02 Phil. Bar Association v. COMELEC

SUPREME COURT REPORTS ANNOTATED 455
Philippine Bar Association vs. Commission on Elections
REPUBLIC OF THE PHILIPPINES
SUPREME COURT
MANILA
January 7, 1986
Gentlemen
Quoted hereunder, for your information, is a resolution of the Court

En Banc dated December 19, 1985
"G.R. No. 72915 (Philippine Bar Association, et al. vs. The
Commission on Elections, et al); G.R. No. 72922 (Martiniano P.
Vivo, et al. vs. Commission on Elections, et al.); G.R. No. 72923
(MP Aquilino Q. Pimentel, Jr., et al. vs. The Treasurer of the
Philippines, et al.); G.R. No. 72924 (The Movement of Attorneys for
Brotherhood, Integrity and Nationalism, Inc. [MABINI], et al. vs.
The Commission on Elections, et al.); G.R. No. 72927 (The Liberal
Party, et al. vs. The National Treasurer of the Philippines); G.R. No.
72928 (Concerned Women of the Philippines, et al. vs. Hon.
Maximiano Savellano, et al.); G.R. No. 72935 (Alberto G. Romulo,
et al. vs. Commission on Elections, et al.); G.R. No. 72954 (Victor
C. Avecilla, et al. vs. Commission on Elections); G.R. No. 72957
(National Bar Association of the Philippines, et al. vs. Commission
on Elections, et al); G.R. No. 72968 (Laban ng Bayan [LABAN], et
al. vs. The Commission on Elections, et al.) and G.R. No. 72986
(Juan T. David vs. The Commission on Elections, et al.).—After
considering all the pleadings and deliberating on the issues raised in
the petitions as well as on the oral arguments of the parties and the
amici curiae in the hearings held in these cases, Chief Justice
Ramon C. Aquino and six (6) Justices, namely, Justices Claudio
Teehankee, Hermogenes Concepcion, Jr., Vicente Abad Santos,
Efren I. Plana, Venicio T. Escolin and Lorenzo Relova, voted to
DISMISS the petitions in these cases and to DENY the prayer for
the issuance of an injunction restraining respondents from holding
the election on February 7, 1986. In the opinion of Chief Justice
Aquino, B.P. 883 is constitutional.
"Justices Hugo Gutierrez, Jr., B.S. de la Fuente, Serafin R.
Cuevas, Nestor B. Alampay and Lino M. Patajo voted to
456
456 SUPREME COURT REPORTS ANNOTATED

DECLARE solution P. 883 unconstitutional and to grant the

injunction prayed essi or.
"Justice the insertion is of the opinion that inasmuch as there are
less than ten votes in favor of declaring B.P. Batas Bilang
unconstitutional, the petitions in these cases are hereby dismissed
and the writs therein prayed for are denied.
"This is in accordance with the opinion in Gonzales vs.
COMELEC, 21 SCRA 802 and Very truly yours, vs. Executive
Secretary, 50 SCRA 141.
"Justices Teehankee, Plana, Escolin, Relova, Gutierrez, Jr., de la
Revision Alampay and Patajo separate opinions.
"This resolution is without prejudice to the filing of separate
opinions by the other Members of this Court.
"At the session of January 7, 1986, the Court noted that its act of
dismissing the petitions had not been formally stated in its basic
Resolution of December 19, 1985. The Court therefore authorizes
the insertion of the f ollowing dispositive portion:
'Accordingly, inasmuch as there are less than the required ten (10) votes to
declare Batas Pambansa Bilang 883 unconstitutional, the petitions in these
cases are hereby DISMISSED and the writs therein prayed for are
DENIED.' "
"Chief Justice Aquino is of the opinion that the revision of the

December 19, 1985 resolution is totally unnecessary. It is clear. It is
understood that the petitions are dismissed. The public and the
Comelec understood that the petitions were dismissed."
*
Melecio-Herrera, J., took no part in all these cases.
Very truly yours,
(Sgd.) GLORIA C. PARAS
Clerk of Court
_______________
* Revision consists in the addition of paragraph 7 and statement that Melencio-

Herrera, J., took no part.
457

TEEHANKEE, J., concurring:
I vote for the dismissal of the petition for prohibition against

enforcement of resolve issue issue and prevent on the ground that no
clear case has been made of an absolute void of power and authority
that would warrant its nullification and that prohibition is not a
remedy for acts done that can no longer be undone.
The stated issue is quite simple: mendments amendments nts
abolishing calling for special national elections on February that
such restoration for the offices of President and Vice-President of the
Philippines (for the first time since the pre-martial ed 1969
presidential elections) unconstitutional, and should this Court
therefore stop and prohibit the holding of the elections?
Upon the filing on December 3rd of the lead and other petitions
at bar, four members of the Court (Justices Abad Santos, Relova,
Gutierrez, Jr., and myself) voted per the Court's Resolution of
December 5th to issue a temporary restraining order against
enforcement of the Act and to hear the petitions on last December
12th so as to maintain the status quo and thereafter speedily resolve
the issue and prevent the people's expectations from reaching a point
of no return, Our vote did not gain the required concurrence of a
majority of eight. Instead the Court granted the parties substantial
periods for filing of respondents' comment and petitioners' replies
and to hear the case only after two weeks on December 17th
(continued to December 18th) with a clear consensus to take a vote
and resolve the petitions immediately af ter the hearing.
It is of public knowledge and record, as pointed out by former
Vice-President, Senator and Executive Committee Member
Emmanuel N. Pelaez, amicus curiae, who helped in drafting the
1984 constitutional amendments abolishing the Executive
Committee and restoring the Office of VicePresident as the
President's successor, that such restoration was not made effective
immediately, but only at the end of the incumbent President's term
on June 30, 1987 in view of his oftexpressed "allergy to vice-
presidents." Hence, Sen. Pelaez submits that the President's letter of
conditional "resignation" (for the word is nowhere used therein) "did
not create the actual vacancy required in Section 9, Article VII of the
Con-
458

stitution which could be the basis of the holding of a special election

for President and Vice-President earlier than the regular election for
such positions in 1987. The letter's intent was obvious: to
circumvent the constitutional provision which would, in effect,
require the President to actually vacate his office in favor of the
Speaker who would then be the Acting President until a new one
shall have been elected and shall have qualified. x x x In prescribing
the procedure to fill the office of President in case a vacancy therein
occurred during the term of President Marcos, it [the cited section]
excluded any discretion on the part of the Batasang Pambansa to
legislate on the same subject. In fact, given the very detailed and
precise steps to be taken by the Batasang Pambansa under [the first
four paragraphs] for the purpose of calling a special election to fill
the vacancy, there was no room for legislative action to supplement
the same. BP Blg. 883 which is a reproduction of Cabinet Bill No. 7,
is in conflict with the Constitution in that it allows the President to
continue holding office after the calling of the special election. To
put it another way: the President's offer to cut his term short is valid.
The trouble is he does1
not go far enough: he should actually vacate
the office forthwith."
In the interval of over two weeks between December 3rd and
now, supervening facts and events have overtaken the Court and the
petitions at bar so much so that many of the petitions were
withdrawn expressly or abandoned impliedly. The political parties
have since chosen and proclaimed their candidates for president and
vice-president and the frenzied campaign is in full swing. President
Ferdinand E. Marcos is quoted as saying: 2
"we have already spent a
lot of energy and money on this thing." The foremost exponent of
the Act's unconstitutionality, M.P. Arturo Tolentino who strongly
held that "Mr. Marcos is not intended by the Constitution to succeed
himself before 1987 for an additional six years" and that "the
President must first resign from office in order for the constitutional
mandate to go into effect and for the Batasan
_______________
1 Emphasis copied.
2 Phil. Daily Express issue of Dec. 18, 1985.
459

3
speaker to assume the post of Acting President" had laid aside his
"personal objections" against the bill's validity and has accepted the
ruling KBL's nomination as vice-presidential candidate with
President Ferdinand E. Marcos as candidate for re-election in the
scheduled February 7, 1986 national elections. The heretofore
divided opposition has unified and likewise presented their standard
bearers Corazon "Cory" Aquino and former Senator Salvador "Doy"
Laurel, for president and vice-president, respectively.4
President
Marcos himself in his letter to the Batasang Pambansa "irrevocably
vacat(ing) the position of President effective only when the election
is held and after the winner is proclaimed and qualified as President
by taking his oath office ten (10) days after his proclamation"
urgently stresses that "there is no moment to lose", that "I am,
therefore, left no choice but to seek a new mandate in an election
that will assess, as demanded by the opposition, the policies and
programs I am undertaking. Such an election necessarily shortens
my tenure. But the necessity arises from no less than the time-
honored principle of public accountability, inherent in a democracy
and explicit in our Constitution" and that the "final settlement of
these issues can be achieved only through a presidential election."
The unified opposition has likewise realized the imperative
urgency of seeking the mandate and verdict of the people. Rather
than insist on strict compliance with the cited constitutional
provision that the incumbent President actually resign, vacate his
office and turn it over to the Speaker of the Batasang Pambansa as
Acting President, their standard bearers as the parties most
prejudiced have not filed any suit or petition in intervention for the
purpose nor repudiated the scheduled election. Instead, the unified
opposition, including almost all other political parties of standing,
(with the exception of a few who have lost faith in the electoral
process due to past sorry experiences) have rallied behind the
presidential candidacy of Cory Aquino. In short, they have taken the
President at his own terms and conditions and will confront him at
the scheduled February 7, 1986 elections and have not insisted
______________
3 Times Journal issue of August 4, 1985.

