EN BANC

[G.R. No. L-36142. March 31, 1973.]

JOSUE JAVELLANA, petitioner, vs. THE EXECUTIVE SECRETARY,
THE SECRETARY OF NATIONAL DEFENSE, THE SECRETARY OF
JUSTICE and THE SECRETARY OF FINANCE, respondents.
[G.R. No. L-36164. March 31, 1973.]
VIDAL TAN, J. ANTONIO ARANETA, ALEJANDRO ROCES,
MANUEL CRUDO, ANTONIO U. MIRANDA, EMILIO DE PERALTA
and LORENZO M. TAADA , petitioners, vs. THE EXECUTIVE
SECRETARY, THE SECRETARY OF FINANCE, THE SECRETARY OF
JUSTICE, THE SECRETARY OF LAND REFORM, THE SECRETARY
OF NATIONAL DEFENSE, THE AUDITOR GENERAL, THE BUDGET
COMMISSIONER,
THE
CHAIRMAN
OF
PRESIDENTIAL
COMMISSION ON REORGANIZATION, THE TREASURER OF THE
PHILIPPINES, THE COMMISSION ON ELECTIONS and THE
COMMISSIONER OF CIVIL SERVICE, respondents.
[G.R. No. L-36165. March 31, 1973.]
GERARDO ROXAS, AMBROSIO PADILLA, JOVITO R. SALONGA,
SALVADOR H. LAUREL, RAMON V. MITRA, JR. and EVA
ESTRADA-KALAW, petitioners, vs. ALEJANDRO MELCHOR, in his
capacity as Executive Secretary; JUAN PONCE ENRILE, in his
capacity as Secretary of National Defense; General ROMEO
ESPINO, in his capacity as Chief of Sta of the Armed Forces of
the philippines; CONSTANCIO E. CASTAEDA, in his capacity as
Secretary of General Services; Senator GIL J. PUYAT, in his
capacity as President of the Senate; and Senator JOSE ROY, in
his capacity as President Pro Tempore of the Senate ,
respondents.
[G.R. No. L-36236. March 31, 1973.]
EDDIE B. MONTECLARO, [personally and in his capacity
President of the National Press Club of the Philippines],
petitioner, vs, THE EXECUTIVE SECRETARY, THE SECRETARY OF
PUBLIC INFORMATION, THE AUDITOR GENERAL, THE BUDGET
COMMISSIONER & THE NATIONAL TREASURER, respondent.

[G.R. No. L-36283. March 31, 1973.]

NAPOLEON V. DILAG, ALFREDO SALAPANTAN, JR., LEONARDO
ASODISEN, JR., and RAUL M. GONZALEZ, petitioners, vs. THE
HONORABLE SECRETARY OF NATIONAL DEFENSE, THE
HONORABLE BUDGET COMMISSIONER, THE HONORABLE
AUDITOR GENERAL, respondents.

Ramon A. Gonzales for petitioner Josue Javellana.

Lorenzo M. Taada & Associates for petitioners Vidal Tan, et al.
Taada, Salonga, Ordoez, Rodrigo, Sanidad Roxas Gonzales and
petitioners Gerardo Roxas, et al.

Arroyo for

Joker P. Arroyo and Rogelio B. Padilla for petitioner Eddie Monteclaro.

Raul M. Gonzales & Associates for petitioners Napoleon V. Dilag, et al.
Arturo M. Tolentino for respondents Gil J. Puyat and Jose Roy.
Solicitor General Estelito P. Mendoza, Solicitor Vicente V . Mendoza and Solicitor
Reynato S. Puno for other respondents.
RESOLUTION
CONCEPCION, J :
p

The above entitled ve (5) cases are a sequel of cases G.R. Nos. L-35925, L35929, L-35940, L-35941, L-35942, L-35948, L-35953, L-35961, L-35965 and L35979, decided on January 22, 1973, to which We will hereafter refer collectively
plebiscite cases.

Background of the Plebiscite Cases

The factual setting thereof is set forth in the decision rendered, from which We
quote:
"On March 16, 1967, Congress of the Philippines passed Resolution No. 2,
which was amended by Resolution No. 4 of said body, adopted on June 17,
1969, calling a convention to propose amendments to the Constitution of
the Philippines. Said Resolution No. 2, as amended, was implemented by
Republic Act No. 6132, approved on August 24, 1970, pursuant to the
provisions of which the election of delegates to said Convention was held on
November 10, 1970, and the, 1971 Constitutional Convention began to
perform its functions on June 1, 1971. While the Convention was in session
on September 21, 1972, the President issued Proclamation No. 1081 placing

