Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-32432 September 11, 1970

MANUEL B. IMBONG, petitioner,
vs.
JAIME FERRER, as Chairman of the Comelec, LINO M. PATAJO and CESAR
MILAFLOR, as members thereof, respondents.

G.R. No. L-32443 September 11, 1970

IN THE MATTER OF A PETITION FOR DECLARATORY JUDGMENT REGARDING

THE VALIDITY OF R.A. No. 6132, OTHERWISE KNOWN AS THE CONSTITUTIONAL
CONVENTION ACT OF 1970. RAUL M. GONZALES, petitioner,
vs.
COMELEC, respondent.

Manuel B. Imbong in his own behalf.

Raul M. Gonzales in his own behalf.

Office of the Solicitor General Felix Q. Antonio, Acting Assistant Solicitor General
Ricardo L. Pronove, Jr., and Solicitors Raul I. Goco, Bernardo P. Pardo, Rosalio A. de
Leon, Vicente A. Torres and Guillermo C. Nakar for respondents.

Lorenzo Tañada, Arturo Tolentino, Jovito Salonga and Emmanuel Pelaez as amici
curiae.

MAKASIAR, J.:

These two separate but related petitions for declaratory relief were filed pursuant to Sec.
19 of R.A. No. 6132 by petitioners Manuel B. Imbong and Raul M. Gonzales, both
members of the Bar, taxpayers and interested in running as candidates for delegates to
the Constitutional Convention. Both impugn the constitutionality of R.A. No. 6132,
claiming during the oral argument that it prejudices their rights as such candidates. After
the Solicitor General had filed answers in behalf the respondents, hearings were held at
which the petitioners and the amici curiae, namely Senator Lorenzo Tañada, Senator
Arturo Tolentino, Senator Jovito Salonga, and Senator Emmanuel Pelaez argued orally.

It will be recalled that on March 16, 1967, Congress, acting as a Constituent Assembly
pursuant to Art. XV of the Constitution, passed Resolution No. 2 which among others
called for a Constitutional Convention to propose constitutional amendments to be
composed of two delegates from each representative district who shall have the same
qualifications as those of Congressmen, to be elected on the second Tuesday of
November, 1970 in accordance with the Revised Election Code.
After the adoption of said Res. No. 2 in 1967 but before the November elections of that
year, Congress, acting as a legislative body, enacted Republic Act No. 4914
implementing the aforesaid Resolution No. 2 and practically restating in toto the
provisions of said Resolution No. 2.

On June 17, 1969, Congress, also acting as a Constituent Assembly, passed Resolution
No. 4 amending the aforesaid Resolution No. 2 of March 16, 1967 by providing that the
convention "shall be composed of 320 delegates apportioned among the existing
representative districts according to the number of their respective inhabitants: Provided,
that a representative district shall be entitled to at least two delegates, who shall have the
same qualifications as those required of members of the House of
Representatives,"  "and that any other details relating to the specific apportionment of
1

delegates, election of delegates to, and the holding of, the Constitutional Convention
shall be embodied in an implementing legislation: Provided, that it shall not be
inconsistent with the provisions of this Resolution."2

On August 24, 1970, Congress, acting as a legislative body, enacted Republic Act No.
6132, implementing Resolutions Nos. 2 and 4, and expressly repealing R.A. No.
4914.3

Petitioner Raul M. Gonzales assails the validity of the entire law as well as the particular
provisions embodied in Sections 2, 4, 5, and par. 1 of 8(a). Petitioner Manuel B. Imbong
impugns the constitutionality of only par. I of Sec. 8(a) of said R.A. No. 6132 practically
on the same grounds advanced by petitioner Gonzales.

The validity of Sec. 4 of R.A. No. 6132, which considers, all public officers and
employees, whether elective or appointive, including members of the Armed Forces of
the Philippines, as well as officers and employees of corporations or enterprises of the
government, as resigned from the date of the filing of their certificates of candidacy, was
recently sustained by this Court, on the grounds, inter alia, that the same is merely an
application of and in consonance with the prohibition in Sec. 2 of Art. XII of the
Constitution and that it does not constitute a denial of due process or of the equal
protection of the law. Likewise, the constitutionality of paragraph 2 of Sec. 8(a) of R.A.
No. 6132 was upheld. 4

II

Without first considering the validity of its specific provisions, we sustain the
constitutionality of the enactment of R.A. No. 6132 by Congress acting as a legislative
body in the exercise of its broad law-making authority, and not as a Constituent
Assembly, because —

1. Congress, when acting as a Constituent Assembly pursuant to Art. XV of the

Constitution, has full and plenary authority to propose Constitutional amendments or to
call a convention for the purpose, by a three-fourths vote of each House in joint session
assembled but voting separately. Resolutions Nos. 2 and 4 calling for a constitutional
convention were passed by the required three-fourths vote.

2. The grant to Congress as a Constituent Assembly of such plenary authority to call a

constitutional convention includes, by virtue of the doctrine of necessary implication, all
other powers essential to the effective exercise of the principal power granted, such as
the power to fix the qualifications, number, apportionment, and compensation of the
delegates as well as appropriation of funds to meet the expenses for the election of
delegates and for the operation of the Constitutional Convention itself, as well as all other
implementing details indispensable to a fruitful convention. Resolutions Nos. 2 and 4
already embody the above-mentioned details, except the appropriation of funds.

3. While the authority to call a constitutional convention is vested by the present

Constitution solely and exclusively in Congress acting as a Constituent Assembly, the
power to enact the implementing details, which are now contained in Resolutions Nos. 2
and 4 as well as in R.A. No. 6132, does not exclusively pertain to Congress acting as a
Constituent Assembly. Such implementing details are matters within the competence of
Congress in the exercise of its comprehensive legislative power, which power
encompasses all matters not expressly or by necessary implication withdrawn or
removed by the Constitution from the ambit of legislative action. And as lone as such
statutory details do not clash with any specific provision of the constitution, they are valid.

4. Consequently, when Congress, acting as a Constituent Assembly, omits to provide for

such implementing details after calling a constitutional convention, Congress, acting as a
legislative body, can enact the necessary implementing legislation to fill in the gaps,
which authority is expressly recognized in Sec. 8 of Res No. 2 as amended by Res. No.
4.

5. The fact that a bill providing for such implementing details may be vetoed by the
President is no argument against conceding such power in Congress as a legislative
body nor present any difficulty; for it is not irremediable as Congress can override the
Presidential veto or Congress can reconvene as a Constituent Assembly and adopt a
resolution prescribing the required implementing details.

III

Petitioner Raul M. Gonzales asserts that Sec. 2 on the apportionment of delegates is not
in accordance with proportional representation and therefore violates the Constitution
and the intent of the law itself, without pinpointing any specific provision of the
Constitution with which it collides.

Unlike in the apportionment of representative districts, the Constitution does not

expressly or impliedly require such apportionment of delegates to the convention on the
basis of population in each congressional district. Congress, sitting as a Constituent
Assembly, may constitutionally allocate one delegate for, each congressional district or
for each province, for reasons of economy and to avoid having an unwieldy convention. If
the framers of the present Constitution wanted the apportionment of delegates to the
convention to be based on the number of inhabitants in each representative district, they
would have done so in so many words as they did in relation to the apportionment of the
representative districts.
5

The apportionment provided for in Sec. 2 of R.A. No. 6132 cannot possibly conflict with
its own intent expressed therein; for it merely obeyed and implemented the intent of
Congress acting as a Constituent Assembly expressed in Sec. 1 of Res. No. 4, which
provides that the 320 delegates should be apportioned among the existing representative
districts according to the number of their respective inhabitants, but fixing a minimum of
at least two delegates for a representative district. The presumption is that the factual
predicate, the latest available official population census, for such apportionment was
presented to Congress, which, accordingly employed a formula for the necessary
computation to effect the desired proportional representation.