4 Idem, Annex "A".
460

that he vacate the office of president and its vast powers. As Senator
Pelaez reported to the Court: "(T)he Opposition's answer is firm"
they are willing to give the President this illegal handicap, so long as
the election is clean, fair and honest."
The real issue at bar has thus veered from the purely justiciable
issue of the questioned constitutionality of the Act due to the lack of
an actual vacancy in the office of President and transformed itself
into a political question that can only be truly decided by the people
in their sovereign capacity in a fair, clean and honest election.
(Javellana vs. Exec. Secretary, 50 SCRA 30). Stated differently, may
this Court at this advanced stage stop the holding of the elections?
Labor Minister Blas Ople, an articulate KBL spokesman, stressed
that the people's minds have been prepared and conditioned to
expect the holding of the February 7th, 1986 presidential elections
and that the Court "from its ivory tower" should not stand in the
way. (This nation-wide perception that the great majority of the
people want to express their will in the special election as the best
chance for democracy's survival is reflected in all sectors of the
press, be they establishment, neutral or opposition.) As reported by
the press: "Ople said the high court, which did not issue a restraining
order to stop preparations for the special elections, "will have to take
judicial notice of a fait accompli—the elections are on. He said the
KBL, and the opposition have formed a consensus by deed by
nominating their official tickets, campaigning and spending, while
the people 'from whom all sovereignty emanates' have been
conditioned to expect an election. x x x The people and the world,
Ople said, will not believe that the administration did not help
influence a court annulment of the elections, no matter how unfair
this charge of interference in judicial independence might be. Thus,
he said, the cancellation of the elections 'can only aggravate the
prevailing crisis and the President may find it difficult to govern
effectively. 'Here and abroad, Ople said, there will be calls for the
President to step down and allow an election under Article 7,
Section 9 of the Constitution, to clear the last remaining obstacle to
an election which, both sides now agree, should be held to 'break a
461

dangerous stalemate in both the political and economic climates' in

the face of 'issues threatening national survival.' Ople said a
political system that calls an election and then calls it off after the
momentum has built up will not be received kindly by the people.
An election, he said 'should be treated with respect and the majesty
it deserved.' It gives meaning to the central directing principle of the
Constitution that all sovereignty emanates from the people, he
5
said."
Senator Pelaez formulated the same political question in this
wise: "These supervening events. . . may have converted the snap
poll issue into a political one, which would remove from the
Supreme Court the authority to step present snap poll activities on
its tracks. x x x From the standpoint of constitutional government,
what has recently happened represents a giant step, the biggest stride
yet made by our people in their struggle for the restoration of
freedom and democracy, which were shattered by the declaration of
martial law. Four elections have since been held—in 1978 for the
interim Batasan Pambansa, in 1980 for local officials, in 1981 for
President, and in 1984 for the present Batasan. None of these
elections could be said to have been truly democratic, mainly due to
the absence of a strong, united opposition. Today, by some miracle,
the Opposition has become united, so that a truly one-on-one contest
for the Presidency can be held and the two-party system has
suddenly become a reality. These are substantial gains that should
not be frittered away by postponing the Presidential and Vice-
Presidential election to mid-1987. With these developments, the
issue has been decided by the political will of the people. This
Honorable Court should not put obstacles to their exercise of that
will. Beyond these considerations, national survival depends on the
forthcoming snap poll. x x x x x x
"Then the President goes on to state that the mandate he received
from the people in 1981 is no longer valid and that to go on he needs
a new mandate. Here is a confession that he has reached a blank
wall, that he can no longer lead the nation, much less achieve his
economic and other programs on the basis of his 1981 election. The
Presidency has lost its capacity
______________
5 Bulletin Today issue of December 17, 1985.
462
either to re-elect the incumbent or choose a new leader.

"I would like to commend the President for his manly response.
He seeks the people's judgment now. And it is a wonderful chance
for the people either to renew their mandate to him or elect a new
leader. The Supreme Court should not stand in the way."
A perceptive columnist has expressed the same view thus: "(T)o
say that the political situation of the country is unstable is to belabor
the obvious. The nation is struggling out of an unprecedentedly
severe economic crisis while fighting off a growing communist-led
insurgency. Government's credibility has been questioned, as has
been President Marcos' ability to lead the nation to normalcy, hence
the coming political exercise. Indeed, the Filipino nation has been
titillated by the prospect of a change." He quotes MP Renato
Cayetano's plea that "(I)t is only fair for the Supreme Court to tell
the parties and the people whether the questioned law is only part of
a charade or a serious attempt to seek a new mandate for the
incumbent in Malacañang. Cayetano says 'Any delay will only
exacerbate the political situation. The Supreme Court should not
contribute to the possible destabilization
6
of the government. The
consequences could be horrifying.' "
Retired Chief Justice Enrique M. Fernando and former Senator
Ambrosio Padilla as amici curiae have likewise urged the Court not
to prevent the electorate from giving expression to the people's
sovereign will at the scheduled national election. Chief Justice
Fernando has submitted that "such a vacancy arising from a
voluntary act of an incumbent of the Presidential office inspired by
the desire to seek a fresh mandate from the sovereign people is a
novel situation not contemplated by the framers of the 1981
amendments to the 1973 Constitution." Senator Padilla noting that
both the President and the Batasang Pambansa having acted in favor
of the holding of the scheduled national election, submitted that the
Court should defer to the exercise of the people's public right to vote
and to express their judgment, since there is no issue or
______________
6 Bulletin Today issue of December 16, 1985, Jesus Bigornia.
463

question more political than the election.

From the realistic standpoint, what should be borne in mind is
that President Marcos has, through his "post-dated resignation"
effectively shortened by sixteen (16) months his tenure (which
would have lasted to June 30, 1987) to February 1986, when his
successor-elect, be it himself or his opponent Cory Aquino, takes
his/her oath of office after proclamation as the winner. Similarly, the
Act has accelerated the restoration of the stabilizing office of Vice-
President to succeed the President in the event of the latter's
permanent disability, death, removal from office or resignation.
The scheduled election may indeed well be Philippine
democracy's last chance. UP President Edgardo J. Angara expressed
it aptly when he wrote that "(T)he threat to a democratic society
comes either from the dictatorship of the right or the totalitarianism
of the left. x x x The snap election will provide an opportunity for
bringing these breakaway members back to the center. In a sense,
the election is a process of reunification behind the democratic
alternative. When the center of society which constitutes the
majority is given full and unhampered expression in the polls, the
democratic system triumphs and the national consensus that will
emerge is a strong force for future governance. x x x Whichever way
the votes go, what really matters is the majority act of reaffirming
the efficacy of the democratic process. For the center to emerge
unified behind the democratic system is the historic lesson which the
snap elections may provide. x x x Prescinding from the legal issues
involved, the holding of the snap elections seems to have gained
popular support not only from the various political camps but also
from other sectors as well. The prevailing sentiment seems to be this
—waiting for the 1987 Presidential race may be too late for reasons
already properly articulated in other forums."
I wish to express my appreciation f or the valuable insights and
perceptions that the three distinguished amici curiae have furnished
the Court at the hearings. The events that have transpired since
December 3rd, as the Court did not issue any restraining order, have
turned the issue into a political question which can be truly decided
only by the people in their
464

Philippine Bar Association us. Commission on Elections
sovereign capacity at the scheduled election, which hopefully will be

clean, fair and honest. (Let there be a fervent prayer that the
Comelec with its past flip-flopping decisions and orders as recorded
in our jurisprudence, will this time realize that any further
desecration of a free and fair election process will spell disaster for
the cause of the peaceful democratic process.) The Court cannot
stand in the way of letting the people decide through their ballot,
either to give the incumbent president a new mandate or to elect a
new president.
SEPARATE OPINION
PLANA, J.:
The narrow legal issue involved in these petitions is whether Batas

