

2009-11-25T18:48:00.000-08:00

We met our Consti 2 Professor yesterday. Prior to the meeting, we were required to read several readings which he published. I was shocked and amazed at the same time of his radical ideas. Upon meeting him, it was reveeled that he was a post-theist that is he once believed in a God. His ideas are so magnificent that I can't help but feel admiration for his intellect. I believe that this class would be one of the most interesting classI will ever had and I would be able to gain novel ideas for my professor. :)

Fate/Stay Night

2009-11-25T17:53:00.000-08:00

Fate/Stay Night is an anime based from a visual novel. It is about a battle for the Holy grail which would grant the one possesses it any of their deepest desires. The Holy Grail had been happening in each century between the top magicians of the world who summon servants of heroes of past to aid them in the quest for the Holy Grail. The protagonist of the Fate/Stay Night is Shiro Emiya, a boy who was adopted by Kirustugu Emiya when fire or holocaust blazed forth in Fuyuki City. He always wanted to be a hero of justice. He knew his foster parent was a magician but he was only able to learn reinforcement or the spell to make materials stronger and more durable. That is why, he had a part time job as a mechanic. He never knew that he would get mixed up in the battle of the servants and magicians until he meets a servant who stabbed and killed him supposedly.

From this day forth, i would be making reviews and summeries of each episode Fate/Stay Night, one of the bes animes I have ever seen. I hope, these summaries would get you to have a better appreciation of the anime, Fate/Stay Night. :)

Eyeshield 21

2009-11-24T17:53:00.000-08:00

I am recently hooked to an anime entitled Eyeshield 21. It is about a boy Kobayaka Sena, who has been bullied since he was a child. Upon entering middle school, he is introduced to the game of American football. He meets a whole lot of friends and because of his speed he became the famous hero of the Devilbats, Eyeshield 21.

He is called Eyeshield 21 because of the helmet he wears and huis number 21. He is not known by his true identity as Sena. Eyeshield 21 is one of the most hilarious animes I have ever seen. Of all the anime I have seen. Eyeshield 21, tickles your funny bones until it turns your stomachs inside out. It would also introudce you to the game of American football and make you get hooked into it

I am currently watching up to the Episode 31 of Eyeshield 21

Episode 1 of Eyesheiled 21 would easily get you hooked into the anime. one of the best animes I've seen. Eyeshield 21. :)

The Missing Book From Hell!

2009-11-23T18:12:00.000-08:00

I borrowed a book from the school library to have it photocopied in Pampanga. Much to my demise, uupon arriving in Manila, I discovered the book was nbot with me. i asked my parents to look for it in the house, but it was not there. It was not in my Gf's house as well. My God. I was Panicking because I could not afford to lose it considering that it is school property.

I was not able to study properly for a whole day because of my anxiety.

Thank god that the next day, my girlfriend informed me that she found the book in the bag of her laptop. thank God. now I can focus on studying once again! :)

Legal Profession Today

2009-11-22T18:05:00.000-08:00

whoo. legal prof is the most scary subject. oh my. the problem is I played volleyball a day before and my body is aching all over. I wqas only able to read 3 of the assigned cases. It was so scary., The first one to be called in class is my seatmate,. MY God. Thank god I was not called. I endurerd two hours of praying that I wont be called and Thank God I was not. I still feel sleepy but I still have to read a lot more the subjects tomorrow., Hopefully i wont be hassled as I was today.