The records of the proceedings on Senate Bill No. 77 sponsored by Senator Pelaez
which is now R.A. No. 6132, submitted to this Tribunal by the amici curiae, show that it
based its apportionment of the delegates on the 1970 official preliminary population
census taken by the Bureau of Census and Statistics from May 6 to June 30, 1976; and
that Congress adopted the formula to effect a reasonable apportionment of delegates.
The Director of the Bureau of Census and Statistics himself, in a letter to Senator Pelaez
dated July 30, 1970, stated that "on the basis of the preliminary count of the population,
we have computed the distribution of delegates to the Constitutional Convention based
on Senate Bill 77 (p. 2 lines 5 to 32 and p. 3 line 12) which is a fair and an equitable
method of distributing the delegates pursuant to the provisions of the joint Resolution of
both Houses No. 2, as amended. Upon your request at the session of the Senate-House
Conference Committee meeting last night, we are submitting herewith the results of the
computation on the basis of the above-stated method."

Even if such latest census were a preliminary census, the same could still be a valid
basis for such apportionment.  The fact that the lone and small congressional district of
6

Batanes, may be over-represented, because it is allotted two delegates by R.A. No. 6132
despite the fact that it has a population very much less than several other congressional
districts, each of which is also allotted only two delegates, and therefore under-
represented, vis-a-vis Batanes alone, does not vitiate the apportionment as not effecting
proportional representation. Absolute proportional apportionment is not required and is
not possible when based on the number of inhabitants, for the population census cannot
be accurate nor complete, dependent as it is on the diligence of the census takers,
aggravated by the constant movement of population, as well as daily death and birth. It is
enough that the basis employed is reasonable and the resulting apportionment is
substantially proportional. Resolution No. 4 fixed a minimum of two delegates for a
congressional district.

While there may be other formulas for a reasonable apportionment considering the
evidence submitted to Congress by the Bureau of Census and Statistics, we are not
prepared to rule that the computation formula adopted by, Congress for proportional
representation as, directed in Res. No. 4 is unreasonable and that the apportionment
provided in R.A. No. 6132 does not constitute a substantially proportional representation.

In the Macias case, relied on by petitioner Gonzales, the apportionment law, which was
nullified as unconstitutional, granted more representatives to a province with less
population than the provinces with more inhabitants. Such is not the case here, where
under Sec. 2 of R.A. No. 6132 Batanes is allotted only two delegates, which number is
equal to the number of delegates accorded other provinces with more population. The
present petitions therefore do not present facts which fit the mould of the doctrine in the
case of Macias et al. vs. Comelec, supra.

The impossibility of absolute proportional representation is recognized by the Constitution

itself when it directs that the apportionment of congressional districts among the various
provinces shall be "as nearly as may be according to their respective inhabitants, but
each province shall have at least one member" (Sec. 5, Art. VI, Phil. Const., emphasis
supplied). The employment of the phrase "as nearly as may be according to their
respective inhabitants" emphasizes the fact that the human mind can only approximate a
reasonable apportionment but cannot effect an absolutely proportional representation
with mathematical precision or exactitude.

IV

Sec. 5 of R.A. 6132 is attacked on the ground that it is an undue deprivation of liberty
without due process of law and denies the equal protection of the laws. Said Sec. 5
disqualifies any elected delegate from running "for any public office in any election" or
from assuming "any appointive office or position in any branch of the government
government until after the final adjournment of the Constitutional Convention."
That the citizen does not have any inherent nor natural right to a public office, is
axiomatic under our constitutional system. The State through its Constitution or
legislative body, can create an office and define the qualifications and disqualifications
therefor as well as impose inhibitions on a public officer. Consequently, only those with
qualifications and who do not fall under any constitutional or statutory inhibition can be
validly elected or appointed to a public office. The obvious reason for the questioned
inhibition, is to immunize the delegates from the perverting influence of self-interest, party
interest or vested interest and to insure that he dedicates all his time to performing solely
in the interest of the nation his high and well nigh sacred function of formulating the
supreme law of the land, which may endure for generations and which cannot easily be
changed like an ordinary statute. With the disqualification embodied in Sec. 5, the
delegate will not utilize his position as a bargaining leverage for concessions in the form
of an elective or appointive office as long as the convention has not finally adjourned.
The appointing authority may, by his appointing power, entice votes for his own
proposals. Not love for self, but love for country must always motivate his actuations as
delegate; otherwise the several provisions of the new Constitution may only satisfy
individual or special interests, subversive of the welfare of the general citizenry. It should
be stressed that the disqualification is not permanent but only temporary only to continue
until the final adjournment of the convention which may not extend beyond one year. The
convention that framed the present Constitution finished its task in approximately seven
months — from July 30, 1934 to February 8, 1935.

As admitted by petitioner Gonzales, this inhibition finds analogy in the constitutional

provision prohibiting a member of Congress, during the time for which he was elected,
from being appointed to any civil office which may have been created or the emolument
whereof shall have been increased while he was a member of the Congress. (Sec. 16,
Art. VI, Phil. Constitution.)

As observed by the Solicitor General in his Answer, the overriding objective of the
challenged disqualification, temporary in nature, is to compel the elected delegates to
serve in full their term as such and to devote all their time to the convention, pursuant to
their representation and commitment to the people; otherwise, his seat in the convention
will be vacant and his constituents will be deprived of a voice in the convention. The
inhibition is likewise "designed to prevent popular political figures from controlling
elections or positions. Also it is a brake on the appointing power, to curtail the latter's
desire to 'raid' the convention of "talents" or attempt to control the convention." (p. 10,
Answer in L-32443.)

Thus the challenged disqualification prescribed in Sec. 5 of R.A. No. 6132 is a valid
limitation on the right to public office pursuant to state police power as it is reasonable
and not arbitrary.

The discrimination under Sec. 5 against delegates to the Constitutional Convention is

likewise constitutional; for it is based on a substantial distinction which makes for real
differences, is germane to the purposes of the law, and applies to all members of the
same class.  The function of a delegate is more far-reaching and its effect more enduring
7

than that of any ordinary legislator or any other public officer. A delegate shapes the
fundamental law of the land which delineates the essential nature of the government, its
basic organization and powers, defines the liberties of the people, and controls all other
laws. Unlike ordinary statutes, constitutional amendments cannot be changed in one or
two years. No other public officer possesses such a power, not even the members of
Congress unless they themselves, propose constitutional amendments when acting as a
Constituent Assembly pursuant to Art. XV of the Constitution. The classification,
therefore, is neither whimsical nor repugnant to the sense of justice of the community.
As heretofore intimated, the inhibition is relevant to the object of the law, which is to
insure that the proposed amendments are meaningful to the masses of our people and
not designed for the enhancement of selfishness, greed, corruption, or injustice.

Lastly, the disqualification applies to all the delegates to the convention who will be
elected on the second Tuesday of November, 1970.

Paragraph 1, Sec. 8(a) of R.A. No. 6132 is impugned by both petitioners as violative of
the constitutional guarantees of due process, equal protection of the laws, freedom of
expressions, freedom of assembly and freedom of association.

This Court ruled last year that the guarantees of due process, equal protection of the
laws, peaceful assembly, free expression, and the right of association are neither
absolute nor illimitable rights; they are always subject to the pervasive and dormant
police power of the State and may be lawfully abridged to serve appropriate and
important public interests. 8

In said Gonzalez vs. Comelec case the Court applied the clear and present danger test
to determine whether a statute which trenches upon the aforesaid Constitutional
guarantees, is a legitimate exercise of police power. 9

Paragraph 1 of Sec. 8(a), R.A. No. 6132 prohibits:

1. any candidate for delegate to the convention

(a) from representing, or

(b) allowing himself to be represented as being a candidate of any political party or any
other organization; and

2. any political party, political group, political committee, civic, religious, professional or
other organizations or organized group of whatever nature from

(a) intervening in the nomination of any such candidate or in the filing of his certificate, or

(b) from giving aid or support directly or indirectly, material or otherwise, favorable to or
against his campaign for election.