the entire Philippines under Martial Law. On November 29, 1972, the
Convention approved its Proposed Constitution of the Republic of the
Philippines. The next day, November 30, 1972, the President of the
Philippines issued Presidential Decree No. 73, 'submitting to the Filipino
people for ratication or rejection the Constitution of the Republic of the
Philippines proposed by the 1971 Constitutional Convention, and
appropriating funds therefor,' as well as setting the plebiscite for said
ratification or rejection of the Proposed Constitution on January 15, 1973.
"Soon after, or on December 7, 1972, Charito Planas led, with this Court,
Case G.R. No. L-35925, against the Commission on Elections, the Treasurer
of the Philippines and the Auditor General, to enjoin said 'respondents or
their agents from implementing Presidential Decree No. 73, in any manner,
until further orders of the Court,' upon the grounds, inter alia that said
Presidential Decree 'has no force and eect as law because the calling . . . of
such plebiscite, the setting of guidelines for the conduct of the same, the
prescription of the ballots to be used and the question to be answered by
the voters, and the appropriation of public funds for the purpose, are, by
the Constitution, lodged exclusively in Congress . . .,' and 'there is no proper
submission to the people of said Proposed Constitution set for January 15,
1973, there being no freedom of speech, press and assembly, and there
being sufficient time to inform the people of the contents thereof.'
"Substantially identical actions were led, on December 8, 1972, by Pablo C.
Sanidad against the Commission on Elections (Case G.R. No. L-35929); on
December 11, 1972, by Gerardo Roxas, et al., against the Commission on
Elections, Director of Printing, the National Treasurer and the Auditor
General (Case G.R. L-35940), by Eddie B. Monteclaro against the
Commission on Elections and the Treasurer of the Philippines (Case G.R. No
L-35941), and by Sedfrey A. Ordoez, et al. against the National Treasurer
and the Commission on Elections (Case G.R. No. L-35942); on December 12,
1972, by Vidal Tan, et al., against the Commission on Elections, the
Treasurer of the Philippines, the Auditor General and the Director of Printing
(Case G.R. No. L-35948), and by Jose W. Diokno and Benigno S. Aquino
against the Commission on Elections (Case G R No. L-35953); on December
14, 1972, by Jacinto Jimenez against the Commission on Elections, the
Auditor General, the Treasurer of the Philippines and the Director of the
Bureau of Printing (Case G.R. No. L-35961), and by Raul M. Gonzales against
the Commission on Elections, the Budget Commissioner, the National
Treasurer and the Auditor General (Case G.R. No. L-35965), and on
December 16, 1972, by Ernesto C. Hidalgo against the Commission on
Elections, the Secretary of Education, the National Treasurer and the Auditor
General (Case G.R. No. L-35979).
"In all these cases, except the last (G.R. No. L-35979), the respondents were
required to le their answers 'not later than 12:00 (o'clock) noon of
Saturday, December 16, 1972.' Said cases were, also, set for hearing and
partly heard on Monday, December 18, 1972, at 9:30 a.m. The hearing was
continued on December 19, 1972. By agreement of the parties, the
aforementioned last case G.R. No. L-35979 was, also, heard, jointly

with the others, on December 19, 1972. At the conclusion of the hearing, on
that date, the parties in all of the aforementioned cases were given a short
period of time within which 'to submit their notes on the points they desire
to stress.' Said notes were led on dierent dates, between December 21,
1972, and January 4, 1973.
"Meanwhile, or on December 17, 1972, the President had issued an order
temporarily suspending the eects of Proclamation No. 1081, for the
purpose of free and open debate on the Proposed Constitution. On
December 23, the President announced the postponement of the plebiscite
for ratication or rejection of the Proposed Constitution. No formal action to
this eect was taken until January 7, 1973, when General Order No. 20 was
issued, directing 'that the plebiscite scheduled to be held on January 15,
1973 be postponed until further notice.' Said General Order No. 20,
moreover, 'suspended in the meantime' the 'order of December 17, 1972,
temporarily suspending the eects of Proclamation No. 1081 for purposes
of free and open debate on the proposed Constitution.'
"In view of these events relative to the postponement of the aforementioned
plebiscite, the Court deemed it fit to refrain, for the time being, from deciding
the aforementioned cases, for neither the date nor the conditions under
which said plebiscite would be held were known or announced ocially.
Then, again, Congress was, pursuant to the 1935 Constitution, scheduled to
meet in regular session on January 22, 1973, and since the main objection to
Presidential Decree No. 73 was that the President does not have the
legislative authority to call a plebiscite and appropriate funds therefor, which
Congress unquestionably could do, particularly in view of the formal
postponement of the plebiscite by the President reportedly after
consultation with, among others, the leaders of Congress and the
Commission on Elections the Court deemed it more imperative to defer its
final action on these cases.
"In the afternoon of January 12, 1973, the petitioners in Case G.R. No. L35948 led an 'urgent motion,' praying that said case be decided 'as soon as
possible, preferably not later than January 15, 1973.' It was alleged in said
motion, inter alia.
'6.That the President subsequently announced the issuance of Presidential
Decree No. 86 organizing the so-called Citizens Assemblies, to be consulted
on certain public questions [Bulletin Today, January 1, 1973];
'7.That thereafter it was later announced that "the Assemblies will be asked if
they favor or oppose
"[1]The New Society;
"[2]Reforms instituted under Martial Law;
"[3]The holding of a plebiscite on proposed new Constitution
and when (the tentative new dates given following postponement of
the plebiscite from the original date of January 15 are February 19 and

March 5);
"[4]The opening of the regular session on January 22 in
accordance with the existing Constitution despite Martial Law."
[Bulletin Today, January 3, 1973.]
'8.That it was later reported that the following are to be the forms of the
questions to be asked to the Citizens Assemblies:

"[1]Do you approve of the New Society?

"[2]Do you approve of the reform measures under martial law?
"[3]Do you think that Congress should meet again in regular
session?
"[4]How soon would you like the plebiscite on the new
Constitution to be held?" [Bulletin Today, January 5, 1973].
'9.That the voting by the so-called Citizens Assemblies was announced to
take place during the period from January 10 to January 15, 1973;
'10.That on January 10, 1973, it was reported that one more question would
be added to the four (4) questions previously announced, and that the
forms of the questions would be as follows:
"[1]Do you like the New Society?
"[2]Do you like the reforms under martial law?
"[3]Do you like Congress again to hold sessions?
"[4]Do you like the plebiscite to be held later?
"[5]Do you like the way President Marcos is running the aairs
of the government?" [Bulletin Today, January 10, 1973; additional
question italics.]
'11.That on January 11, 1973, it was reported that six (6) more questions
would be submitted to the so called Assemblies:
"[1]Do you approve of the citizens assemblies as the base of
popular government to decide issues of national interests?
"[2]Do you approve of the New Constitution?
"[3]Do you want a plebiscite to be called to ratify the new
Constitution?
"[4]Do you want the elections to be held in November, 1973 in
accordance with the provisions of the 1935 Constitution?