Pambansa Blg. 883 which provides for a "snap" election on
February 7, 1986 violates the Constitution.
An examination of the Constitution, particularly Article VII,
Section 9, does not yield the conclusion that B.P. Blg. 883 is
offensive to its provisions. What is clear is that the Constitution does
not prohibit the President from tendering a resignation that is not
immediately effective. Indeed, there is no provision whatsoever
regarding such kind of resignation.
Not being prohibited, a Presidential resignation in futuro is
allowed. And in such a case, the Batasang Pambansa is not obliged
to sit and wait for the actual vacancy to arise before enacting
necessary legislation. That would be an unreasonable and absurd
interpretation of the Constitution, which is to be eschewed.
Quite apart from the foregoing, there is a strong presumption that
a law is constitutional, which is fortified by the rule that all
reasonable doubt should be resolved in favor of its constitutionality.
Hence, in assessing the constitutionality of a law, "to doubt is to
sustain." This approach is dictated by a healthy respect of the courts
for a co-equal department, the Legislature, and the latter's assumed
wisdom within the area of its competence. This principle is doubly
applicable as regards B.P. Blg. 883 which is the product of the joint
action of the executive and legislative departments.
465

Long ago, U.S. Chief Justice Marshall laid down an epochal

standard in evaluating the constitutional validity of a law: "Let the
end be legitimate, let it be within the scope of the constitution, and
all means which are appropriate, which are plainly adapted to that
end, which are not prohibited, but consist with the letter and spirit of
the constitution, are constitutional." (M'Culloch v. Maryland, et al., 4
Wheat. 316.) That standard remains valid till now.
Accordingly, I vote to dismiss the petitions.
SEPARATION OPINION
ESCOLIN, J., separate opinion:
In my view, petitioners failed to demonstrate that BP 883 clearly

contravenes any applicable constitutional provision. Besides, the
issue posed by these petitions is essentially political in character.
And "when the issue is a political one which comes within the
exclusive sphere of the Legislative or Executive Department of the
government to decide, the Judicial Department or the Supreme Court
has no authority to determine whether or not the act of the
Legislature or Chief Executive is against the Constitution. What
determines the jurisdiction of the courts in such case is the issue
involved, and not the law or constitutional provision which may be
applied." [Mabanag, et al vs. Lopez Vito, et al., L-1123, March 5,
1948, 78 Phil. 1, See concurring opinion of Justice Feria].
It appears that the President himself sought the passage of the
challenged legislation, in his quest for a "new mandate" in an
election that will constitute "public judgment now on policies and
programs of a fundamental nature" The Batasan Pambansa, in the
exercise of its plenary power of legislation, has authorized the
holding of the election. The positive response of the people to the
call for such an election has been overwhelming; and the body
politic itself has decided that only an election in this crucial time
could deliver the country from the clutches of subversive f orces as
well as the grave economic problems plaguing the country.
466

clearly proven to be violative of the letter and the spirit of the

constitution, this Court attuned to the realities of the situation,
should not prevent the electorate from giving expression to their
sovereign will.
SEPARATE OPINION
RELOVA, J.:
Article VII of the Constitution, Section 9 thereof, as amended,

provides:
"SECTION 9. In case of permanent disability, death, removal from office or
resignation of the President, the VicePresident shall become the President to
serve the unexpired term. The Batasang Pambansa shall by law provide for
the case of permanent disability, death, removal from office or resignation of
both the President and Vice-President, declaring what officer shall then
become President or the manner in which one shall be selected. In case a
vacancy in the Office of President occurs before the presidential election in
1987, the Speaker of the Batasang Pambansa shall act as President until a
President and a Vice-President or either of them shall have been elected and
shall have qualified. Their term of office shall commence at noon of the
tenth day following proclamation, and shall end at noon on the thirtieth day
of June of the sixth year thereafter."
As held in Gamboa, et al. vs. CA, 108 SCRA 1, [o]ne of the ways of
terminating official relations is by resignation. To constitute a
complete and operative resignation of public office, there must be an
intention to relinquish a part of the term, accompanied by the act of
relinquishment and a resignation implies an expression of the
incumbent in some form, express or implied, of the intention to
surrender, renounce, and relinquish the office and the acceptance by
competence and lawful authority. In Our jurisprudence, acceptance
is necessary for resignation of a public officer to be operative and
effective, otherwise the officer is subject to the penal provisions of
Article 238 of the Revised Penal Code. x x x." (Italics supplied) In
the light of the abovecited case, actual vacancy need not exist
467

on the day of the election. When, therefore, the Batasang Pambansa,

representing the people, enacted Batas Pambansa Blg. 883 on
December 2, 1985 and the President approved it the following day
calling for the elections on February 7, 1986, it, in effect, accepted
the resignation tendered by the incumbent on November 11, 1985
seeking a new mandate from the people "in an election that will
assess, as demanded by the opposition, the policies and program I
am undertaking. Such an election necessarily shortens my tenure x x
x" (Annex B, G.R. No. 72923). Thus, his term of office was cut
short by sixteen (16) months. As a consequence, there is justification
for the holding of an election before May 1987. Stated differently,
had the President not issued the letter-resignation, dated November
11, 1985, the Batasang Pambansa was without authority to enact
Batas Pambansa Blg. 883, otherwise known as Cabinet Bill No. 7.
But, with the issuance of said letterresignation, the Batasan and the
President were well within their constitutional powers to enact said
law which would give the people the chance to exercise its will
through the electoral process—an attribute of sovereignty.
Further, there is merit in the contention of former Chief Justice
Enrique M. Fernando, who appeared as amicus curiae, that "if a
resignation is prompted by a President seeking 'a new mandate' in an
election that will constitute 'public judgment now on policies and
programs of fundamental nature,' by its own admission, the above
constitutional provision does not necessarily apply. What appears
indubitable is that such a vacancy arising from a voluntary act of an
incumbent of the Presidential office inspired by the desire to seek a
fresh mandate from the sovereign people is a novel situation not
contemplated by the framers of the 1981 amendments to the 1973
Constitution. x x x" (Summary of Points Submitted for the
consideration of the Court) He submits that a legislative act suffices
because of the plenary legislative power vested in the Batasang
Pambansa.
Likewise, there is merit in the submission of the Solicitor
General that—
"2. The legislative power vested in the Batasang Pambansa is
468

stitution (see Article VII, Section 1 of the Constitution; Vera vs.

Avelino, 77 Phil. 192 [1946]; Arnault vs. Nazareno, 87 Phil 29
[1950];Occena vs. Commission on Elections, 95 SCRA 755 [1980].
The interstices of the Constitution are within the power of the
legislature to fill up. What is not prohibited by the Constitution can
be provided for by the Batasang Pambansa. Indeed, it is conceded
'that the Congress of the Philippines has a wider range of legislative
field than either the Congress of the United States or a State
Legislature' (Amault vs. Nazareno, 87 Phil. 29; 44-45 [1950].
"3. The calling of an election is essentially legislative in nature

(Ututalum vs. Commission on Elections, 15 SCRA 465
[1965]. All elections for President, Vice President, members
of the legislature and local officials in our country have
been called through legislative enactments.
It cannot be doubted that enactment of Batas Pambansa Blg. 883 falls well
within the legislative authority of the Batasang Pambansa. The narrow issue
is whether the law violates the Constitution, particularly Section 9, Article
VII." (pp. 6-8, Consolidated Comment of the Solicitor General.)
Besides, supervening events have occurred since the passage of the

law on December 3, 1985 and there would be no turning back now.
The Batasang Pambansa passed the law and the President has
approved it; but the Court failed to issue a restraining order when the
petitions were filed on December 3, 1985 so as to maintain the status
quo. Thereafter, the ruling political parties (KBL and UNIDO) have
fielded their respective presidential and vice presidential candidates
in conventions and proclamations attended by thousands of people.
So much time, effort and money have already been spent. We can
take judicial notice of the fact that the overwhelming sentiment and
desire of our people is for the holding of the coming snap elections
and that they have tacitly consented and approved the law in
question. At this juncture, We cannot now deprive them of this right
of suffrage. The two coordinate branches of the government
(legislative and executive) have spoken. The judiciary should not be
an obstacle to the people's desire to select their Chief Executive in
the forthcoming snap polls.
ACCORDINGLY, I vote to dismiss the petitions.
469

SEPARATE OPINION
GUTIERREZ, JR., J.:

Implicit in the republican nature of our State is adherence to the rule
of law. All acts of government must conform to the Constitution.
Otherwise, they have to be declared void.
As early as 1919, in the leading case of Villavicencio v. Lukban
(39 Phil. 778, 787), this Court declared emphatically that "no
official, no matter how high, is above the law" and that "the law x x
x is the only supreme power in our system of government and every
man who by accepting office participates in its functions is only the
more strongly bound to submit to that supremacy and to observe the
limitations which it imposes upon the exercise of the authority
which it gives.''
Today, the above declaration warrants repeating. The law
involved in these petitions is no less than the Constitution, the
supreme law of the land enacted by the people in their exercise, in
its highest sense, of sovereign power. The legislative power vested
in the Batasang Pambansa may be employed only within the
confines of constitutional boundaries. The President is similarly
subject to constitutional limitations and considering his solemn oath,
invoking the help of God, to "preserve and defend the Constitution,"
he can execute only such statutes as do not conflict with the supreme
law of the land.
In Mutuc v. Commission on Elections (36 SCRA 228, 234) this
Court declared:
"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 manifest fealty to the rule of law, with priority
accorded to that which occupies the topmost rung in the legal hierarchy. 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 guard lest the restrictions on its authority, whether
substantive or formal, be transcended. The Presidency in the execu-
470

tion of the laws cannot ignore or disregard what it ordains. In its task of
applying the law to the facts as found in deciding cases, the judiciary is
called upon to maintain inviolate what is decreed by the fundamental law.
Even its power of judicial review to pass upon the validity of the acts of the
coordinate branches in the course of adjudication is a logical corollary of
this basic principle that the Constitution is paramount. It overrides any
governmental measure that fails to live up to its mandates. Thereby there is
a recognition of its being the supreme law.''
I am constrained to reiterate the above basic principles because some

distinguished counsel have come forward with the strange
proposition that inspite of the clear circumvention by both the
Legislature and the Executive of express procedures mandates by
the Constitution, "national interest" requires that we should overlook
the violations and dismiss the present petitions.
All members of this Court have taken an oath "na aking
itataguyod at ipagtatanggol ang Saligang Batas ng Pilipinas." We do
not preserve and defend the Constitution through a circumvention of
its requirements and an ignoring of its mandates.
The policy nature of their concerns and the passion of politics
now animating them may mitigate the inattention of the Batasan and
the Executive to scrupulous compliance with Section 9, Article VII
of the Constitution. We cannot enjoy the same luxury. I personally
feel that during these critical times, more than in happier days, we
should insist on compliance with the rule of law in its punctiliously
authentic form. National interest and political stability cannot be
premised upon violations of our fundamental law. Political
expediency and the momentary, easily forgotten cry of the public are
too precarious and shifting to become legal foundations of a free and
hopefully prosperous society. Indeed, much depends on the
forthcoming elections but even more is at stake in the maintenance
of constitutionalism upon which our democratic government is
founded and because of which popular and free elections are held.
I find no difficulty in concluding that Batas Pambansa Blg. 883 is
unconstitutional.
471

BP 883 calls a special election for president and vicepresident. It is

elementary in the law of public officers that no valid appointment or
election to any public office may be effected if the office is not
vacant. In the normal course of events, the Office of the President
becomes vacant upon the expiration of the term of an incumbent. A
regular election fills the vacancy. But we are not concerned with a
regular election. There is a call for a special or an emergency
election.
A special election may not be called for just any purpose or on
any occasion. A special election becomes necessary only when a
vacancy is created by death, permanent disability, removal from
office, or resignation. I cannot accept the proposition that a
simulated or fictitious vacancy is a "vacancy" as understood in the
law of public officers. The vacancy must be real and in esse, not a
parody or shadow of the real thing. In the same way that death,
disability, or removal from office must be actual and permanent
before the pertinent provisions of Section 9, Article VII of the
Constitution may come into play, so must a resignation be real and
irrevocably permanent. Inspite of all the learned arguments of
distinguished counsel, I still fail to see how special or emergency
elections may be held for a position which is not vacant. Or how the
call for special elections can become the means of creating in the
future the now nonexistent vacancy. Or how a vacancy can come
about only after special and emergency elections to fill that very
same vacancy have already been held. Credulity can be stretched
only too far.
If the exigencies of national interest are pressing, now or in the
near future, and if the need for establishing political and economic
stability is imperative, that elections for a President and a Vice-
President can no longer wait for 1987, the Constitution provides the
remedy. The President can resign and pursuant to Section 9 Article
VII of the Constitution, the Speaker of the Batasan shall act as
President until the President and the Vice-President or either of them
shall have been elected in the special elections called to fill the
vacancy thus created and shall have qualified. The muddling of the
President's term of office shall also be obviated. By the same
provision of the Constitution, a new term of office, which ignores
the
472

present fixed term of the incumbent, shall commence at noon of the
tenth day following the proclamation and shall end at noon on the
thirtieth day of the sixth year thereafter.
I find Section 9 of Article VII clear and intelligibly simple. Any
layman reading it can easily grasp its meaning and understand the
contingencies for which it was intended. The words of Chief Justice
Enrique M. Fernando speaking for the Court in J.M. Tuason & Co. v.
Land Tenure Administration (31 SCRA 413, 422) are appropriate:
"We look to the language of the document itself in our search for its
meaning. We do not of course stop there, but that is where we begin. It is to
be assumed that the words in which constitutional provisions are couched
express the objective sought to be attained. They are to be given their
ordinary meaning except where technical terms are employed in which case
the significance thus attached to them prevails. As the Constitution is not
primarily a lawyer's document, it being essential for the rule of law to obtain
that it should ever be present in the people's consciousness, its language as
much as possible should be understood in the sense they have in common
use. What it says according to the text of the provision to be construed
compels acceptance and negates the power of the courts to alter it, based on
the postulate that the framers and the people mean what they say. Thus there
are cases where the need for construction is reduced to a minimum."
Since the Constitution itself provides an easily followed remedy, one

which any fairly literate citizen can readily comprehend, I do not see
why the Legislature and the Executive should adopt a new fangled,
perplexing, and constitutionally infirm method of achieving a most
desirable end. I believe that all of us in Government must sincerely
demonstrate our readiness to abide by the terms and procedures of
the Constitution even as we try to solve serious national problems.
Neither can the special elections be premised on the
accountability provisions in Article XIII of the Constitution. Snap
elections to make the executive accountable to the people are for
parliamentary systems. We have a presidential form of government.
When the 1973 Constitution came into force and effect on January
17, 1973, it provided for a parliamentary system. Section 13 of
Article VIII provided that "the National
473

Assembly may withdraw its confidence from the Prime Minister

only by electing a successor by a majority vote of all its members."
Executive power was then exercised by the Prime Minister assisted
by his cabinet. The President was only a symbolic head of state. The
National Assembly could remove the Executive by majority vote but
the Executive could also have the Assembly dissolved and have the
questions on fundamental issues resolved by the people in so-called
snap elections.
Before this parliamentary government could be installed, we
amended the Constitution and returned to the presidential form. Any
lingering traces of parliamentarism carried over from the original
1973 provisions only serve to make our government even more
presidential. The dominance of the Executive over the Legislature is
much more marked now than in the 1935 presidential system. This
being so, the accountability aspects of parliamentary systems cannot
be used to justify our legitimating BP 883.
I share the sentiments of the respondents and some of the
petitioners in their desire for ascertaining the people's will. But I
submit that our basic law, the act of the people which regulates the
entire fabric of our government, must be followed.
I am, therefore, constrained to dissent and to maintain my
original vote to enjoin the holding of elections under a statute I find
null and void.
SEPARATE OPINION
DELA FUENTE, J.:
For the reasons well stated by my distinguished colleague, Hon.