The ban against all political parties or organized groups of whatever nature contained in
par. 1 of Sec. 8(a), is confined to party or organization support or assistance, whether
material, moral, emotional or otherwise. The very Sec. 8(a) in its provisos permits the
candidate to utilize in his campaign the help of the members of his family within the fourth
civil degree of consanguinity or affinity, and a campaign staff composed of not more than
one for every ten precincts in his district. It allows the full exercise of his freedom of
expression and his right to peaceful assembly, because he cannot be denied any permit
to hold a public meeting on the pretext that the provision of said section may or will be
violated. The right of a member of any political party or association to support him or
oppose his opponent is preserved as long as such member acts individually. The very
party or organization to which he may belong or which may be in sympathy with his
cause or program of reforms, is guaranteed the right to disseminate information about, or
to arouse public interest in, or to advocate for constitutional reforms, programs, policies
or constitutional proposals for amendments.
It is therefore patent that the restriction contained in Sec. 8(a) is so narrow that the basic
constitutional rights themselves remain substantially intact and inviolate. And it is
therefore a valid infringement of the aforesaid constitutional guarantees invoked by
petitioners.

In the aforesaid case of Gonzales vs. Comelec, supra, this Court unanimously sustained
the validity of the limitation on the period for nomination of candidates in Sec. 50-A of
R.A. No. 4880, thus:

The prohibition of too early nomination of candidates presents a question that is not too
formidable in character. According to the act: "It shall be unlawful for any political party,
political committee, or political group to nominate candidates for any elective public office
voted for at large earlier than one hundred and fifty days immediately preceding an
election, and for any other elective public office earlier than ninety days immediately
preceding an election.

The right of association is affected. Political parties have less freedom as to the time
during which they may nominate candidates; the curtailment is not such, however, as to
render meaningless such a basic right. Their scope of legitimate activities, save this one,
is not unduly narrowed. Neither is there infringement of their freedom to assemble. They
can do so, but not for such a purpose. We sustain its validity. We do so unanimously.  10

In said Gonzales vs. Comelec case, this Court likewise held that the period for the
conduct of an election campaign or partisan political activity may be limited without
offending the aforementioned constitutional guarantees as the same is designed also to
prevent a "clear and present danger of a substantive evil, the debasement of the
electoral process." 11

Even if the partisan activity consists of (a) forming organizations, associations, clubs,
committees or other group of persons for the purpose of soliciting votes and/or
undertaking any campaign or propaganda for or against a party or candidate; (b) holding
political conventions, caucuses, conferences, meetings, rallies, parades or other similar
assemblies for the purpose of soliciting votes and/or undertaking any campaign or
propaganda for or against any candidate or party; and (c) giving, soliciting, or receiving
contributions for election campaign either directly or indirectly, (Sec. 50-B, pars. (a), (b),
and (c), R.A. 4880), the abridgment was still affirmed as constitutional by six members of
this Court, which could not "ignore ... the legislative declaration that its enactment was in
response to a serious substantive evil affecting the electoral process, not merely in
danger of happening, but actually in existence, and likely to continue unless curbed or
remedied. To assert otherwise would be to close one's eyes to the reality of the
situation."  ;
12

Likewise, because four members dissented, this Court in said case of Gonzales vs.
Comelec, supra, failed to muster the required eight votes to declare as unconstitutional
the limitation on the period for (a) making speeches, announcements or commentaries or
holding interviews for or against the election of any party or candidate for public office; (b)
publishing or distributing campaign literature or materials; and (e) directly or indirectly
soliciting votes and/or undertaking any campaign or propaganda for or against any
candidate or party specified in Sec. 50-B, pars. (c), (d) & (e) of R.A. 4880. 13

The debasement of the electoral process as a substantive evil exists today and is one of
the major compelling interests that moved Congress into prescribing the total ban
contained in par. 1 of Sec. 8(a) of R.A. No. 6132, to justify such ban. In the
said Gonzales vs. Comelec case, this Court gave "due recognition to the legislative
concern to cleanse, and if possible, render spotless, the electoral process,"   impressed
14

as it was by the explanation made by the author of R.A. No. 4880, Sen. Lorenzo Tañada,
who appeared as amicus curiae, "that such provisions were deemed by the legislative
body to be part and parcel of the necessary and appropriate response not merely to a
clear and present danger but to the actual existence of a grave and substantive evil of
excessive partisanship, dishonesty and corruption as well as violence that of late has
marred election campaigns and partisan political activities in this country. He did invite
our attention likewise to the well-settled doctrine that in the choice of remedies for an
admitted malady requiring governmental action, on the legislature primarily rests the
responsibility. Nor should the cure prescribed by it, unless clearly repugnant to
fundamental rights, be ignored or disregarded."  15

But aside from the clear and imminent danger of the debasement of the electoral
process, as conceded by Senator Pelaez, the basic motivation, according to Senate
Majority Floor Leader Senator Arturo Tolentino, the sponsor of the Puyat-Tolentino
amendment embodied in par. 1 of Sec. 8(a) of R.A. No. 6132, is to assure the candidates
equal protection of the laws by according them equality of chances.   The primary
16

purpose of the prohibition then is also to avert the clear and present danger of another
substantive evil, the denial of the equal protection of the laws. The candidates must
depend on their individual merits and not on the support of political parties or
organizations. Senator Tolentino and Senator Salonga emphasized that under this
provision, the poor candidate has an even chance as against the rich candidate. We are
not prepared to disagree with them, because such a conclusion, predicated as it is on
empirical logic, finds support in our recent political history and experience. Both Senators
stressed that the independent candidate who wins in the election against a candidate of
the major political parties, is a rare phenomenon in this country and the victory of an
independent candidate mainly rests on his ability to match the resources, financial and
otherwise, of the political parties or organizations supporting his opponent. This position
is further strengthened by the principle that the guarantee of social justice under Sec. V,
Art. II of the Constitution, includes the guarantee of equal opportunity, equality of political
rights, and equality before the law enunciated by Mr. Justice Tuazon in the case Guido
vs. Rural Progress Administration.  17

While it may be true that a party's support of a candidate is not wrong per se it is equally
true that Congress in the exercise of its broad law-making authority can declare certain
acts as mala prohibita when justified by the exigencies of the times. One such act is the
party or organization support proscribed in Sec. 8(a),which ban is a valid limitation on the
freedom of association as well as expression, for the reasons aforestated.

Senator Tolentino emphasized that "equality of chances may be better attained by

banning all organization support."  18

The questioned par. 1 of Sec. 8 (a) likewise can easily pass the balancing-of-interest
test. 
19

In the apt words of the Solicitor General:

It is to be noted that right now the nation is on the threshold of rewriting its Constitution in
a hopeful endeavor to find a solution to the grave economic, social and political problems
besetting the country. Instead of directly proposing the amendments Congress has
chosen to call a Constitutional Convention which shall have the task of fashioning a
document that shall embody the aspirations and ideals of the people. Because what is to
be amended is the fundamental law of the land, it is indispensable that the Constitutional
Convention be composed of delegates truly representative of the people's will. Public
welfare demands that the delegates should speak for the entire nation, and their voices
be not those of a particular segment of the citizenry, or of a particular class or group of
people, be they religious, political, civic or professional in character. Senator Pelaez,
Chairman of the Senate Committee on Codes and Constitutional Amendments,
eloquently stated that "the function of a constitution is not to represent anyone in interest
or set of interests, not to favor one group at the expense or disadvantage of the
candidates — but to encompass all the interests that exist within our society and to blend
them into one harmonious and balanced whole. For the constitutional system means, not
the predominance of interests, but the harmonious balancing thereof."