"[5]If the elections would not be held, when do you want the
next elections to be called?
"[6]Do you want martial law to continue?" [Bulletin Today,
January 11, 1973; italics supplied.]
'12.That according to reports, the returns with respect to the six (6)
additional questions quoted above will be on a form similar or identical to
Annex "A" hereof;
'13. That attached to page 1 of Annex "A" is another page which we marked
as Annex "A-1", and which reads:
"COMMENTS ON
QUESTION No. 1
In order to broaden the base of citizen participation in
government.
QUESTION No. 2
But we do not want the Ad Interim Assembly to be convoked. Or
if it is to be convened at all, it should not be done so until after at
least seven (7) years from the approval of the New Constitution
by the Citizens Assemblies.
QUESTION No. 3
The vote of the Citizens Assemblies should already be considered
the plebiscite on the Constitution.
If the Citizens Assemblies approve of the Constitution, then the
new Constitution should be deemed ratified.
QUESTION No. 4
We are sick and tired of too frequent elections. We are fed up
with politics, of so many debates and so much expenses.
QUESTION No. 5
Probably a period of at least seven (7) years moratorium on
elections will be enough for stability to be established in the
country, for reforms to take root and normalcy to return.
QUESTION No. 6
We want President Marcos to continue with Martial Law. We want
him to exercise his powers with more authority. We want him to
be strong and rm so that he can accomplish all his reform
programs and establish normalcy in the country. If all other
measures fail, we want President Marcos to declare a

revolutionary government along the lines of the new Constitution

without the ad interim Assembly."
'Attention is respectfully invited to the comments on "Question No. 3," which
reads:
"QUESTION No. 3
The vote of the Citizens Assemblies should be considered the
plebiscite on the New Constitution.
If the Citizens Assemblies approve of the New Constitution, then
the new Constitution should be deemed ratified."
This, we are afraid, and therefore allege, is pregnant with ominous
possibilities.
'14.That, in the meantime, speaking on television and over the radio, on
January 7, 1973, the President announced that the limited freedom of
debate on the proposed Constitution was being withdrawn and that the
proclamation of martial law and the orders and decrees issued thereunder
would thenceforth strictly be enforced [Daily Express, January 8, 1973];
'15.That petitioners have reason to fear, and therefore state, that the
question added in the last list of questions to be asked to the Citizens
Assemblies, namely:
"Do you approve of the New Constitution?"
in relation to the question following it:
"Do you still want a plebiscite to becalled to ratify the new
Constitution?"
would be an attempt to by-pass and short-circuit this Honorable Court
before which the question of the validity of the plebiscite on the proposed
Constitution is now pending;
'16.That petitioners have reason to fear, and therefore allege, that if an
armative answer to the two questions just referred to will be reported then
this Honorable Court and the entire nation will be confronted with a fait
accompli which has been attained in a highly unconstitutional and
undemocratic manner;
'17.That the fait accompli would consist in the supposed expression of the
people approving the proposed Constitution;
'18.That, if such event would happen, then the case before this Honorable
Court could, to all intents and purposes, become moot because, petitioners
fear, and they therefore allege, that on the basis of such supposed
expression of the will of the people through the Citizens Assemblies, it would
be announced that the proposed Constitution, with all its defects, both

congenital and otherwise, has been ratified;

'19.That, in such a situation, the Philippines will be facing a real crisis and
there is likelihood of confusion if not chaos, because then, the people and
their officials will not know which Constitution is in force.
'20.That the crisis mentioned above can only be avoided if this Honorable
Court will immediately decide and announce its decision on the present
petition;
'21.That with the withdrawal by the President of the limited freedom of
discussion on the proposed Constitution which was given to the people
pursuant to See. 3 of Presidential Decree No. 73, the opposition of
respondents to petitioners' prayer that the proposed plebiscite be prohibited
has now collapsed and that a free plebiscite can no longer be held.'
"At about the same time, a similar prayer was made in a 'manifestation' led
by the petitioners in L-35949, 'Gerardo Roxas, et al, v. Commission on
Elections, et al.,' and L-35942, 'Sedfrey Ordoez, et al. v. The National
Treasurer, et al.'
"The next day, January 13, 1973, which was a Saturday, the Court issued a
resolution requiring the respondents in said three (3) cases to comment on
said 'urgent motion' and 'manifestation,' 'not later that Tuesday noon,
January 16, 1973.' Prior thereto, or on January 15, 1973, shortly before
noon, the petitioners in said Case G.R. No. L-35948 led a 'supplemental
motion for issuance of restraining order and inclusion of additional
respondents,' praying
'. . . that a restraining order be issued enjoining and restraining
respondent Commission on Elections, as well as the Department of
Local Governments and its head, Secretary Jose Roo; the
Department of Agrarian Reforms and its head, Secretary Conrado
Estrella; the National Ratication Coordinating Committee and its
Chairman, Guillermo de Vega; their deputies, subordinates and
substitutes, and all other ocials and persons who may be assigned
such task, from collecting, certifying, and announcing and reporting to
the President or other ocials concerned, the so-called Citizens'
Assemblies referendum results allegedly obtained when they were
supposed to have met during the period comprised between January
10 and January 15, 1973, on the two questions quoted in paragraph 1
of this Supplemental Urgent Motion.'
"In support of this prayer, it was alleged
'3.That petitioners are now before this Honorable Court in order
to ask further that this Honorable Court issue a restraining order
enjoining herein respondents, particularly respondent Commission on
Elections as well as the Department of Local Governments and its
head, Secretary Jose Roo; the Department of Agrarian Reforms and
its head, Secretary Conrado Estrella; the National Ratication