A case to be read for Obli Con

2009-11-21T00:24:00.001-08:00

G.R. No. L-49852 October 19, 1989
EMILIA TENGCO, petitioner, vs.COURT OF APPEALS and BENJAMIN CIFRA JR., respondents.
PADILLA, J.:
Review on certiorari of the decision* rendered by the Court of Appeals in CA-G.R. NO. SP-08182, entitled: "Emilia Tengco, petitioner, versus Court of First Instance of Rizal, etc., et al, respondents," which dismissed herein petitioner's "Appeal by Way of Certiorari" from the judgment of the Court of First Instance of Rizal in Civil Case No. C-6625 which affirmed the decision of the Municipal Court of Navotas, Metro Manila, in Civil Case No. 2092, entitled: "Benjamin Cifra, plaintiff, versus Emilia Tengco defendant," ordering the herein petitioner (as defendant) to vacate the premises at No. 164 Int Gov. Pascual St., Navotas, Metro Manila, and to pay the herein private respondent (as plaintiff) the arrears in rentals and attorney's fees; and the Resolution denying the herein petitioner's motion for reconsideration of the said Court of Appeals decision.
The record of the case shows that on 16 September 1976, the herein private respondent, Benjamin Cifra, Jr., claiming to be the owner of the premises at No. 164 Int Gov. Pascual St., Navotas, Metro Manila, which he had leased to the herein petitioner, Emilia Tengco, filed an action for unlawful detainer with the Municipal Court of Navotas, Metro Manila, docketed therein as Civil Case No. 2092, to evict the petitioner, Emilia Tengco, from the said premises for her alleged failure to comply with the terms and conditions of the lease contract by failing and refusing to pay the stipulated rentals despite repeated demands. After trial judgment was rendered against the petitioner. The decretal portion of the decision reads, as follows:
WHEREFORE, Judgment is hereby rendered in favor of the plaintiff and against the defendant, ordering the defendant and any and all persons claiming rights under her to vacate the premises occupied by her at No. 164 Int Gov. Pascual Street, this town and to surrender possession thereof to the plaintiff, condemning the defendant to pay the plaintiff the amount of THREE HUNDRED SEVENTY SIX (P376.00) PESOS, as rentals in arrears and the sum of TWELVE PESOS (P12.00), a month from October, 1976 until the premises is fully vacated. To pay the plaintiff the sum of TWO HUNDRED (P200.00) PESOS as and for attorney's fees and costs of suit.
From this judgment, the herein petitioner appealed to the Court of First Instance of Rizal where the appeal was docketed as Civil Case No. C-6625. On 18 May 1978, the Court of First Instance of Rizal rendered judgment affirming the decision of the municipal court, the dispositive part of which reads as follows:
WHEREFORE, premises considered, judgment is hereby rendered affirming in toto the judgment of the lower court dated September 20, 1 977 without pronouncement as to costs.
Not satisfied, the herein petitioner filed with the respondent Court of Appeals an "Appeal by Way of Certiorari" which was docketed as CA-G.R. NO. SP-08182. On 29 August 1978, the respondent Court of Appeals promulgated a decision, with the following disposition:
WHEREFORE, finding that the Decision of the lower Court is supported by substantial evidence and that its conclusions are not clearly against the law and jurisprudence, the instant petition is hereby denied due course and is dismissed outright.
The petitioner filed a motion for reconsideration of the decision but her motion was denied on 16 January 1979.
Hence, the present recourse.
The petitioner contends that the respondent Court of Appeals erred in sustaining the decisions of the appellate and trial courts which are allegedly contrary to the evidence and applicable jurisprudence. The petitioner more particularly claims that (1) the private respondent Benjamin Cifra, Jr. is not the owner of the leased premises; (2) the lessor was guilty of mora accipiendi; (3) the petitioner's version of the facts is more credible than private respondent's; (4) laches had deprived the lessor of the right to eject her; and (5) the private respondent failed to establish a cause of action against the petitioner.
We find no merit in the petition. The reasons advanced by the petitioner to support her petition are the same reasons given by her to the Court of Appeals in support of her "Appeal by Way of Certiorari" and we find no ground to adopt a different course from that of the respondent appellate court. In disposing of the petitioner's contentions, the Court of Appeals said:
Petitioner claims that private respondent had failed to establish his ownership of the lot in question for while the Certificate of Title presented by him refers to a parcel of land situated at Bo. Almacen, Navotas, the premises in question, on the other hand, is situated in Bo. Sipak Navotas; that it was not with private respondent that she entered into the lease agreement but with his mother; that her failure to pay the rentals on the premises was due to the refusal of the collector to accept her tender of payment; and that laches had deprived private respondent of whatever right he had against her considering that the Complaint was filed only in September, 1976 whereas his cause of action arose sometime in February, 1974 when she defaulted in the payment of rentals.