So that the purpose for calling the Constitutional Convention will not be deflated or
frustrated, it is necessary that the delegatee thereto be independent, beholden to no one
but to God, country and conscience.

xxx xxx xxx

The evil therefore, which the law seeks to prevent lies in the election of delegates who,
because they have been chosen with the aid and resources of organizations, cannot be
expected to be sufficiently representative of the people. Such delegates could very well
be the spokesmen of narrow political, religious or economic interest and not of the great
majority of the people. 
20

We likewise concur with the Solicitor General that the equal protection of the laws is not
unduly subverted in par. I of Sec. 8(a); because it does not create any hostile
discrimination against any party or group nor does it confer undue favor or privilege on an
individual as heretofore stated. The discrimination applies to all organizations, whether
political parties or social, civic, religious, or professional associations. The ban is
germane to the objectives of the law, which are to avert the debasement of the electoral
process, and to attain real equality of chances among individual candidates and thereby
make real the guarantee of equal protection of the laws.

The political parties and the other organized groups have built-in advantages because of
their machinery and other facilities, which, the individual candidate who is without any
organization support, does not have. The fact that the other civic of religious
organizations cannot have a campaign machinery as efficient as that of a political party,
does not vary the situation; because it still has that much built-in advantage as against
the individual candidate without similar support. Moreover, these civic religious and
professional organization may band together to support common candidates, who
advocates the reforms that these organizations champion and believe are imperative.
This is admitted by petitioner Gonzales thru the letter of Senator Ganzon dated August
17, 1970 attached to his petition as Annex "D", wherein the Senator stated that his own
"Timawa" group had agreed with the Liberal Party in Iloilo to support petitioner Gonzales
and two others as their candidates for the convention, which organized support is nullified
by the questioned ban, Senator Ganzon stressed that "without the group moving and
working in joint collective effort" they cannot "exercise effective control and supervision
over our
leaders — the Women's League, the area commanders, etc."; but with their joining with
the LP's they "could have presented a solid front with very bright chances of capturing all
seats."

The civic associations other than political parties cannot with reason insist that they
should be exempted from the ban; because then by such exemption they would be free
to utilize the facilities of the campaign machineries which they are denying to the political
parties. Whenever all organization engages in a political activity, as in this campaign for
election of delegates to the Constitutional Convention, to that extent it partakes of the
nature of a political organization. This, despite the fact that the Constitution and by laws
of such civic, religious, or professional associations usually prohibit the association from
engaging in partisan political activity or supporting any candidate for an elective office.
Hence, they must likewise respect the ban.
The freedom of association also implies the liberty not to associate or join with others or
join any existing organization. A person may run independently on his own merits without
need of catering to a political party or any other association for support. And he, as much
as the candidate whose candidacy does not evoke sympathy from any political party or
organized group, must be afforded equal chances. As emphasized by Senators Tolentino
and Salonga, this ban is to assure equal chances to a candidate with talent and imbued
with patriotism as well as nobility of purpose, so that the country can utilize their services
if elected.

Impressed as We are by the eloquent and masterly exposition of Senator Tañada for the
invalidation of par. 1 of Sec. 8(a) of R.A. No. 6132, demonstrating once again his deep
concern for the preservation of our civil liberties enshrined in the Bill of Rights, We are
not persuaded to entertain the belief that the challenged ban transcends the limits of
constitutional invasion of such cherished immunities.

WHEREFORE, the prayers in both petitions are hereby denied and R.A. No. 6132
including Secs. 2, 4, 5, and 8(a), paragraph 1, thereof, cannot be declared
unconstitutional. Without costs.

Reyes, J.B.L., Dizon and Castro, JJ., concur.

Makalintal, J., concurs in the result.

Teehankee, J., is on leave.

Separate Opinions

FERNANDO, J., concurring and dissenting:

The opinion of Justice Makasiar speaking for the Court, comprehensive in scope,
persuasive in character and lucid in expression, has much to recommend it. On the
whole, I concur. I find difficulty, however, in accepting the conclusion that there is no
basis for the challenge hurled against the validity of this provision: "No candidate for
delegate to the Convention shall represent or allow himself to be represented as being a
candidate of any political party or any other organization, and no political party, political
group, political committee, civic, religious, professional, or other organization or
organized group of whatever nature shall intervene in the nomination of any such
candidate or in the filing of his certificate of candidacy or give aid or support directly or
indirectly, material or otherwise, favorable to or against his campaign for election: ..."  It is
1

with regret then that I dissent from that portion of the decision.

1. I find it difficult to reconcile the decision reached insofar as the aforesaid ban on
political parties and civic, professional and other organizations is concerned with the
explicit provision that the freedom to form associations or societies for purposes not
contrary to law shall not be abridged.  The right of an individual to join others of a like
2

persuasion to pursue common objectives and to engage in activities is embraced within if

not actually encouraged by the regime of liberty ordained by the Constitution. This
particular freedom has an indigenous cast, its origin being traceable to the Malolos
Constitution.

In the United States, in the absence of an explicit provision of such character, it is the
view of Justice Douglas, in a 1963 article, that it is primarily the First Amendment of her
Constitution, which safeguards freedom of speech and of the press, of assembly and of
petition "that provides [associations] with the protection they need if they are to remain
viable and continue to contribute to our Free Society."  Such is indeed the case, for five
3

years earlier the American Supreme Court had already declared: "It is beyond debate
that freedom to engage in association for the advancement of beliefs and ideas is an
inseparable aspect of the "liberty" [embraced in] freedom of speech." 4

Not long after, in 1965, Justice Douglas as; spokesman for the American Supreme Court
could elaborate further on the scope of the right of association as including "the right to
express one's attitudes or philosophies by membership in a group or by affiliation with it
or by other lawful means, Association in that context is a form of expression of opinion;
and while it is not extremely included in the First Amendment its existence is necessary
in making the express guarantees fully meaningful."  Thus is further vitalized freedom of
5

expression which, for Justice Laurel, is at once the instrument" and the guarantee and
the bright consummate flower of all liberty"  and, for Justice Cardozo, "the matrix, the
6

indispensable condition of nearly every other form of freedom." 7

2. It is in the light of the above fundamental postulates that I find merit in the plea of
petitioners to annul the challenged provision. There is much to be said for the point
emphatically stressed by Senator Lorenzo M. Tañada, as amicus curiae, to the effect that
there is nothing unlawful in a candidate for delegate to the Convention representing or
allowing himself to be represented as such of any political party or any other organization
as well as of such political party, political group, political committee, civic, religious,
professional or other organization or organized group intervening in his nomination, in the
filing of his certificate of candidacy, or giving aid or support, directly or indirectly, material
or otherwise, favorable to or against his campaign for election as such delegate. I find the
conclusion inescapabe therefore, that what the constitutional provisions in question allow,
more specifically the right to form associations, is prohibited. The infirmity of the ban is
thus apparent on its face.

There is, to my mind, another avenue of approach that leads to the same conclusion. The
final proviso in the same section of the Act forbids any construction that would in any
wise "impair or abridge the freedom of civic, political, religious, professional, trade
organizations or organized groups of whatever nature to disseminate information about,
or arouse public interest in, the forthcoming Constitutional Convention, or to advocate
constitutional reforms, programs, policies or proposals for amendment of the present
Constitution, and no prohibition contained herein shall limit or curtail the right of their
members, as long as they act individually, to support or oppose any candidate for
delegate to the Constitutional Convention."  It is regrettable that such an explicit
8

recognition of what cannot be forbidden consistently with the constitutional guarantees of

freedom of expression and freedom of association falls short of according full respect to
what is thus commanded, by the fundamental law, as they are precluded by the very
same Act from giving aid or support precisely to the very individuals who can carry out
whatever constitutional reforms, programs, policies or proposals for amendment they
might advocate. As thus viewed, the conviction I entertain as to its lack of validity is
further strengthened and fortified.