Coordinating Committee and its Chairman, Guillermo de Vega; and

their deputies, subordinates and/or substitutes, from collecting
certifying, announcing and reporting to the President the supposed
Citizens' Assemblies referendum results allegedly obtained when they
were supposed to have met during the period between January 10
and January 15, 1973, particularly on the two questions quoted in
paragraph 1 of this Supplemental Urgent Motion;
'4.That the proceedings of the so-called Citizens' Assemblies are
illegal, null and void particularly insofar as such proceedings are being
made the basis of a supposed consensus for the ratication of the
proposed Constitution because:
[a]The elections contemplated in the Constitution,
Article XV, at which the proposed constitutional
amendments are to be submitted for ratication, are
elections at which only qualied and duly registered voters
are permitted to vote, whereas, the so called Citizens'
Assemblies were participated in by persons 15 years of age
and older, regardless of qualications or lack thereof, as
prescribed in the Election Code;
[b]Elections or plebiscites for the ratication of
constitutional amendments contemplated in Article XV of
the Constitution have provisions for the secrecy of choice
and of vote, which is one of the safeguards of freedom of
action, but votes in the Citizens' Assemblies were open and
were cast by raising hands;
[c]The Election Code makes ample provisions for
free, orderly and honest elections, and such provisions are
a minimum requirement for elections or plebiscites for the
ratication of constitutional amendments, but there were
no similar provisions to guide and regulate proceedings of
the so called Citizens' Assemblies;
[d]It is seriously to be doubted that, for lack of
material time, more than a handful of the so called Citizens'
Assemblies have been actually formed, because the
mechanics of their organization were still being discussed a
day or so before the day they were supposed to begin
functioning
'Provincial governors and city and municipal
mayors had been meeting with barrio captains and
community leaders since last Monday [January 8,
1973] to thresh out the mechanics in the formation
of the Citizens' Assemblies and the topics for
discussion.' [Bulletin Today, January 10, 1973].
'It should be recalled that the Citizens' Assemblies were ordered
formed only at the beginning of the year [Daily Express, January 1,

1973], and considering the lack of experience of the local organizers

of said assemblies, as well as the absence of sucient guidelines for
organization, it is too much to believe that such assemblies could be
organized at such a short notice.
'5.That for lack of material time, the appropriate amended
petition to include the additional ocials and government agencies
mentioned in paragraph 3 of this Supplemental Urgent Motion could
not be completed because, as noted in the Urgent Motion of January
12, 1973, the submission of the proposed Constitution to the Citizens'
Assemblies was not made known to the public until January 11, 1973.
But be that as it may, the said additional ocials and agencies may be
properly included in the petition at bar because:
[a]The herein petitioners have prayed in their petition
for the annulment not only of Presidential Decree No. 73,
but also of "any similar decree, proclamation, order or
instruction."
so that Presidential Decree No. 86, insofar at least as it attempts to
submit the proposed Constitution to a plebiscite by the so-called
Citizens' Assemblies, is properly in issue in this case, and those who
enforce, implement, or carry out the said Presidential Decree No. 86,
and the instructions incidental thereto clearly fall within the scope of
this petition;
[b]In their petition, petitioners sought the issuance of
a writ of preliminary injunction restraining not only the
respondents named in the petition but also their "agents"
from implementing not only Presidential Decree No. 73, but
also "any other similar decree, order, instruction, or
proclamation in relation to the holding of a plebiscite on
January 15, 1973 for the purpose of submitting to the
Filipino people for their ratication or rejection the 1972
Draft or proposed Constitution approved by the
Constitutional Convention on November 30, 1972"; and
finally,
[c]Petitioners prayed for such other relief which may
be just and equitable. [p. 39, Petition].
'Therefore, viewing the case from all angles, the ocials and
government agencies mentioned in paragraph 3 of this Supplemental
Urgent Motion, can lawfully he reached by the processes of this
Honorable Court by reason of this petition, considering, furthermore,
that the Commission on Elections has under our laws the power,
among others, of:
"(a)Direct and immediate supervision and control
over national, provincial, city, municipal and municipal
district ocials required by law to perform duties relative to
the conduct of elections on matters pertaining to the

enforcement of the provisions of this Code . . ." [Election

Code of 1971, Sec. 3].
'6.That unless the petition at bar is decided immediately and the
Commission on Elections, together with the ocials and government
agencies mentioned in paragraph 3 of this Supplemental Urgent
Motion are restrained or enjoined from collecting, certifying, reporting
or announcing to the President the results of the alleged voting of the
so-called Citizens' Assemblies, irreparable damage will be caused to
the Republic of the Philippines, the Filipino people, the cause of
freedom and democracy, and the petitioners herein because:
[a]After the result of the supposed voting on the
questions mentioned in paragraph 1 hereof shall have been
announced, a conict will arise between those who maintain
that the 1935 Constitution is still in force, on the one hand,
and those who will maintain that it has been superseded by
the proposed Constitution, on the other, thereby creating
confusion, if not chaos;
[b]Even the jurisdiction of this Court will be subject to
serious attack because the advocates of the theory that
the proposed Constitution has been ratied by reason of
the announcement of the results of the proceedings of the
so-called Citizens' Assemblies will argue that, General Order
No. 3, which shall also be deemed ratied pursuant to the
Transitory Provisions of the proposed Constitution, has
placed Presidential Decree Nos. 73 and 86 beyond the
reach and jurisdiction of this Honorable Court.'
"On the same date January 15, 1973 the Court passed a resolution
requiring the respondents in said case G.R. No. L-35948 to le 'le an
answer to the said motion not later than 4 P.M., Tuesday, January 16, 1973,'
and setting the motion for hearing 'on January 17, 1973, at 9:30 a.m.' While
the case was being heard, on the date last mentioned, at noontime, the
Secretary of Justice called on the writer of this opinion and said that, upon
instructions of the President, he (the Secretary of Justice) was delivering to
him (the writer) a copy of Proclamation No. 1102, which had just been
signed by the President. Thereupon, the writer returned to the Session Hall
and announced to the Court, the parties in G.R. No. L-35948 inasmuch as
the hearing in connection therewith was still going on and the public there
present that the President had, according to information conveyed by the
Secretary of Justice, signed said Proclamation No. 1102, earlier that
morning. Thereupon, the writer read Proclamation No. 1102 which is of the
following tenor:
'BY THE PRESIDENT OF THE PHILIPPINES
'PROCLAMATION NO. 1102
'ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF THE
CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL

CONVENTION.
'WHEREAS, the Constitution proposed by the nineteen hundred
seventy-one Constitutional Convention is subject to ratication by the
Filipino people;
'WHEREAS, Citizens Assemblies were created in barrios, in
municipalities and in districts/wards in chartered cities pursuant to
Presidential Decree No. 86, dated December 31, 1972, composed of
all persons who are residents of the barrio, district or ward for at least
six months, fteen years of age or over, citizens of the Philippines and
who are registered in the list of Citizen Assembly members kept by the
barrio, district or ward secretary;
'WHEREAS, the said Citizens Assemblies were established
precisely to broaden the base of citizen participation in the democratic
process and to aord ample opportunity for the citizenry to express
their views on important national issues;
'WHEREAS, responding to the clamor of the people and
pursuant to Presidential Decree No. 86-A, dated January 5, 1973, the
following questions were posed before the Citizens Assemblies or
Barangays: Do you approve of the New Constitution? Do you still want
a plebiscite to be called to ratify the new Constitution?
'WHEREAS, fourteen million nine hundred seventy-six thousand
ve hundred sixty-one (14,976,561) members of all the Barangays
(Citizens Assemblies) voted for the adoption of the proposed
Constitution, as against seven hundred forty-three thousand eight
hundred sixty-nine (743,869) who voted for its rejection; while on the
question as to whether or not the people would still like a plebiscite to
be called to ratify the new Constitution, fourteen million two hundred
ninety-eight thousand eight hundred fourteen (14,298,814) answered
that there was no need for a plebiscite and that the vote of the
Barangays (Citizens Assemblies) should be considered as a vote in a
plebiscite;
'WHEREAS, since the referendum results show that more than
ninety-ve (95) per cent of the members of the Barangays (Citizens
Assemblies) are in favor of the new Constitution, the Katipunan ng
Mga Barangay has strongly recommended that the new Constitution
should already be deemed ratified by the Filipino people;
'NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers in me vested by the Constitution,
do hereby certify and proclaim that the Constitution proposed by the
nineteen hundred and seventy-one (1971) Constitutional Convention
has been ratied by an overwhelming majority of all of the votes cast
by the members of all the Barangays (Citizens Assemblies) throughout
the Philippines, and has thereby come into effect.

'IN WITNESS WHEREOF, I have hereunto set my hand and

caused the seal of the Republic of the Philippines to be affixed.
'Done in the City of Manila, this 17 th day of January, in the year
of Our Lord, nineteen hundred and seventy-three.
(Sgd.) FERDINAND E. MARCOS
'President of the Philippines
'By the President:
'ALEJANDRO MELCHOR
'Executive Secretary'
"Such is the background of the cases submitted for Our determination.
After admitting some of the allegations made in the petition in L-35948 and
denying the other allegations thereof, respondents therein alleged in their
answer thereto, by way of armative defenses: 1) that the 'questions
raised' in said petition 'are political in character'; 2) that 'the Constitutional
Convention acted freely and had plenary authority to propose not only
amendments but a Constitution which would supersede the present
Constitution' as that 'the President's call for a plebiscite and the
appropriation of funds for this purpose are valid'; 4) that 'there is not an
improper submission' and there can be a plebiscite under Martial Law'; and
5) that the 'argument that the Proposed Constitution is vague and
incomplete, makes an unconstitutional delegation of power, includes a
referendum on the proclamation of Martial Law and purports to exercise
judicial power' is 'not relevant and . . . without merit.' Identical defenses were
set up in the other cases under consideration.
"Immediately after the hearing held on January 17, 1973, or since the
afternoon of that date, the Members of the Court have been deliberating on
the aforementioned cases and, after extensive discussions on the merits
thereof, have deemed it best that each Member write his own views thereon
and that thereafter the Chief Justice should state the result or the votes thus
cast on the points in issue. Hence, the individual views of my brethren in the
Court are set forth in the opinions attached hereto, except that, instead of
writing their separate opinions, some Members have preferred to merely
concur in the opinion of one of our colleagues."

Then the writer of said decision expressed his own opinion on the issues involved
therein, after which he recapitulated the views of the Members of the Court, as
follows:
"1.There is unanimity on the justiciable nature of the issue on the legality of
Presidential Decree No. 73.
"2.On the validity of the decree itself, Justices Makalintal, Castro, Fernando,
Teehankee, Esguerra and myself, or six (6) Members of the Court, are of the

opinion that the issue has become moot and academic, whereas Justices
Barredo, Makasiar and Antonio voted to uphold the validity of said Decree.
"3.On the authority of the 1971 Constitutional Convention to pass the
proposed Constitution or to incorporate therein the provisions contested by
the petitioners in L-35948, Justices Makalintal, Castro, Teehankee and
Esguerra opine that the issue has become moot and academic. Justices
Fernando, Barredo, Makasiar, Antonio and myself have voted to uphold the
authority of the Convention.
"4.Justice Fernando, likewise, expressed the view that the 1971
Constitutional Convention had authority to continue in the performance of
its functions despite the proclamation of Martial Law. In eect, Justices
Barredo, Makasiar and Antonio hold the same view.
"5.On the question whether the proclamation of Martial Law aected the
proper submission of the proposed Constitution to a plebiscite, insofar as
the freedom essential therefor is concerned Justice Fernando is of the
opinion that there is a repugnance between the election contemplated under
Art. XV of the 1935 Constitution and the existence of Martial Law, and
would, therefore, grant the petitions were they not moot and academic.
Justices Barredo, Antonio and Esguerra are of the opinion that issue involves
questions of fact which cannot be predetermined, and that Martial Law per
se does not necessarily preclude the factual possibility of adequate freedom
for the purposes contemplated.
"6.On Presidential Proclamation No. 1102, the following views were
expressed:
"a.Justices Makalintal, Castro, Fernando, Teehankee, Makasiar,
Esguerra and myself are of the opinion that the question of validity of
said Proclamation has not been properly raised before the Court,
which, accordingly, should not pass upon such question.
"b.Justice Barredo holds that the issue on the constitutionality of
Proclamation No. 1102 has been submitted to and should be
determined by the Court, and that the purported ratication of the
Proposed Constitution . . . based on the referendum among Citizens'
Assemblies falls short of being in strict conformity with the
requirements of Article XV of the 1935 Constitution,' but that such
unfortunate drawback notwithstanding, 'considering all other related
relevant circumstances, . . . the new Constitution is legally
recognizable and should be recognized as legitimately in force.'
"c.Justice Zaldivar maintains unqualiedly that the Proposed
Constitution has not been ratied in accordance with Article XV of the
1935 Constitution, and that, accordingly, it has no force and eect
whatsoever.
"d.Justice Antonio feels 'that the Court is not competent to act'
on the issue whether the Proposed Constitution has been ratied by