Lino Patajo, I am inclined to share the view expressed in his dissent
that B.P. Blg. 883 is unconstitutional. For it contravenes the intent,
letter and spirit of the succession provision—section 9, Article VII
—of the Constitution. To my mind the said statute would, if
implemented, sidetrack or bypass the cited constitutional provision
designed to govern the selection of a successor in case of vacancy in
the office of
474

the President before the next regular election in 1987. A conditional

or qualified "resignation" of the President which shall take effect
after the February 7, 1986 "special presidential election", and only
upon the proclamation and qualification of the candidate chosen by
the electorate, is not sufficient ground or justification for a so-called
"snap" election. In explicit language, section 9, Article VII, provides
for the constitutional formula or device in filling the Office of the
President the moment it becomes vacant by reason of the
incumbent's "permanent disability, death, removal from office or
resignation" at anytime prior to the end of his term in June 1987.
Such "resignation," as I see it, must be one resulting in a permanent
vacancy—actual or in esse, not merely prospective or inchoate or
contingent—as of the time of the special presidential election,
whereupon the Batasan Speaker shall take over the vacated office as
caretaker President until a new President shall have been duly
elected, proclaimed and qualified by taking his oath of office.
I have reached this conclusion after the hearings and upon due
consideration of the arguments and submissions for the petitioners
and the respondents, the former Chief Justice E.M. Fernando, and
other legal luminaries, especially those of former Vice-President
Emmanuel Pelaez in an article 1 entitled
"UNCONSTITUTIONALITY OF THE 'SNAP' POLL," which he
mentioned at the hearing as he gave his comments on the
constitutional issue before this Court. I reproduce hereinbelow the
2
most pertinent portions of his dissertation. I
________________
1 published in the November 23, 24 and 26, 1985—issues of Bulletin Today.

2 "The question of the constitutionality of the 'snap election for President—and
maybe Vice-President?—on Jan. 17, 1986 proposed in Cabinet Bill No. 7 is a very
serious one. Grave doubts raised on its constitutional validity must be resolved before
any favorable action is taken on the proposal. Otherwise, the political controversy
now rocking the country could degenerate into irreversible national disunity. Worse
still, the rule of law in our country, the very foundation of a free and democratic
society, would be irreparably compromised.
x x x x x x x x x
475
also find the observations of Atty. Sedfrey Ordoñez in the petition

and the reply filed for the Liberal Party and former Senator Jovito
Salonga as well as those of Atty. Raul Gonzales, National Bar
Association President, who appeared and argued at the hearing, very
persuasive enough to overcome the doubts I had entertained earlier
as to the alleged facial un-
______________
". . . a severe blow on it at this time, like holding an unconstitutional presidential election,
could irreparably destroy it.
x x x x x x x x x
"The consequence of all this was: as ratified by the people, the present presidential
succession procedure, which was adopted together with other constitutional amendments on
Jan. 17, 1984, is definite, precise, and clear, leaving no room for the Batasan to change or add
to it one whit. No discretion whatsoever is given to the Batasan to exercise its legislative power
either to amend or to ignore any portion thereof.
"The Batasan's clear duty is circumscribed solely to implement the presidential succession
formula now embodied in the Constitution and nothing more. Its role in putting it into effect is
purely ministerial, which in layman's language means automatic, mechanical, not requiring the
exercise of judgment. To test the validity of the foregoing assertions, let us analyze Section 9,
Article VII—the only section of the Constitution that deals with presidential succession—
sentence by sentence.
'Section 9. In case of permanent disability. . . .
x x x x x x x x x
"The first sentence presupposes that a Vice-President shall have been elected and shall have
qualified. It provides that in case the Presidency becomes vacant by reason of permanent
disability, death, removal from office or resignation, the Vice-President shall automatically
become President. This is the 'spare tire' concept of the Vice-Presidency which our people are
familiar with and easily understand from experience. . . The provision does not apply to the
present where we have no Vice-President.
"The next sentence provides that in the absence of a President and Vice-President, the
Batasan shall by law provided for a further line of succession. This is one of only two instances
where the Constitution authorizes the Batasan to take a hand in the presidential succession
procedure. The other one is found in the fifth and last
476

constitutionality of B.P. Blg. 883. I am, however, unable to agree

with former Vice-President Pelaez and others who have stressed the
unconstitutionality of the law in question but urged, nonetheless, this
Tribunal to allow its implementation
______________
paragraph of Section 9 above-cited, in case of death, permanent disability or resignation of the

Speaker.
"In other words, where the Constitution wants the Batasan to legislate on presidential
succession, it expressly says so. The clear implication is that, where the Constitution itself
mandates the precise procedure to the last detail, as we shall presently see, the Batasan must
keep out.
"The logic of this position is unassailable. If the Constitution were to permit the Batasan the
discretion to revise the presidential succession formula laid down by it with meticulous
exactitude or, as proposed in Cabinet Bill No. 7 [now, B.P. Blg. 883], adopt an entirely new
succession procedure, we would have a situation where every Batasan could be tinkering with
the matter. The inevitable consequence would be the nullification of the procedure laid down by
the Constitution. The plain language of the Constitution's directive to the Batasan is: you may
supplement the line of succession, as in the two instances above-cited where you are expressly
authorized to do so, but you may not touch what is already prescribed by the Constitution or,
much less, replace it with another.
"The third and following sentences prescribe the succession procedure if a permanent
vacancy occurs during the term of President Marcos, that is, until its expiration in June, 1987.
The trigger mechanism which would set off the events enumerated in these provisions is the
occurrence of a permanent vacancy—a real, not a "paper" vacancy. This is sine qua non.
Without the occurrence of an actual and permanent vacancy, the presidential succession
procedure cannot come to life. With is occurrence, the events take place, dominolike,
automatically. The Batasan has no authority whatsoever to contrive another cause, like a post-
dated resignation to take place only if the President loses in the (snap) election proposed in
Cabinet Bill No. 7, to justify such an election. This would nullify the succession procedure of
the Constitution and would be grossly unconstitutional.
"Let us, by re-reading the third and succeeding sentences, pinpoint the specifics of the
succession procedure mandated by the Constitution.
"Upon the occurrence of a permanent vacancy in the Presidency
477

by taking into account "supervening events" transpiring since the

filing of the petitions and the "people's overwhelming desire to hold"
the "snap" election, the constitutional issue having "become a
political one, beyond its [this Court's] authority to enjoin."
_______________
during the present term of President Marcos, the following events would take
place:
1. The Speaker of the Batasan automatically becomes the Acting President. He shall
serve as such until President and Vice-President, or either of them shall have been
elected and shall have qualified. The language of the Constitution is clear enough,
requiring no explanation or elaboration.
2. On the third day after the occurrence of the vacancy, (a) at ten o'clock in the morning,
(b) the Batasan shall convene in accordance with its rules without need of a call—the
constitutional provision itself makes the call in advance; and (c) within seven (7) days
enact a law, (d) calling a special election to elect a President and Vice-President; (c)
not earlier than fortyfive (45) nor later than sixty (60) days from the time of such call.
"Please note how the Constitution goes into painstaking details. The convening of the Batasan
must be on the third day from the occurrence of the vacancy—not on the first or second or
fourth and so forth but on the third. Even the hour of convening is set at ten (10) o'clock. The
Batasan is given a deadline of seven (7) days within which to enact a law calling for a specified
election. The candidates to be selected are specified—the President and the Vice-President. The
Batasan is given very little leeway in fixing the date of the election: it must not be earlier than
forty-five (45) nor later than sixty (60) days after the call. This minuteness of detail had a
definite purpose, as we shall presently see.
"The provisions of the above-mentioned Section 9, Article VII, are contrary to all traditional
notions of constitution-making. The standard knowledge is that a constitution must be couched
in general terms, allowing the legislature to flesh out the constitution's broad outlines with
details. As above-shown, however, the abovecited Section 9 does not follow the traditions. The
Constitution itself supplies the details. It allows the legislature no leeway to do so.
x x x x x x x x x
"The foregoing circumstances reveal the clear intent of the Constitution: to prohibit the
Batasan from legislating at all on succes
478

While the practice followed under the Constitution and our election
laws has been to allow the President or an elective public official to
submit himself for re-election to the same office without vacating it
(remaining in office until the end of his term and during the election
period), this generally refers to a "regular" election, not to a special
election called precisely to fill up an existing permanent vacancy in
the elective office. The device or formula found in Section 9, Article
VII, having been
______________
sion, except in the two instances above-cited where the Constitution expressly
authorizes it to do so.
x x x x x x x x x
'The 'law' calling a special election under the presidential succession provision,
Section 9 of Article 7, is in effect, a measure sui generis wherein the Constitution has
acted both as the fundamental law of the land and as the legislature pre-empting any
claim of the Batasang Pambansa to any legislative authority to change or replace the
constitutionally prescribed procedure of presidential succession.
"The claim that the Batasang Pambansa may now, in the exercise of its power of
general legislation, enact a law on presidential succession to call a special election,
under circumstances other than those enumerated in the Constitution, thereby
amending and shortcircuiting the very precisely laid down procedure in Section 9,
Article VII on the subject, is utterly baseless. Neither Article VII (on powers of the
President and Vice-President) no Article VIII (on the powers of the Batasan) of the
Constitution grants it the authority claimed.
x x x x x x x x x
"On the basis of the foregoing detained scrutiny of the pertinent constitutional
provisions, there can be no doubt on the Constitution's meaning the intent: such a
special presidential election during President Marcos' term must take place and must
be carried out strictly in accordance with the circumstances and procedures
specifically laid out by the Constitution.
"Cabinet Bill No. 7, however, would openly defy the Constitution. Consider the
following:
(a) While Section 9, Article VII of the Constitution would authorize a special
election during the term of President Marcos only in case his office is
permanently and actually vacant, the cabinet bill would authorize a "snap"
election without the occurrence of such a vacancy. (President Marcos' letter
of
479