3. It would be a different matter, of course, if there is a clear and present danger of a

substantive evil that would justify a limitation on such cherished freedoms. Reference has
been made to Gonzales v. Commission on Elections.  As repression is permissible only
9

when the danger of substantive evil is present is explained by Justice Branders thus: ...
the evil apprehended is to imminent that it may befall before there is opportunity for full
discussion. If there be time to expose through discussion the falsehood and fallacies, to
avert the evil by the processes of education, the remedy to be applied is more speech,
not enforced silence. For him the apprehended evil must be "relatively serious." For
"[prohibition] of free speech and assembly is a measure so stringent that it would be
inappropriate as the means for averting a relatively trivial harm to society." Justice Black
would go further. He would require that the substantive evil be "extremely serious." Only
thus may there be a realization of the ideal envisioned by Cardozo: "There shall be no
compromise of the freedom to think one's thoughts and speak them, except at those
extreme borders where thought merges into action." It received its original formulation
from Holmes. Thus: "The question in every case is whether the words used in such
circumstances are of such a nature as to create a clear and present danger that they will
bring about the substantive evils that Congress has a right to prevent. It is a question of
proximity and degree." "   The majority of the Court would find the existence of a clear
10

and present danger of debasing the electoral process. With due respect, I find myself
unable to share such a view.

The assumption would, appear to be that there is a clear and present danger of a grave
substantive evil of partisanship running riot unless political parties are thus restrained.
There would be a sacrifice then of the national interest involved. The Convention might
not be able to live up to the high hopes entertained for an improvement of the
fundamental law. It would appear though that what prompted such a ban is to assure that
the present majority party would not continue to play its dominant role in the political life
of the nation. The thought is entertained that otherwise, we will not have a Convention
truly responsive to the needs of the hour and of the future insofar as they may be
anticipated.

To my mind, this is to lose sight of the fact that in the national elections of 1946, 1953,
1961 and 1965, the presidency was won by the opposition candidate. Moreover, in
national elections for senators alone, that of 1951, to mention only one instance, saw a
complete sweep of the field by the then minority party. It would be unjustifiable, so I am
led to believe to assume that inevitably the prevailing dominant political party would
continue its ascendancy in the coming Convention.

Then, too, the result of the plebiscite in the two proposed amendments in 1967 indicate
unmistakably that the people can, if so minded, make their wishes prevail. There is thus
no assurance that the mere identification with party labels would automatically insure the
success of a candidacy. Even if it be assumed that to guard against the evils of party
spirit carried to excess, such a ban is called for, still no such danger is presented by
allowing civil, professional or any other organization or organized group of whatever
nature to field its own candidates or give aid or support, directly or indirectly material or
otherwise, to anyone running for the Convention. From such a source, no such
misgivings or apprehension need arise. Nor it the fear that organizations could hastily be
assembled or put up to camouflage their true colors as satellites of the political parties be
valid. The electorate can see through such schemes and can emphatically register its
reaction. There is, moreover, the further safeguard that whatever work the Convention
may propose is ultimately subject to popular ratification.

For me then the danger of a substantive evil is neither clear nor present. What causes
me grave concern is that to guard against such undesirable eventuality, which may not
even come to pass, a flagrant disregard of what the Constitution ordains is minimized. A
desirable end cannot be coerced by unconstitutional means.

4. It is not easy to yield assent to the proposition that on a matter so essentially political
as the amendment or revision of an existing Constitution, political parties or political
groups are to be denied the opportunity of launching the candidacy of their choice. Well
has it been said by Chief Justice Hughes: "The greater the importance of safeguarding
the community from incitements to the overthrow of our institutions by force and violence,
the more imperative is the need to preserve inviolate the constitutional rights of free
speech, free press and free assembly in order to maintain the opportunity for free political
discussion, to the end that government may be responsive to the will of the people and
that changes, if desired, may be obtained by peaceful means. Therein lies the security of
the Republic, the very foundation of constitutional government."   It is to carry this
11

essential process one step farther to recognize and to implement the right of every
political party or group to select the candidates who, by their election, could translate into
actuality their hopes for the fundamental law that the times demand. Moreover, is it not in
keeping with the rights to intellectual freedom so sedulously safeguarded by the
Constitution to remove all obstacles to organized civic groups making their influence felt
in the task of constitution framing, the result of which has momentuous implications for
the nation? What is decisive of this aspect of the matter is not the character of the
association or organized group as such but the essentially political activity thus carried
out.

This is not to deny the wide latitude as to the choice of means vested in Congress to
attain a desirable goal. Nor can it be successfully argued that the judiciary should display
reluctance in extending sympathy and understanding to such legislative determination.
This is merely to stress that however worthwhile the objective, the Constitution must still
be paid deference. Moreover, it may not be altogether unrealistic to consider the practical
effects of the ban as thus worded as not lacking in effectivity insofar as civic, religious,
professional or other organizations or organized group is concerned, but not necessarily
so in the case of political party, political group or political committee. There is the
commendable admission by Senator Tolentino, appearing as amicus curiae, that the
political leaders of stature, in their individual capacity, could continue to assert their
influence. It could very well happen, then, in not a few cases, assuming the strength of
political parties, that a candidate thus favored is sure of emerging the victor. What is thus
sought to be accomplished to guard against the evil of party spirit prevailing could very
well be doomed to futility. The high hopes entertained by the articulate and vocal groups
of young people, intellectuals and workers, may not be realized. The result would be that
this unorthodox and novel provision could assume the character of a tease, an illusion
like a munificent bequest in a pauper's will.

If such an appraisal is not unjustifiably tinged with pessimism, then, to my mind, a radical
approach to a problem possibly tainted with constitutional infirmity cannot hurdle the
judicial test as to its validity. It is one thing to encourage a fresh and untried solution to a
problem of gravity when the probability of its success may be assumed. It is an entirely
different matter to cut down the exercise of what otherwise are undeniable constitutional
rights, when as in this case, the outcome might belie expectations. Considering the well-
settled principle that even though the governmental process be legitimate and
substantial, they cannot be pursued by means that broadly stifle fundamental personal
liberties, if the end can be narrowly achieved, I am far from being persuaded that to
preclude political parties or other groups or associations from lending aid and support to
the candidates of men in whom they can repose their trust is consistent with the
constitutional rights of freedom of association and freedom of expression. Here, the
danger of overbreadth, so clear and manifest as to be offensive to constitutional
standards, magnified by the probability that the result would be the failure and not
success of the statutory scheme, cautions against the affixing of the imprimatur of judicial
approval to the challenged provision.

5. Necessarily then, from this mode of viewing the matter, it would follow that the holding
of this Court in Gonzales v. Comelec   does not compel the conclusion reached by the
12

majority sustaining the validity of this challenged provision. What survived the test of
constitutional validity in that case, with the Court unanimous in its opinion, is the
prohibition for any political party, political committee or political group to nominate
candidates for any elective public office voted for at large earlier than 150 days
immediately preceding election and for any other public office earlier than 90 days
immediately preceding such election.   A corollary to the above limitation, the provision
13

making it unlawful for any person, whether or not a voter or candidate, or for any group or
association of persons, whether or not a political party or political committee, to engage
in an election campaign or partisan political activity except during the above periods
successfully hurdled, the constitutional test, although the restrictions as to the making of
speeches, announcements or commentaries or holding interviews for or against the
election of any party or candidate for public office or the publishing or distributing of
campaign literature or materials or the solicitation or undertaking any campaign or
propaganda for or against any candidate or party, directly or indirectly, survived by the
narrow margin of one vote, four members of this Court unable to discern any
constitutional infirmity as against the free speech guarantee, thus resulting in failing to
muster the necessary two-thirds majority for a declaration of invalidity. Insofar as election
campaign or partisan political activity would limit or restrict the formation, of
organizations, associations, clubs, committees or other groups of persons for the
purpose of soliciting votes or undertaking any campaign or propaganda for or against a
party or candidate or, the giving, soliciting, or receiving a contribution for election
campaign purposes, either directly or indirectly as well as the holding of political
conventions, caucuses, conferences, meetings, rallies, parades or other similar
assemblies, with a similar and in view, only five members of this Court, a minority thereof
voted, for their unconstitutionality. What emerges clearly, then, is that definite acts short
of preventing the political parties from the choice of their candidates and thereafter
working for them in effect were considered by this Court as not violative of the
constitutional freedoms of speech, of press, of assembly and of association.