We find this appeal which We consider as a Petition for Review, to be without merit.
It should be noted that petitioner admits that she is a lessee on the premises in question and that she had been in default in the payment of the rentals thereon since February, 1974 allegedly because of the refusal of the collector to accept her tender of payment. However, she claims that the lease agreement was not with private respondent, but with his mother. The question as to who is the real lessor of the premises is one of fact and the findings of the lower court that it was private respondent is entitled to the highest respect by appellate Courts barring any material evidence to the contrary. Neither can petitioner question private respondent's claim of ownership of the leased premises. The tenant is not permitted to deny the title of his landlord at the time of the commencement of the relation of landlord and tenant between them.
Petitioner's excuse for her non-payment of the rentals on the premises deserves scant consideration. If, indeed, her offer to settle her obligation was refused by private respondent, she should have resorted to the judicial deposit of the amount due in order to release her from responsibility.
Petitioner's claim that private respondent's cause of' action is barred by laches is untenable. While it is true that petitioner's arrearages date back to February, 1974, however, a tenant's mere failure to pay rent does not ipso facto make unlawful his possession of the leased premises. As held by respondent Court of First Instance, it is the failure to pay rents after a demand therefor is made that entitles the lessor to bring an action of Unlawful Detainer. Moreover, the lessor has the privilege to waive his right to bring an action against his tenant and give the latter credit for the payment of the rents and allow him to continue indefinitely in the possession of the premises. During such period, the tenant would not be in illegal possession of the premises and the landlord can not maintain an action until after he has taken steps to convert the legal possession into an illegal possession. Thus, in the case at bar, the demand on petitioner to vacate the premises for failure to pay the rentals thereon was made by private respondent only on August 23, 1976 and the Complaint against petitioner was filed on September 16,1976.
Consequently, petitioner's non-payment of the rentals on the premises, notwithstanding demand made by private respondent, and her failure to avail of the remedy provided for in Article 1256 of the Civil Code, entitles private respondent to eject her from the premises.
Indeed, the question of whether or not private respondent is the owner of the leased premises is one of fact which is within the cognizance of the trial court whose findings thereon will not be disturbed on appeal unless there is a showing that the trial court had overlooked, misunderstood, or misapplied some fact or circumstance of weight and substance that would have affected the result of the case. And since the petitioner has not presented sufficient proof that the leased premises is not the same lot registered in the name of the private respondent, the findings of the lower courts on the fact of ownership of the leased premises will not be disturbed.
The maps attached by the petitioner to her Reply to the Comment of the private respondent which would tend to show that Almacen and Sipac are two (2) different barangays or sitios, cannot offset the findings of the trial court for lack of proper Identifications; in fact, these maps do not even indicate where the property at No. 164 Int Gov. Pascual Street is located.
The petitioner's contention that the provisions of Section 1, Commonwealth Act No. 53, should be applied in this case in determining the credibility of witnesses, is untenable. The said law provides:
Sec. 1. Where a covenant or contract made between the owner of land and a lessee or tenant on share thereof has not been reduced to writing or has not been set forth in a document written in a language known to the lessee or tenant, the testimony of such lessee or tenant shall be accepted as prima facie evidence on the terms of a covenant or contract.
As can be seen, the cited law can be invoked only when there is a dispute between the owner of the land and the lessee or tenant on share tenancy as to the terms of an unwritten contract or where the contract is written in a language not known to the lessee or tenant. In the instant case, there is no dispute as to the terms of the contract of lease. Hence, the cited law cannot be invoked to support the petitioner's claim that the private respondent is not the owner of the leased premises or that the petitioner's version of the facts of the case is more credible than that of the private respondent.