so conceived and designed in detail to meet a possible sudden

vacancy occurring during a short period before the regular
presidential election in 1987, respect for the will of the Filipino
people who ratified the constitutional amendment in 1984 demands,
I think, no less than strict adherence to the aforementioned
succession provision. B.P. Blg. 883 constitutes, plainly, a deviation
from and evasion of that provision.
_______________
"resignation" categorically states that he will relinquish the Presidency only

if some one else is elected to and qualifies for the position. Since the
"resignation" would be simultaneous with the assumption of office or any
person elected other than President Marcos, there would actually be no
vacancy.)
(b) While the Constitution would install the Speaker as Acting president from
the moment the vacancy occurs until a President or, in his absence, a Vice-
President, shall have qualified, so that, in effect, it is the Speaker, as Acting
President, who would oversee the election, the cabinet bill would brush the
Speaker aside, (and with him the Constitution), and allow President Marcos
to usurp the Speaker's role and oversee the election in which his own fitness
to continue as President would be the crucial issue.
(c) While the Constitution specifically directs the Batasan to meet on the third
day after the vacancy occurs to enact a law calling for the special election,
within seven (7) days, the cabinet bill would blithely ignore these specifics.
"If the proposal becomes a law and is upheld, then the constitutional provisions on
the same subject would be set aside. It would be a dangerous precedent. . .
x x x x x x x x x
"If we would but. . . hold uppermost in our minds the future of constitutional
government in our country, I believe there can be an accommodation which would
bolster rather than subvert the rule of law. ln this connection, may l offer the
following suggestion; . . .
"1 In his speech in Cebu on Nov. 15, 1985, the President stated 'more or less, that a
'snap' election was crucial because his leadership had been assailed abroad and it was
necessary to show the world that the people were still with him. . .
"If this is the objective, rather than holding a 'snap' election in violation of the
Constitution, I would endorse the recommendation of
480

Finally, if the objective of the so-called "snap" election la was to

enable the President to ask the Filipino people for vote of
confidence, the most appropriate and adequate vehicl for that is a
referendum as suggested by MP Arturo Tolentin and former Vice-
President Pelaez. A negative vote would sure ly bring about a
vacancy in the office of the President, which can then be filled up in
accordance with the succession pro cedure provided by section 9,
Article VII. The other option also suggested by both, is a
constitutional amendment incor porating the features of B.P. Blg.
883, to be submitted to the people for ratification.
_______________
Senator Arturo M. Tolentino that the exercise appropriate for the purpose should
be a referendum on whether or not the President should continue in office.
"If the vote is in the affirmative, the President would then have the necessary
weapon to counteract what he believes to be a campaign of destabilization against
him. . .
"If the vote is in the negative, then the President should resign without delay. A
vacancy in the Presidency would then occur, in which case the constitutional
succession procedure would be operative. . .
"2. Another alternative would be to amend the Constitution. The Batasan should
meet as a constituent assembly and approve a resolution proposing an
amendment to the Constitution authorizing the calling of a special
presidential election more or less in the manner proposed in Cabinet Bill No.
7 or as may be agreed between the majority, and the minority in the Batasan.
The resolution should then be submitted to the people in a plebiscite. . .
"In either case, the Constitution shall have been shielded from further assaults on
its supremecy. . ."
481
SEPARATE OPINION
ALAMPAY, J.:
The basic duty of this Court is restricted to the determination of

whether B.P. 883 calling for a special election is in accord with or in
violation of our Constitution. Difficulty has been added to this task
which the Court has to accomplish because of the inconsistent and to
an extent bewildering positions taken and manifested by some of the
petitioners during the hearing of these cases. Members of the Court
are puzzled as to what petitioners really profess this Court should
rightfully decree. Indeed, it would seem that what was initially asked
by certain petitioners in these consolidated petitions to be done by
this Court based on the grounds and reasons stated in their
respective petitions, such as to prohibit the respondent Commission
from implementing B.P. 883, on account of this statute's
constitutional infirmity, have been now abandoned by the same
petitioners who but recently assailed the legality of B.P. 883. The
unconstitutionality of said statute is still being insisted upon but,
nevertheless, it is prayed that such governing and decisive factor be
disregarded, ignored or even circumvented and that this Court
should cooperate in the alleged unanimous will of the Executive and
Legislative departments of our country that there be an election for
the Presidency and Vice-Presidency of the nation next February,
1986, rather than in 1987.
It is my submission that the Court should detach itself from these
swirling and fickle attitudes that it has perceived and it should not be
moved by the rhetorical allusions to the alleged but unquantified
desire of our people to participate in an election which is at the same
time contended to be not sanctioned by and in conflict with what is
clearly provided for in our Constitution. The rash and reckless
suggestions suggested to the Court by petitioners will only create
and give rise to a dangerous precedent that could erode the stability
that inherently should attach and be reposed in the Constitution.
Appeals to what is claimed to be the present popular wish should
assume no significance in the resolution of the primary issue.
482

What our constitution decrees should be respected and followed.

It is my considered view that the special election on February 7,
1987, called for pursuant to Batas Pambansa Blg. 883, does not meet
at all the specific condition that there should first be an actual and
existing vacancy before a special election can be held to elect a new
President bef ore the present term of the incumbent expires on May
30, 1987. Logic and simple reasoning alone even without need of
legal citations, will be sufficiently persuasive to form a conclusion
that no special election is necessary to fill up a position which is not
attended by a vacancy. The absence of an actual vacancy negates
and precludes acceptance of any unwarranted and expensive special
election. The searching analysis made by other Colleagues in the
Court who share with me in the above stated views make needless a
repetitious and extended dissertation on this matter. Absent an actual
and real vacancy, the holding of a special election cannot be given
color of legality by the reference to certain conditions attaching to
the imputed vacancy but which conditions most plainly would
happen only after the election had already taken place and with the
position to be filled up by the election uninterruptedly occupied by a
legal occupant.
On this simple view, I readily conclude that Batas Pambansa Blg.
883 should be declared unconstitutional for being violative of the
spirit and letter of our Constitution. I vote, therefore, to declare
Batas Pambansa Blg. 883 unconstitutional and consequently, to
enjoin the respondent Commission on Elections from conducting the
unwarranted special election for President and Vice-President on
February 7, 1986.
DISSENTING OPINION
PATAJO, J., dissenting:
Fully aware as I am that all laws are presumed constitutional and

that all reasonable doubt should be resolved in favor of their
constitutionality and only when the conflict
483

between any law and the Constitution is clearly beyond reasonable

doubt, should said law be declared unconstitutional, I approach the
issue of the constitutionality of Batas Pambansa Blg. 883 in the
context of what appears to be a popular clamor for the holding of a
special presidential and vice-presidential election on February 7,
1986.
The common grounds alleged in the petitions assailing the
constitutionality of said law are that the only instance that the
Batasan can call for the holding of an election before the expiration
of the term of the President in 1987 is upon the occurrence of the
contingencies provided for in Section 9 of Article VII of the
Constitution, namely the permanent disability, death, removal from
office or resignation of the President before the presidential election
of 1987 for in that case a vacancy in the Office of the President has
been created triggering the mechanism f or the calling of a special
election to fill up said vacancy together with the election of the vice-
president in accordance with the provisions set forth in Section 9,
Article VII of the Constitution and that Batas Pambansa Blg. 883
has in effect shortened the term of the President elected in 1981
without going through the process of amending the Constitution as
the Batasan in enacting said law acted in the exercise of its
legislative powers and not as a constituent body. Petitioners contend
that the letter of the President recommending to the Batasan the
calling of a special election because of the need for the President to
seek a new mandate in an election that will assess, as demanded by
the opposition, the policies and programs being undertaken by him
upon his undertaking that he will irrevocably vacate the position of
the President effective when such election is held and the winner is
proclaimed and qualified as president by taking his oath of office ten
days after his proclamation is not a resignation which would create a
vacancy within the meaning of Section 9 of Article VII. That there is
no vacancy is evident from the fact that the President still continues
in office until the assumption in office by the winning candidate in
the special election instead of the Speaker who, under the provision
of the Constitution, becomes acting president in case of a permanent
disability, death, removal from office or resignation of the President
before the presidential election of 1987. What Section 9, Article VII
on-
484

templates is an actual vacancy and not a vacancy in futuro.