The challenged provision in these two petitions, however, goes much farther. Political
parties or any other organization or organized group are precluded from selecting and
supporting candidates for delegates to the Constitutional Convention. To my mind, this is
to enter a forbidden domain, Congress trespassing on a field hitherto rightfully assumed
to be within the sphere of liberty. Thus, I am unable to conclude that our previous
decision in Gonzales v. Commission on Elections which already was indicative of the
cautious and hesitant judicial approach to lending its approval to what otherwise are
invasions of vital constitutional safeguards to freedoms of belief, of expression, and of
association lends support to the decision reached by the majority insofar as this
challenged provision is concerned.

Hence my inability to subscribe in its entirety to the opinion of the Court. I am authorized
to state that the Chief Justice is in agreement with the views herein expressed.

Concepcion, C.J., Villamor and Zaldivar, JJ., concur.

BARREDO, J., concurring and dissenting:

Without prejudice to a more extended opinion, I vote, in concurrence with the majority, to
sustain the validity of the provisions of Republic Act 6132 impugned by petitioners in
these cases, except Section 4 and the portion of Section 8(a) referring to political parties.
As regards Section 4, I reiterate my separate opinion in the cases of Subido and others.
(G.R. Nos. L-32436 and L-32439) With respect to Section 8(a), I hold that the
considerations which take the restraint on the freedoms of association, assembly and
speech involved in the ban on political parties to nominate and support their own
candidates, reasonable and within the limits of the Constitution do not obtain when it
comes to civic or non-political organizations. As I see it, the said ban, insofar as civic or
non-political organizations are concerned, is a deceptive device to preserve the built-in
advantages of political parties while at the same time crippling completely the other kinds
of associations. The only way to accomplish the purported objective of the law of
equalizing the forces that will campaign in behalf of the candidates to the constitutional
convention is to maintain said ban only as against political parties, for after all, only the
activities and manners of operation of these parties and/or some of their members have
made necessary the imposition thereof. Under the resulting set up embodied in the
provision in question, the individual candidates who have never had any political party
connections or very little of it would be at an obvious disadvantage unless they are
allowed to seek and use the aid of civic organizations. Neither the elaborate provisions of
Republic Act 6132 regarding methods of campaign nor its other provisions intended to
minimize the participation of political parties in the electorate processes of voting,
counting of the votes and canvassing of the results can overcome the advantages of
candidates more or less connected with political parties, particularly the major and
established ones, as long as the right to form other associations and the right of these
associations to campaign for their candidates are denied considering particularly the
shortness of the time that is left between now and election day.

The issues involved in the coming elections are grave and fundamental ones that are
bound to affect the lives, rights and liberties of all the people of this country most
effectively, pervasively and permanently. The only insurance of the people against
political parties which may be inclined towards the Establishment and the status quo is to
organize themselves to gain much needed strength and effectivity. To deny them this
right is to stifle the people's only opportunity for change.

It is axiomatic that issues, no matter how valid, if not related to particular candidates in an
organized way, similarly as in the use of platforms by political parties, cannot have any
chance of support and final adoption. Both men and issues are important, but unrelated
to each other, each of them alone is insignificant, and the only way to relate them is by
organization. Precisely because the issues in this election of candidates are of
paramount importance second to none, it is imperative that all of the freedoms enshrined
in the constitution should have the ampliest recognition for those who are minded to
actively battle for them and any attempt to curtail them would endanger the very
purposes for which a new constitutional convention has been conceived.

Consistently with my separate opinion in the case of Gonzales and Cabigao vs. Comelec,
G.R. No. L-27833, April 18, 1969 and for the reasons therein stated, I maintain that the
right of suffrage which is the cornerstone of any democracy like ours is meaningless
when the right to campaign in any election therein is unreasonably and unnecessarily
curtailed, restrained or hampered, as is being done under the statute in dispute.

It is, of course, understood that this opinion is based on my considered view, contrary to
that of the majority, that as Section 8(a) stands and taking into account its genesis, the
ban against political parties is separable from that against other associations within the
contemplation of Section 21 of the Act which expressly refers to the separability of the
application thereof to any "persons, groups or circumstances."

I reserve my right to expand this explanation of my vote in the next few days.

# Separate Opinions

FERNANDO, J., concurring and dissenting:

The opinion of Justice Makasiar speaking for the Court, comprehensive in scope,
persuasive in character and lucid in expression, has much to recommend it. On the
whole, I concur. I find difficulty, however, in accepting the conclusion that there is no
basis for the challenge hurled against the validity of this provision: "No candidate for
delegate to the Convention shall represent or allow himself to be represented as being a
candidate of any political party or any other organization, and no political party, political
group, political committee, civic, religious, professional, or other organization or
organized group of whatever nature shall intervene in the nomination of any such
candidate or in the filing of his certificate of candidacy or give aid or support directly or
indirectly, material or otherwise, favorable to or against his campaign for election: ..."  It is
1

with regret then that I dissent from that portion of the decision.

1. I find it difficult to reconcile the decision reached insofar as the aforesaid ban on
political parties and civic, professional and other organizations is concerned with the
explicit provision that the freedom to form associations or societies for purposes not
contrary to law shall not be abridged.  The right of an individual to join others of a like
2

persuasion to pursue common objectives and to engage in activities is embraced within if

not actually encouraged by the regime of liberty ordained by the Constitution. This
particular freedom has an indigenous cast, its origin being traceable to the Malolos
Constitution.

In the United States, in the absence of an explicit provision of such character, it is the
view of Justice Douglas, in a 1963 article, that it is primarily the First Amendment of her
Constitution, which safeguards freedom of speech and of the press, of assembly and of
petition "that provides [associations] with the protection they need if they are to remain
viable and continue to contribute to our Free Society."  Such is indeed the case, for five
3

years earlier the American Supreme Court had already declared: "It is beyond debate
that freedom to engage in association for the advancement of beliefs and ideas is an
inseparable aspect of the "liberty" [embraced in] freedom of speech." 4

Not long after, in 1965, Justice Douglas as; spokesman for the American Supreme Court
could elaborate further on the scope of the right of association as including "the right to
express one's attitudes or philosophies by membership in a group or by affiliation with it
or by other lawful means, Association in that context is a form of expression of opinion;
and while it is not extremely included in the First Amendment its existence is necessary
in making the express guarantees fully meaningful."  Thus is further vitalized freedom of
5

expression which, for Justice Laurel, is at once the instrument" and the guarantee and
the bright consummate flower of all liberty"  and, for Justice Cardozo, "the matrix, the
6

indispensable condition of nearly every other form of freedom." 7

2. It is in the light of the above fundamental postulates that I find merit in the plea of
petitioners to annul the challenged provision. There is much to be said for the point
emphatically stressed by Senator Lorenzo M. Tañada, as amicus curiae, to the effect that
there is nothing unlawful in a candidate for delegate to the Convention representing or
allowing himself to be represented as such of any political party or any other organization
as well as of such political party, political group, political committee, civic, religious,
professional or other organization or organized group intervening in his nomination, in the
filing of his certificate of candidacy, or giving aid or support, directly or indirectly, material
or otherwise, favorable to or against his campaign for election as such delegate. I find the
conclusion inescapabe therefore, that what the constitutional provisions in question allow,
more specifically the right to form associations, is prohibited. The infirmity of the ban is
thus apparent on its face.