the people or not, 'in the absence of any judicially discoverable and
manageable standards,' since the issue 'poses a question of fact.'
"7.On the question whether or not these cases should be dismissed,
Justices Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra voted
in the armative, for the reasons set forth in their respective opinions.
Justices Fernando, Teehankee, and the writer similarly voted, except as
regards Case No. L-35948 as to which they voted to grant to the petitioners
therein a reasonable period of time within which to le appropriate pleadings
should they wish to contest the legality of Presidential Proclamation No.
1102. Justice Zaldivar favors the granting of said period to the petitioners in
said Case No. L-35948 for the aforementioned purpose, but he believes, in
eect, that the Court should go farther and decide on the merits everyone
of the cases under consideration."

Accordingly, the Court acting in conformity with the position taken by six (6) of
its members, 1 with three (3) members dissenting, 2 with respect to G.R. No. L35948, only, and another member 3 dissenting, as regards all of the cases
dismissed the same, without special pronouncement as to costs.

The Present Cases

Prior thereto, or on January 20, 1973, Josue Javellana led Case G.R. No. L-36142
against the Executive Secretary and the Secretaries of National Defense, Justice and
Finance, to restrain said respondents "and their subordinates or agents, from
implementing any of the provisions of the proposed Constitution not found in the
present Constitution' referring to that of 1935. The petition therein, led by
Josue Javellana, as a "Filipino citizen, and a qualied and registered voter" and as "a
class suit, for himself, and in behalf of all citizens and voters similarly situated," was
amended on or about January 24, 1973. After reciting in substance the facts set
forth in the decision in the plebiscite cases, Javellana alleged that the President had
announced "the immediate implementation of the New Constitution, thru his
Cabinet, respondents including," and that the latter "are acting without, or in excess
of jurisdiction in implementing the said proposed Constitution" upon the ground:
"that the President, as Commander-in-Chief of the Armed Forces of the Philippines,
is without authority to create the Citizens Assemblies"; that the same "are without
power to approve the proposed Constitution . . ."; "that the President is without
power to proclaim the ratication by the Filipino people of the proposed
Constitution"; and "that the election held to ratify the proposed Constitution was
not a free election, hence null and void."
Similar actions were led, on January 23, 1973, by Vidal Tan, J. Antonio Araneta,
Alejandro Roces, Manuel Crudo, Antonio U. Miranda, Emilio de Peralta and Lorenzo
M. Taada against the Executive Secretary, the Secretaries of Finance Justice, Land
Reform, and National Defense, the Auditor General, Budget Commissioner, the
Chairman of the Presidential Commission on Reorganization, the Treasurer of the
Philippines, the Commission on Elections and the Commissioner of Civil Service 4 ;
on February 3, 1973, by Eddie Monteclaro, personally and as President of the
National Press Club of the Philippines, against the Executive Secretary, the

Secretary of Public Information, the Auditor General, Budget Commissioner and the
National Treasurer 5 ; and on February 12, 1973, by Napoleon V. Dilag, Alfredo
Salapantan, Jr., Leonardo Asodisen, Jr. and Raul M. Gonzales, 6 against the Executive
Secretary, the Secretary of National Defense, the Budget Commissioner and the
Auditor General.
Likewise, on January 23, 1973, Gerardo Roxas, Ambrosio Padilla, Jovito R. Salonga,
Salvador H. Laurel, 7 Ramon V. Mitra, Jr. and Eva Estrada-Kalaw, the rst as "duly
elected Senator and Minority Floor Leader of the Senate," and the others as "duly
elected members" thereof, led Case G.R. No. L-36165, against the Executive
Secretary, the Secretary of National Defense, the Chief of Sta of the Armed Forces
of the Philippines, the Secretary of General Services, the President and the President
Pro Tempore of the Senate. In their petition as amended on January 26, 1973
petitioners Gerardo Roxas, et al. allege, inter alia, that the term of oce of three (3)
of the aforementioned petitioners 8 would expire en December 31, 1975, and that
of the others 9 on December 31, 1977; that pursuant to our 1935 Constitution,
"which is still in force," Congress of the Philippines "must convene for its 8th
Session on Monday, January 22, 1973, at 10:00 A.M., which is the regular
customary hour of its opening session"; that "on said day, from 10:00 A.M. up to the
afternoon," said petitioner "along with their other colleagues, were unlawfully
prevent from using the Senate Session Hall, the same having be closed by the
authorities in physical possession and control of the Legislative Building'; that "(a)t
about 5:00 to 6:00 P.M. of the said day, the premises of the entire Legislative
Building were ordered cleared by the same authorities, and no one was allowed to
enter and have access to said premises"; that "(r)espondent Senate President Gil J.
Puyat and, in his absence, respondent President Pro Tempore Jose Roy were asked
by petitioning Senators to perform their duties under the law and the Rules of the
Senate, but unlawfully refrained and continue to refrain from doing so"; that the
petitioners "are ready and willing to perform their duties as duly elected members
of the Senate of the Philippines," but respondents Secretary of National Defense,
Executive Secretary and Chief of Sta, "through their agents and representatives,
are preventing petitioners from performing their duties as duly elected Senators of
the Philippines"; that "the Senate premises in the Congress of the Philippines
Building . . . are occupied by and are under the physical control of the elements of
military organizations under the direction of said respondents"; that, as per "ocial
reports, the Department of General Services . . . is now the civilian agent in custody
of the premises of the Legislative Building"; that respondents "have unlawfully
excluded and prevented, and continue to so exclude and prevent" the petitioners
from the performance of their sworn duties, invoking the alleged approval of the
1972 (1973) Constitution of the Philippines by action of the so-called Citizens'
Assemblies on January 10, 1973 to January 15, 197 ', as stated in and by virtue of
Proclamation No. 1102 signed and issued by the President of the Philippines"; that
"the alleged creation of the Citizens' Assemblies as instrumentalities for the
ratification of the Constitution of the Republic of the Philippines" is inherently illegal
and palpably unconstitutional; that respondents Senate President and Senate
President Pro Tempore "have unlawfully refrained and continue to refrain from
and/or unlawfully neglected and continue to neglect the performance of their duties
and functions as such ocers under the law and the Rules of the Senate" quoted in