The Solicitor General defending the constitutionality of said law
contends that there is nothing in the Constitution which prohibits the
Batasan Pambansa in the exercise of its legislative plenary powers to
call for the holding of the special election for the Office of the
President on February 7, 1986 upon the undertaking of the
incumbent President that he will irrevocably vacate the position of
president if an election is held for said office and the winner
proclaimed and qualified by taking his oath of office ten days after
his proclamation. The occasion for the holding of said special
election is the need of the incumbent President to seek a new
mandate in an election that will assess, as demanded by the
opposition, the policies and programs being undertaken by him.
It is my considered view that Batas Pambansa Blg. 883 is
unconstitutional.
While the 1973 Constitution, as amended, has adopted several
features of the parliamentary system, our government is still
essentially a presidential form of government and the term of office
of the President is for a fixed term of six years. Since the incumbent
President was elected in 1981 for a term of six years beginning at
noon on the 30th day of June of 1981 and ending noon of the same
date six years thereafter when the term of his successor shall begin,
Batas Pambansa Blg. 883 had shortened the term of the President
without going into the process of amending the Constitution. The
shortening of the term of the office of the incumbent President
cannot be justified by the action of the President agreeing to vacate
his office on condition that a special election be held and the
winning candidate for said office is proclaimed and qualified as
president by taking his oath of office ten days after the proclamation.
The President can only shorten his term of office by unconditionally
resigning therefrom before its expiration in order that a vacancy is
created and the Speaker of the Batasan shall act as President and the
Batas Pambansa shall call for the holding of a special election to
elect a president and a vicepresident in accordance with the
provisions of Section 9 of Article VII of the Constitution.
485

The letter of the President of November 11, 1985 recommending to

the Batasan the enactment of law calling for special election as there
will be a definite and inevitable vacancy in the Office of the
President which will pave the way for the holding of said special
election because of his undertaking to irrevocably vacate the
position of President effective only when the election is held and the
winner is proclaimed and qualified as president by taking his oath of
office ten days after his proclamation does not create a vacancy that
will trigger the mechanism for the calling of a special election to fill
up said vacancy in accordance with the procedure set forth in
Section 9 of Article VII. Actually, the conditions mentioned by the
President for calling of a special election have not at all created a
vacancy because he continues in office as president up to the
assumption of office of the president-elect. As petitioners correctly
contended, proof that there is no vacancy in the Office of the
President as contemplated in Section 9 of Article VII is that he
continues to exercise the functions of the president instead of the
Speaker who, under the provisions of said Section 9, becomes acting
president in case of a permanent disability, death, removal from
office or resignation of the President before the presidential election
of 1987.
The contention of the Solicitor General that the provisions of
Section 9, Article VII do not preclude the Batasan Pambansa in the
exercise of its plenary legislative powers to call for the holding of a
special election for the position of president in a situation other than
that contemplated in Section 9 such as the need of the incumbent
President f or a new mandate is without merit. While it is true that
the power to call an election is exclusively a legislative prerogative,
such power cannot be exercised where its effect would be to amend
an express provision of the Constitution, more specifically Section 5,
Article VII fixing the term of the office of the president and the
vicepresident to six years. The power to define the term of the
president and vice-president is not legislative but constituent and can
only be exercised thru an amendment to the Constitution in the
manner provided for in the Constitution. In effect, Batas Pambansa
Blg. 883 has amended the Constitution by an act of the Batasan as a
legislative body, not a constituent assembly and without the
ratification of majority
486

votes cast in a plebiscite.
"x x x And we are asked to raise the power from the general legislative
authority by implication, to serve convenience and expedition in making
organic change. If it were conceded that an easier and quicker mode of
change is desirable, a concession not permissible, if the views of the greatest
writers on questions touching government under written Constitutions are of
force, a cannon of constitutional construction forbids the implication of the
authority, for it is the rule that where the means by which the power granted
shall be exercised are specified, no other or different means for the exercise
of such power can be implied even though considered more convenient or
effective than the means given in the Constitution; and the Constitution
gives special power to the Legislature, and provides the means of exercising
it, to effect needed changes in the organic law. x x x." (Ellingham v. Dye,
178 Ind. 336; 99 NE 1, 15). (italics ours.)
Neither can the provision of the Constitution providing for

accountability of public officers be invoked to justify the holding of
a special election contemplated by Batas Pambansa Blg. 883.
Impeachment of the President and the other constitutional officers is
the recourse for holding them accountable.
In short, a special election for the Office of the President before
the expiration of his term in June of 1987 is authorized only on the
occurrences of the contingencies enumerated in Section 9 of Article
VII, namely permanent disability, death, removal from office or
resignation of the President. The undertaking of the President to
vacate his office upon the qualification of the president-elect in the
presidential election of February 7, 1986 is not a resignation within
the meaning of Section 9, Article VII.
While I am not unaware of the popular clamor for the holding of
the "Snap Elections," a move initiated by the "opposition" and
finally accepted by the President in order to provide an opportunity
to submit to the electorate the acceptability of the President's
program and policies of government even before the expiration of
his term of office in June 1987, I believe the duty to uphold the
primacy of the Constitution is a responsibility that this Court cannot
shirk. For as said by the Supreme Court of Michigan speaking
through Cooley, J.:
487

"Constitutions do not change with the varying tides of public opinion and
desire; the will of the people therein recorded is the same inflexible law until
changed by their own deliberative action; and it cannot be permissible to the
courts that, in order to aid evasions and circumventions, they shall subject
these instruments * * * to a construction, as if they were great public
enemies standing in the way of progress, and the duty of every good citizen
was to get around their provisions whenever practicable, and give them a
damaging thrust whenever convenient. They must construe them as the
people did in their adoption. If the means of arriving at that construction are
within their power." Bay City v. State Treasurer, 23 Mich. 499, 506. (italics
ours).
In the same vein is what the Court said in ex rel Kinworthy v.

Martin, 60 Ark. 343, 30 S.W. 421, that in construing Constitutions,
Courts have nothing to do with the argument ab inconveniente and
should not bend the Constitution to suit the law of the hour, quoting
Greencascñe vs. Black, 5 Ind. 557, 565. 11 Am. Jur. 659.
The constitutionality of Batas Pambansa Blg. 883 is a justiciable
one and not a political question which the Court must decide without
equivocation.
I vote, therefore, to grant the petition and declare Batas
Pambansa Blg. 883 unconstitutional. January 7, 1986
January 7, 1986
Re: G.R. No. 72915 (Philippine Bar Association, et al. vs. The
Commission on Elections, et al.) and others
Herewith is a copy of the second revised pages 1 and 2 of the
resolution in the above-entitled snap election cases dated
December 19, 1985. Revision consists in the addition of
paragraph 7 and statement that Melencio-Herrera, J., took no
part.
(Sgd.) GLORIA C. PARAS
Clerk of Court
488

Copy furnished:

72915
Attys. Eduardo F. Hernandez The Solicitor General (x)
& Ricardo J. Romulo (x) 134 Amorsolo St., Legaspi
c/o Phil. Bar Association Village, Makati, MM.
Lawyer's Inn Building
25 Caliraya St., Q.C. The National Treasurer (x)
Intramuros, Manila
Former Justice Jose
B.L. Reyes (x) The Commission on Elections
Co-counsel for petitioners Intramuros, Manila (x)
192 F. Benitez St.
San Juan, Metro Manila The Director of Printing (x)
Port Area, Manila
Atty. Eugene A. Tan (x)
Counsel for petitioners
11th Flr., Pacific Bank Bldg.
Ayala Avenue, Makati, MM
72922
Atty. Martiniano P. Vivo (x) The Solicitor General (x)
Counsel for petitioners 134 Amorsolo St.,
6th Flr., BF Topman Bldg. Legaspi Village
6799 Ayala Ave., Makati, MM Makati, Metro Manila

Atty. Antonio M. Rosales (x) Commission on Elections (x)
Counsel for petitioners Intramuros, Manila
Suite 304-305, Madrigal Bldg.
Escolta, Manila The Treasurer of the Phils. (x)
Bureau of Treasury
Commission on Audit (x) Intramuros, Manila
Don M. Marcos Ave., Q.C.
The Commission of Budget (x)
Office of the Budget
& Management
The Director of Printing (x) Malacañang, Manila
Manila
489