There is, to my mind, another avenue of approach that leads to the same conclusion. The
final proviso in the same section of the Act forbids any construction that would in any
wise "impair or abridge the freedom of civic, political, religious, professional, trade
organizations or organized groups of whatever nature to disseminate information about,
or arouse public interest in, the forthcoming Constitutional Convention, or to advocate
constitutional reforms, programs, policies or proposals for amendment of the present
Constitution, and no prohibition contained herein shall limit or curtail the right of their
members, as long as they act individually, to support or oppose any candidate for
delegate to the Constitutional Convention."  It is regrettable that such an explicit
8

recognition of what cannot be forbidden consistently with the constitutional guarantees of

freedom of expression and freedom of association falls short of according full respect to
what is thus commanded, by the fundamental law, as they are precluded by the very
same Act from giving aid or support precisely to the very individuals who can carry out
whatever constitutional reforms, programs, policies or proposals for amendment they
might advocate. As thus viewed, the conviction I entertain as to its lack of validity is
further strengthened and fortified.

3. It would be a different matter, of course, if there is a clear and present danger of a

substantive evil that would justify a limitation on such cherished freedoms. Reference has
been made to Gonzales v. Commission on Elections.  As repression is permissible only
9

when the danger of substantive evil is present is explained by Justice Branders thus: ...
the evil apprehended is to imminent that it may befall before there is opportunity for full
discussion. If there be time to expose through discussion the falsehood and fallacies, to
avert the evil by the processes of education, the remedy to be applied is more speech,
not enforced silence. For him the apprehended evil must be "relatively serious." For
"[prohibition] of free speech and assembly is a measure so stringent that it would be
inappropriate as the means for averting a relatively trivial harm to society." Justice Black
would go further. He would require that the substantive evil be "extremely serious." Only
thus may there be a realization of the ideal envisioned by Cardozo: "There shall be no
compromise of the freedom to think one's thoughts and speak them, except at those
extreme borders where thought merges into action." It received its original formulation
from Holmes. Thus: "The question in every case is whether the words used in such
circumstances are of such a nature as to create a clear and present danger that they will
bring about the substantive evils that Congress has a right to prevent. It is a question of
proximity and degree." "   The majority of the Court would find the existence of a clear
10

and present danger of debasing the electoral process. With due respect, I find myself
unable to share such a view.

The assumption would, appear to be that there is a clear and present danger of a grave
substantive evil of partisanship running riot unless political parties are thus restrained.
There would be a sacrifice then of the national interest involved. The Convention might
not be able to live up to the high hopes entertained for an improvement of the
fundamental law. It would appear though that what prompted such a ban is to assure that
the present majority party would not continue to play its dominant role in the political life
of the nation. The thought is entertained that otherwise, we will not have a Convention
truly responsive to the needs of the hour and of the future insofar as they may be
anticipated.

To my mind, this is to lose sight of the fact that in the national elections of 1946, 1953,
1961 and 1965, the presidency was won by the opposition candidate. Moreover, in
national elections for senators alone, that of 1951, to mention only one instance, saw a
complete sweep of the field by the then minority party. It would be unjustifiable, so I am
led to believe to assume that inevitably the prevailing dominant political party would
continue its ascendancy in the coming Convention.

Then, too, the result of the plebiscite in the two proposed amendments in 1967 indicate
unmistakably that the people can, if so minded, make their wishes prevail. There is thus
no assurance that the mere identification with party labels would automatically insure the
success of a candidacy. Even if it be assumed that to guard against the evils of party
spirit carried to excess, such a ban is called for, still no such danger is presented by
allowing civil, professional or any other organization or organized group of whatever
nature to field its own candidates or give aid or support, directly or indirectly material or
otherwise, to anyone running for the Convention. From such a source, no such
misgivings or apprehension need arise. Nor it the fear that organizations could hastily be
assembled or put up to camouflage their true colors as satellites of the political parties be
valid. The electorate can see through such schemes and can emphatically register its
reaction. There is, moreover, the further safeguard that whatever work the Convention
may propose is ultimately subject to popular ratification.

For me then the danger of a substantive evil is neither clear nor present. What causes
me grave concern is that to guard against such undesirable eventuality, which may not
even come to pass, a flagrant disregard of what the Constitution ordains is minimized. A
desirable end cannot be coerced by unconstitutional means.

4. It is not easy to yield assent to the proposition that on a matter so essentially political
as the amendment or revision of an existing Constitution, political parties or political
groups are to be denied the opportunity of launching the candidacy of their choice. Well
has it been said by Chief Justice Hughes: "The greater the importance of safeguarding
the community from incitements to the overthrow of our institutions by force and violence,
the more imperative is the need to preserve inviolate the constitutional rights of free
speech, free press and free assembly in order to maintain the opportunity for free political
discussion, to the end that government may be responsive to the will of the people and
that changes, if desired, may be obtained by peaceful means. Therein lies the security of
the Republic, the very foundation of constitutional government."   It is to carry this
11

essential process one step farther to recognize and to implement the right of every
political party or group to select the candidates who, by their election, could translate into
actuality their hopes for the fundamental law that the times demand. Moreover, is it not in
keeping with the rights to intellectual freedom so sedulously safeguarded by the
Constitution to remove all obstacles to organized civic groups making their influence felt
in the task of constitution framing, the result of which has momentuous implications for
the nation? What is decisive of this aspect of the matter is not the character of the
association or organized group as such but the essentially political activity thus carried
out.

This is not to deny the wide latitude as to the choice of means vested in Congress to
attain a desirable goal. Nor can it be successfully argued that the judiciary should display
reluctance in extending sympathy and understanding to such legislative determination.
This is merely to stress that however worthwhile the objective, the Constitution must still
be paid deference. Moreover, it may not be altogether unrealistic to consider the practical
effects of the ban as thus worded as not lacking in effectivity insofar as civic, religious,
professional or other organizations or organized group is concerned, but not necessarily
so in the case of political party, political group or political committee. There is the
commendable admission by Senator Tolentino, appearing as amicus curiae, that the
political leaders of stature, in their individual capacity, could continue to assert their
influence. It could very well happen, then, in not a few cases, assuming the strength of
political parties, that a candidate thus favored is sure of emerging the victor. What is thus
sought to be accomplished to guard against the evil of party spirit prevailing could very
well be doomed to futility. The high hopes entertained by the articulate and vocal groups
of young people, intellectuals and workers, may not be realized. The result would be that
this unorthodox and novel provision could assume the character of a tease, an illusion
like a munificent bequest in a pauper's will.

If such an appraisal is not unjustifiably tinged with pessimism, then, to my mind, a radical
approach to a problem possibly tainted with constitutional infirmity cannot hurdle the
judicial test as to its validity. It is one thing to encourage a fresh and untried solution to a
problem of gravity when the probability of its success may be assumed. It is an entirely
different matter to cut down the exercise of what otherwise are undeniable constitutional
rights, when as in this case, the outcome might belie expectations. Considering the well-
settled principle that even though the governmental process be legitimate and
substantial, they cannot be pursued by means that broadly stifle fundamental personal
liberties, if the end can be narrowly achieved, I am far from being persuaded that to
preclude political parties or other groups or associations from lending aid and support to
the candidates of men in whom they can repose their trust is consistent with the
constitutional rights of freedom of association and freedom of expression. Here, the
danger of overbreadth, so clear and manifest as to be offensive to constitutional
standards, magnified by the probability that the result would be the failure and not
success of the statutory scheme, cautions against the affixing of the imprimatur of judicial
approval to the challenged provision.