the petition; that because of events supervening the institution of the plebiscite
cases, to which reference has been made in the preceding pages" the Supreme
Court dismissed said cases on January 22, 1973, by a majority vote, upon the
ground that the petitions therein had become moot and academic; that the alleged
ratification of the 1972 (1973) Constitution "is illegal, unconstitutional and void and
. . . can not have superseded and revoked the 1935 Constitution," for the reasons
specied in the petition as amended; that, by acting as they did, the respondents
and their "agents, representatives and subordinates . . . have excluded the
petitioners from an oce to which" they "are lawfully entitled"; that "respondents
Gil J. Puyat and Jose Roy have unlawfully refrained from convening the Senate for
its 8th session, assuming general jurisdiction over the Session Hall and the premises
of the Senate and . . . continue such inaction up to this time and . . . a writ of
mandamus is warranted in order to compel them to comply with the duties and
functions specically enjoined by law"; and that "against the above mentioned
unlawful acts of the respondents, the petitioners have no appeal nor other speedy
and adequate remedy in the ordinary course of law except by invoking the equitable
remedies of mandamus and prohibition with the provisional remedy of preliminary
mandatory injunction."

Premised upon the foregoing allegations, said petitioners prayed that, "pending
hearing on the merits, a writ of preliminary mandatory injunction be issued
ordering the respondents Executive Secretary, the Secretary of National Defense,
the Chief of Sta of the Armed Forces of the Philippines, and the . . . Secretary of
General Services, as well as all their agents, representatives and subordinates to
vacate the premises of the Senate of the Philippines and to deliver physical
possession of the same to the President of the Senate or his authorized
representative"; and that "after hearing, judgment be rendered declaring null and
void Proclamation No. 1102 . . . and any order, decree, or proclamation having the
same import and objective, issuing the writs of prohibition and mandamus, as
prayed for against the above-mentioned respondents, and making the writ of
injunction permanent; and that a writ of mandamus be issued against the
respondents Gil J. Puyat and Jose Roy directing them to comply with their duties and
functions as President and President Pro Tempore, respectively, of the Senate of the
Philippines, as provided by law and the Rules of the Senate."
Required to comment on the above-mentioned petitions and/or amended petitions,
respondents led, with the leave of Court rst had and obtained, a consolidated
comment on said petitions and/or amended petitions, a consolidated comment on
said petitions and/or amended petitions, alleging that the same ought to have been
dismissed outright; controverting petitioners' allegations concerning the alleged lack
or impairment of the freedom of the 1971 Constitutional Convention to approve the
proposed Constitution, its alleged lack of authority to incorporate certain contested
provisions thereof, the alleged lack of authority of the President to create and
establish Citizens' Assemblies "for the purpose of submitting to them the matter of
ratication of the new Constitution," the alleged "improper or inadequate
submission of the proposed constitution," the "procedure for ratication adopted . . .

through the Citizens Assemblies"; and maintaining that: 1) "(t)he Court is without
jurisdiction to act on these petitions"; 2) the questions raised therein are "political in
character and therefore non-justiciable"; 3) "there was substantial compliance with
Article XV of the 1935 Constitution"; 4) "(t)he Constitution was properly submitted
to the people in a free, orderly and honest election"; 5) "Proclamation No. 1102,
certifying the results of the election, is conclusive upon the courts"; and 6) "(t)he
amending process outlined in Article XV of the 1935 Constitution is not exclusive of
other modes of amendment."
Respondents Puyat and Roy, in said Case G.R. No. L-36165, led their separate
comment therein, alleging that "(t)he subject matter" of said case "is a highly
political question which, under the circumstances, this . . . Court would not be in a
position to act upon judicially," and that, in view of the opinions expressed by three
members of this Court in its decision in the plebiscite cases, in eect upholding the
validity of Proclamation No. 1102, "further proceedings in this case may only be an
academic exercise in futility."
On February 5, 1973, the Court issued a resolution requiring respondents in L
36236 to comment on the petition therein not later than Saturday, February 10,
1973, and setting the case for hearing on February 12, 1973, at 9:30 a.m. By
resolution dated February 7, 1973, this Court resolved to consider the comments of
the respondents in cases G.R. Nos. L-36142, L-36161, L-36165, as motions to
dismiss the petitions therein, and to set said cases for hearing on the same date and
time as L-36236. On that date, the parties in G.R. No. L-36283 10 agreed that the
same be, likewise, heard, as it was, in fact, heard jointly with the aforementioned
cases G.R. Nos. L-36142, L-36164, L-36165 and L 36236. The hearing, which began
on February 12, shortly after 9:30 a.m., was continued not only that after but, also,
on February 13, 14, 15 and 16, morning and afternoon, after which the parties were
granted up to February 24, 1973, noon, within which to submit their notes
arguments and additional arguments, as well as the documents required of them or
whose presentation was reserved by them. The same resolution granted the parties
until March 1, 1973, to reply to the notes led by their respective opponents.
Counsel for the petitioners in G.R. Nos. L-36164 and L-36165 led their
aforementioned notes on February 24, 1973, on which date the Solicitor General
sought an extension of time up to March 3, 1973, within which to le his notes,
which was granted, with the understanding that said notes shall include his reply to
the notes already led by the petitioners in G.R. Nos. L-36164 and L-36165. Counsel
for the petitioners, likewise, moved and were granted an extension of time, to
expire on March 10, 1973, within which to le, as they did, their notes in reply to
those submitted by the Solicitor General on March 3, 1973. On March 21, 1973,
petitioners in l-36165 led a "Manifestation and Supplemental Rejoinder," whereas
the Oce of the Solicitor General submitted in all these cases a "Rejoinder to
Petitioners' Replies."
After deliberating on these cases, the members of the Court agreed that each would
write his own opinion and serve a copy thereof on his colleagues, and this they did.
Subsequently, the Court discussed said opinions and votes were cast thereon. Such
individual opinions are appended hereto.