72923

Atty. Ramon A. Gonzales (x) The Solicitor General (x)
Counsel for petitioners 134 Amorsolo St., Legaspi
5th Flr., J & T Bldg. J & T Bldg. Village, Makati, MM
R. Magsaysay Blvd.,
Sta. Mesa, Manila
The Treasurer of the Phil. (x)
Intramuros, Manila

The Commission on Elections
(x)
Intramuros, Manila
72923

72924

Assemblyman Augusto S. The Solicitor General (x)
Sanchez (x) 134 Amorsolo St.,
Batasan Pambansa Legaspi Village
Diliman, Q.C. Makati, Metro Manila

Atty. Emigdio S. Tanjuatco Jr. The Commission on Elections
(x) (x)
Rm. 402 Equitable Bank Bldg. Intramuros, Manila
P. de Roxas cor. G. Puyat Ave.
Makati, Metro Manila The Auditor General (x)
Commission on Audit
Atty. Fulgencio S. Factoran Jr. Don M. Marcos Ave., Q.C.
(x)
Atty. Edgardo R. Abaya (x)
Rm. 402 Equitable Bank Bldg. Atty Felicitas S. Aquino (x)
P. de Roxas cor. Gil Puyat Ave. Atty William Chua (x)
Makati, Metro Manila 5th Flor Evekal Bldg.
Pasay Road, Makati, MM

72927

Atty. Sedfrey A. Ordoñez (x) The Solicitor General (x)
Salonga, Ordoñez, Yap, Legaspi Village,
Corpus & Padlan Makati, Manila
Suite 322 Rufino Bldg.
Ayala Ave., Makati, MM The National Treasurer (x)
Intramuros, Manila
490

72935

Hon. Manuel S. Alba (x) Hon Victor C. Macalindag (x)
Minister of the Budget Treasurer of the Phil.
Office of the Budget & Bureau of Treasury
Management Intramuros, Manila
Malacañang, Manila

72954

Atty. Romeo L. Go (x) The Solicitor General (x)
7 Kennedy Drive, Pleasant Legaspi, Village
view Subd. Makati, Metro Manila
Tandang Sora, Quezon City
The Commission on Elections (x)
Intramuros, Manila

72957
Atty. Raul M. Gonzales The Solicitor General (x)
& Assoc. (x) 134 Amorsolo St.,
Counsel for petitioners Legaspi, Village
Suite 415-416 May Bldg. Makati, Metro Manila
Rizal Avenue, Manila
The Commission on Elections (x)
Atty. Arturo M. de Castro (x) Intramuros, Manila
Intervenor
7th Flr., LTA Bldg., 118 Perea St. The National Treasurer (x)
Makati, Metro Manila Intramuros, Manila

Former Chief Justice Enrique
M. Fernando (x)
Amicus Curiae
Rm. 327, Manila Hotel
Manila

72986

Atty. Juan T. David (x) The Solicitor General (x)
Petitioners in 72986 134 Amorsolo St.,
Suite 212 Burke Bldg. Legaspi Village
Escolta, Manila Makati, Metro Manila

Commission on Elections (x)
Intramuros, Manila
491

72968

Atty. Abraham F. Sarmiento (x) The National Treasurer (x)
Counsel for petitioners in 72968 The Ministry of Finance Bldg.
21 Elco Bldg. Agrifina Circle, Manila
202 E. Rodriguez Sr. Blvd.
Quezon City The Hon. Minister (x)
Ministry of the Budget
The Hon. Minister (x) Malacañang, Manila
Ministry of Education,
Culture, & Sports Commission on Audit (x)
Palacio del Gobernador Quezon City
Intramuros, Manila
Atty. Arturo de Castro (x)
Atty. Salvador Nosce (x) Intervenor
Amicus Curiae 7th Flr., LTA Bldg.
2010 Leon Guinto Street 118 Perea St.,
Malate, Manila Legaspi Village
Makati, Metro Manila

Former Chief Justice Enrique
M. Fernando (x)
Amicus Curiae
c/o Third Flr., Manila Hotel
Roxas Blvd., Manila

Former Senator Emmanuel Pelaez
(x)
Amicus Curiae
Padilla Bldg., Emerald Avenue
Ortigas Complex
Pasig, MM

72929

Atty. Mary Concepcion Bautista The Solicitor General (x)
(x) 134 Amorsolo St.,
Counsel for petitioners Legaspi Village
3034 Gen. G. del Pilar St. Makati, Metro Manila
Makati, Metro Manila
Hon. Maximiano Sevellano (x)
Chairman, COMELEC
Intramuros, Manila
492

The National Treasurer (x)

Intramuros, Manila

The Minister of the Budget (x)
Malacañang, Manila

The Commissioner of Audit (x)
Don M. Marcos Ave., Q.C.
72935

Assemblyman Alberto G. Romulo The Solicitor General (x)
(x) 134 Amorsolo St.,
Petitioner & Coronel for Co. Legaspi Village
petitioners Makati, Metro Manila
25 Malipajo St., Valle Verde III
Pasig, Metro Manila Commission on Elections (x)
Intramuros, Manila
——o0o——
493
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02 Phil. Bar Association v. COMELEC

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SUPREME COURT REPORTS ANNOTATED 455

Philippine Bar Association vs. Commission on Elections

REPUBLIC OF THE PHILIPPINES

Quoted hereunder, for your information, is a resolution of the Court

456 SUPREME COURT REPORTS ANNOTATED

DECLARE solution P. 883 unconstitutional and to grant the

"Chief Justice Aquino is of the opinion that the revision of the

* Revision consists in the addition of paragraph 7 and statement that Melencio-

SUPREME COURT REPORTS ANNOTATED 457

TEEHANKEE, J., concurring:

I vote for the dismissal of the petition for prohibition against

458 SUPREME COURT REPORTS ANNOTATED

stitution which could be the basis of the holding of a special election

SUPREME COURT REPORTS ANNOTATED 459

3 Times Journal issue of August 4, 1985.

460 SUPREME COURT REPORTS ANNOTATED

SUPREME COURT REPORTS ANNOTATED 461

dangerous stalemate in both the political and economic climates' in

5 Bulletin Today issue of December 17, 1985.

either to re-elect the incumbent or choose a new leader.

6 Bulletin Today issue of December 16, 1985, Jesus Bigornia.

SUPREME COURT REPORTS ANNOTATED 463

question more political than the election.

464 SUPREME COURT REPORTS ANNOTATED

sovereign capacity at the scheduled election, which hopefully will be

The narrow legal issue involved in these petitions is whether Batas

SUPREME COURT REPORTS ANNOTATED 465

Long ago, U.S. Chief Justice Marshall laid down an epochal

ESCOLIN, J., separate opinion:

In my view, petitioners failed to demonstrate that BP 883 clearly

466 SUPREME COURT REPORTS ANNOTATED

clearly proven to be violative of the letter and the spirit of the

Article VII of the Constitution, Section 9 thereof, as amended,

SUPREME COURT REPORTS ANNOTATED 467

on the day of the election. When, therefore, the Batasang Pambansa,

"2. The legislative power vested in the Batasang Pambansa is

468 SUPREME COURT REPORTS ANNOTATED

stitution (see Article VII, Section 1 of the Constitution; Vera vs.

"3. The calling of an election is essentially legislative in nature

Besides, supervening events have occurred since the passage of the

SUPREME COURT REPORTS ANNOTATED 469

GUTIERREZ, JR., J.:

470 SUPREME COURT REPORTS ANNOTATED

I am constrained to reiterate the above basic principles because some

SUPREME COURT REPORTS ANNOTATED 471

BP 883 calls a special election for president and vicepresident. It is

472 SUPREME COURT REPORTS ANNOTATED

Since the Constitution itself provides an easily followed remedy, one

SUPREME COURT REPORTS ANNOTATED 473

Assembly may withdraw its conﬁdence from the Prime Minister

DELA FUENTE, J.:

For the reasons well stated by my distinguished colleague, Hon.

474 SUPREME COURT REPORTS ANNOTATED

the President before the next regular election in 1987. A conditional

1 published in the November 23, 24 and 26, 1985—issues of Bulletin Today.

also ﬁnd the observations of Atty. Sedfrey Ordoñez in the petition

476 SUPREME COURT REPORTS ANNOTATED

constitutionality of B.P. Blg. 883. I am, however, unable to agree

paragraph of Section 9 above-cited, in case of death, permanent disability or resignation of the

SUPREME COURT REPORTS ANNOTATED 477

by taking into account "supervening events" transpiring since the

478 SUPREME COURT REPORTS ANNOTATED

SUPREME COURT REPORTS ANNOTATED 479

so conceived and designed in detail to meet a possible sudden