5. Necessarily then, from this mode of viewing the matter, it would follow that the holding
of this Court in Gonzales v. Comelec   does not compel the conclusion reached by the
12

majority sustaining the validity of this challenged provision. What survived the test of
constitutional validity in that case, with the Court unanimous in its opinion, is the
prohibition for any political party, political committee or political group to nominate
candidates for any elective public office voted for at large earlier than 150 days
immediately preceding election and for any other public office earlier than 90 days
immediately preceding such election.   A corollary to the above limitation, the provision
13

making it unlawful for any person, whether or not a voter or candidate, or for any group or
association of persons, whether or not a political party or political committee, to engage
in an election campaign or partisan political activity except during the above periods
successfully hurdled, the constitutional test, although the restrictions as to the making of
speeches, announcements or commentaries or holding interviews for or against the
election of any party or candidate for public office or the publishing or distributing of
campaign literature or materials or the solicitation or undertaking any campaign or
propaganda for or against any candidate or party, directly or indirectly, survived by the
narrow margin of one vote, four members of this Court unable to discern any
constitutional infirmity as against the free speech guarantee, thus resulting in failing to
muster the necessary two-thirds majority for a declaration of invalidity. Insofar as election
campaign or partisan political activity would limit or restrict the formation, of
organizations, associations, clubs, committees or other groups of persons for the
purpose of soliciting votes or undertaking any campaign or propaganda for or against a
party or candidate or, the giving, soliciting, or receiving a contribution for election
campaign purposes, either directly or indirectly as well as the holding of political
conventions, caucuses, conferences, meetings, rallies, parades or other similar
assemblies, with a similar and in view, only five members of this Court, a minority thereof
voted, for their unconstitutionality. What emerges clearly, then, is that definite acts short
of preventing the political parties from the choice of their candidates and thereafter
working for them in effect were considered by this Court as not violative of the
constitutional freedoms of speech, of press, of assembly and of association.

The challenged provision in these two petitions, however, goes much farther. Political
parties or any other organization or organized group are precluded from selecting and
supporting candidates for delegates to the Constitutional Convention. To my mind, this is
to enter a forbidden domain, Congress trespassing on a field hitherto rightfully assumed
to be within the sphere of liberty. Thus, I am unable to conclude that our previous
decision in Gonzales v. Commission on Elections which already was indicative of the
cautious and hesitant judicial approach to lending its approval to what otherwise are
invasions of vital constitutional safeguards to freedoms of belief, of expression, and of
association lends support to the decision reached by the majority insofar as this
challenged provision is concerned.

Hence my inability to subscribe in its entirety to the opinion of the Court. I am authorized
to state that the Chief Justice is in agreement with the views herein expressed.

Concepcion, C.J., Villamor and Zaldivar, JJ., concur.

BARREDO, J., concurring and dissenting:

Without prejudice to a more extended opinion, I vote, in concurrence with the majority, to
sustain the validity of the provisions of Republic Act 6132 impugned by petitioners in
these cases, except Section 4 and the portion of Section 8(a) referring to political parties.
As regards Section 4, I reiterate my separate opinion in the cases of Subido and others.
(G.R. Nos. L-32436 and L-32439) With respect to Section 8(a), I hold that the
considerations which take the restraint on the freedoms of association, assembly and
speech involved in the ban on political parties to nominate and support their own
candidates, reasonable and within the limits of the Constitution do not obtain when it
comes to civic or non-political organizations. As I see it, the said ban, insofar as civic or
non-political organizations are concerned, is a deceptive device to preserve the built-in
advantages of political parties while at the same time crippling completely the other kinds
of associations. The only way to accomplish the purported objective of the law of
equalizing the forces that will campaign in behalf of the candidates to the constitutional
convention is to maintain said ban only as against political parties, for after all, only the
activities and manners of operation of these parties and/or some of their members have
made necessary the imposition thereof. Under the resulting set up embodied in the
provision in question, the individual candidates who have never had any political party
connections or very little of it would be at an obvious disadvantage unless they are
allowed to seek and use the aid of civic organizations. Neither the elaborate provisions of
Republic Act 6132 regarding methods of campaign nor its other provisions intended to
minimize the participation of political parties in the electorate processes of voting,
counting of the votes and canvassing of the results can overcome the advantages of
candidates more or less connected with political parties, particularly the major and
established ones, as long as the right to form other associations and the right of these
associations to campaign for their candidates are denied considering particularly the
shortness of the time that is left between now and election day.

The issues involved in the coming elections are grave and fundamental ones that are
bound to affect the lives, rights and liberties of all the people of this country most
effectively, pervasively and permanently. The only insurance of the people against
political parties which may be inclined towards the Establishment and the status quo is to
organize themselves to gain much needed strength and effectivity. To deny them this
right is to stifle the people's only opportunity for change.

It is axiomatic that issues, no matter how valid, if not related to particular candidates in an
organized way, similarly as in the use of platforms by political parties, cannot have any
chance of support and final adoption. Both men and issues are important, but unrelated
to each other, each of them alone is insignificant, and the only way to relate them is by
organization. Precisely because the issues in this election of candidates are of
paramount importance second to none, it is imperative that all of the freedoms enshrined
in the constitution should have the ampliest recognition for those who are minded to
actively battle for them and any attempt to curtail them would endanger the very
purposes for which a new constitutional convention has been conceived.

Consistently with my separate opinion in the case of Gonzales and Cabigao vs. Comelec,
G.R. No. L-27833, April 18, 1969 and for the reasons therein stated, I maintain that the
right of suffrage which is the cornerstone of any democracy like ours is meaningless
when the right to campaign in any election therein is unreasonably and unnecessarily
curtailed, restrained or hampered, as is being done under the statute in dispute.

It is, of course, understood that this opinion is based on my considered view, contrary to
that of the majority, that as Section 8(a) stands and taking into account its genesis, the
ban against political parties is separable from that against other associations within the
contemplation of Section 21 of the Act which expressly refers to the separability of the
application thereof to any "persons, groups or circumstances."

I reserve my right to expand this explanation of my vote in the next few days.

Imbong v. COMELEC
No. L-32432, 35 SCRA 28 [Sept 11, 1970]
Facts. Congress, acting as a Constituent Assembly passed resolution No. 2
which, among others, called for a Constitutional Convention to be
composed of two delegates from each representative district who shall
have the same qualifications as those of Congressmen, to be elected on
the second Tuesday of November, 1970 in accordance with the Revised
Election Code. Congress then as a legislative assembly enacted RA 4914
implementing Resolution No. 2. Subsequently, Congress as a
Constitutional Assembly passed Resolution No. 4 which amended
Resolution No. 2 and provided more details on the qualifications and
apportionment of the delegates but provided that other details are to be
embodied in an implementing legislation. Congress acting as a legislative
assembly thus enacted RA 6132, implementing Resolution Nos. 2 and 4,
and expressly repealing RA 4914. Petitioners now assail the validity of RA
6132.
Issue. May Congress, acting as a legislative assembly, enact RA 6132 to
implement a resolution passed by the same body acting as a Constituent
Assembly?
Held. Yes. The grant to Congress as a Constituent Assembly of such plenary
authority to call a constitutional convention includes, by virtue of the
doctrine of necessary implication, all other powers essential to the
effective exercise of the principal power granted, such as the power to fix
the qualifications, number, apportionment, and compensation of the
delegates as well as appropriation of funds, and other implementing
details indispensable to the convention. While the authority to call a
constitutional convention is vested by the Constitution solely and
exclusively in Congress acting as a Constituent Assembly, the power to
enact the implementing details, does not exclusively pertain to Congress
acting as a Constituent Assembly. Such implementing details are matters
within the competence of Congress in the exercise of its comprehensive
legislative power, which power encompasses all matters not expressly or
by necessary implication removed by the Constitution from the ambit of
legislative action. Consequently, when Congress, acting as a Constituent
Assembly, omits to provide for such implementing details after calling a 4
The CONSTITUTION of the PHILIPPINES
constitutional convention, Congress, acting as a legislative body, can enact
the necessary implementing legislation to fill in the gaps. 10
A constituent body can propose anything but conclude nothing.