Besides, the petitioner's contention that the private respondent is not the owner of the leased premises is inconsistent with her claim that she had tendered payment of the rentals for the month of January 1976 to the private respondent. 1
There is also no merit in the petitioner's contention that the lessor is guilty of mora accipiendi. The circumstances surrounding the alleged refusal of the lessor (private respondent) to accept the proffered rentals, according to petitioner, are as follows:
Sometime in 1942, petitioner entered into a verbal lease agreement with Lutgarda Cifra over the premises in question which belonged to the latter. Aside from the amount of rentals, no other condition or term was agreed upon. The rentals were collected from her residence by the lessor's collector who went to her house to demand and collect payment from time to time, with no fixed frequency (Cf., t.s.n. July 28, 1977, pp. 2-6).
Sometime in 1974, the lessor's collector stopped going to the petitioner's residence to collect her rentals, as she had done in the past. The defendant-appellant waited for the collector to come but the latter never showed up again in his neighborhood. Since no demand for payment was made upon her, the petitioner decided to keep the money until the collector comes again to demand and collect payment.
Sometime in May, 1976, petitioner received a letter (Exh. 1) from Aurora C. Recto, sister of private respondent, informing the former that the latter, was the owner of the property in question, was offering the same for sale.
Sometime later, or in August 1977, petitioner received another letter, this time from the private respondent, demanding the surrender of the possession of the premises in question, also claiming to be the owner of the property.
Upon receipt of this letter, petitioner forthwith went to the residence of the collector, another sister of the private respondent to whom she had been paying her rentals, and there tendered payment but this was refused without any justification (t.s.n. July 26, 1 977, p. 7). 2
Under the circumstances, the refusal to accept the proffered rentals is not without justification. The ownership of the property had been transferred to the private respondent and the person to whom payment was offered had no authority to accept payment. It should be noted that the contract of lease between the petitioner and Lutgarda Cifra, the former owner of the land, was not in writing and, hence, unrecorded. The Court has held that a contract of lease executed by the vendor, unless recorded, ceases to have effect when the property is sold, in the absence of a contrary agreement. 3 The petitioner cannot claim ignorance of the transfer of ownerhip of the property because, by her own account, Aurora Recto and the private respondent, at various times, had informed her of their respective claims to ownership of the property occupied by the petitioner. The petitioner should have tendered payment of the rentals to the private respondent and if that was not possible, she should have consigned such rentals in court.
Finally, we find no merit in the petitioner's contention that the private respondent is guilty of laches. As the Court of Appeals had stated, the demand for the petitioner to vacate the premises and to pay arrears in rentals was made on 23 August 1976 and the complaint seeking her ejectment was filed a few days thereafter, or on 16 September 1976.
For reasons aforestated, the judgment of the Court of Appeals appears to be in accord with the evidence and the law.
WHEREFORE, the petition is hereby DENIED. Without pronouncement as to costs. This decision is immediately executory.
SO ORDERED.
Paras, Sarmiento and Regalado, JJ., concur.

Better Stidy habits

2009-11-18T19:00:00.000-08:00

For the first sem, my study habits were not that good, considering that, with my lsptop, I am bale to do all sorts of things aside from studying, like watching animes, movies, playing games, etc. However, at this time, I no longer have a laptop and thus I am limited to reading, sleeping, studying, eating and watching tv.

Last sem, I dont get to finish all the cases assigned, but right now I am able to do advanced readings. and thus I dont cram and makes it easer for me. :)

whoo...rant?

2009-11-17T20:48:00.001-08:00

whoo... my class has just finished. I was not able to read that much yesterday. but neverthe;ess, Im just glad that's over it/

whoo....advanced reading

2009-11-16T20:12:00.000-08:00

As I have previously posted, we were assigned a huge pile of cases for my subjects this 2nd sem to read for today. Much to my demise, upon going to school, I realized that i was not able to read the first four cases assigned for oblicon. I was able to do advanced reading in relation to future cases but i was not able to read for the first cases assigned. thank God I was not called.

I also feel sorry for my classmate who was able to recite suyperbly but because of a mixture in names was not given any grade for today.. ohg well