Accordingly, the writer will rst express his personal opinion on the issues before
the Court. After the exposition of his aforesaid opinion, the writer will make,
concurrently with his colleagues in the Court, a resume of summary of the votes
cast by them in these cases.

Writer's Personal Opinion

I

Alleged academic futility of further proceedings in G.R. No. L-36165.

This defense or theory, set up by counsel for respondents Gil J. Puyat and Jose Roy in
G.R. No. L-36165, and, also, by the Solicitor General, is predicated upon the fact
that, in Our decision in the plebiscite cases, Mr. Justice Barredo expressed the view
that the 1935 Constitution had "pro tanto passed into history" and "been
legitimately supplanted by the Constitution now in force by virtue of Proclamation
No. 1102 . . . "; that Mr. Justice Antonio did not feel "that this Court is competent to
act" in said cases "in the absence of any judicially discoverable and manageable
standards" and because "the access to relevant information is insucient to assure
the correct determination of the issue," apart from the circumstance that "the new
constitution has been promulgate and great interests have already arisen under it"
and that the political organ of the Government has recognized its provisions;
whereas, Mr. Justice Esguerra had postulated that "(w)ithout any competent
evidence . . . about the circumstances attending the holding" of the referendum or
plebiscite" thru the Citizens' Assemblies, he "cannot say that it was not lawfully
held" and that, accordingly, he assumed "that what the proclamation (No. 1102)
says on its face is true and until overcome by satisfactory evidence" he could not
"subscribe to the claim that such plebiscite was not held accordingly"; and that he
accepted "as a fait accompli that the Constitution adopted (by the 1971
Constitutional Convention) on November 30, 1972, has been duly ratified."
Counsel for respondents Gil J. Puyat and Jose Roy goes on to say that, under these
circumstances, "it seems remote or improbable that the necessary eight (8) votes
under the 1935 Constitution, and much less the ten (10) votes required by the
1972 (1973) Constitution, can be obtained for the relief sought in the Amended
Petition" in G.R. No. L-36165.
I am unable to share this view. To begin with, Mr. Justice Barredo announced
publicly, in open court, during the hearing of these cases, that he was and is willing
to be convinced that his aforementioned opinion in the plebiscite cases should be
reconsidered and changed. In eect, he thus declared that he had an open mind in
connection with the cases at bar, and that in deciding the same he would not
necessarily adhere to said opinion if the petitioners herein succeeded in convincing
him that their view should be sustained.
Secondly, counsel for the aforesaid respondents had apparently assumed that, under
the 1935 Constitution, eigth (8) votes are necessary to declare invalid the contested
Proclamation No. 1102. I do not believe that this assumption is borne out by any
provision of said Constitution. Section 10 of Article VIII thereof reads:

"All cases involving the constitutionality of a treaty or law shall be heard and
decided by the Supreme Court in banc, and no treaty or law may be
declared unconstitutional without the concurrence of two thirds of all the
members of the Court."

Pursuant to this section, the concurrence of two thirds of all the Members of the
Supreme Court is required only to declare a "treaty or law" unconstitutional.
Construing said provision, in a resolution dated September 16, 1949, then Chief
Justice Moran, voicing the unanimous view of the Members of this Court,
postulated:
". . . There is nothing either in the Constitution or in the Judiciary Act
requiring the vote of eight Justices to nullify a rule or regulation or an
executive order issued by the President. It is very signicant that in the
previous drafts of section 10, Article VIII of the Constitution, 'execution
order' and 'regulation' were included among those that required for their
nullication the vote of two-thirds of all the members of the Court. But
'executive order' and 'regulation' were later deleted from the nal draft
(Aruego, The Framing of the Philippine Constitution, Vol. I, pp. 495, 496),
and thus a mere majority of six members of this Court is enough to nullify
them." 11

The distinction is not without reasonable foundation. The two thirds vote (eight [8]
votes) requirement, indeed, was made to apply only to treaty and law, because, in
these cases, the participation of the two other departments of the government
the Executive and the Legislative is present, which circumstance is absent in the
case of rules, regulations and executive orders. Indeed, a law(statute) passed by
Congress is subject to the approval or veto of the President, whose disapproval
cannot be overridden except by the vote of two-thirds (2/3) of all members of each
House of Congress. 12 A treaty is entered into by the President with the concurrence
of the Senate, 13 which is not required in the case of rules, regulations or executive
orders which are exclusive acts of the President. Hence, to nullify the same, a lesser
number of votes is necessary in the Supreme Court than that required to invalidate
a law or treaty.

Although the foregoing refers to rules, regulations and executive orders issued by
the President, the dictum applies with equal force to executive proclamations, like
said Proclamation No. 1102, inasmuch as the authority to issue the same is
governed by section 63 of the Revised Administrative Code, which provides:
"Administrative acts and commands of the (Governor-General) President of
the Philippines touching the organization or mode of operation of the
Government or rearranging or readjusting any of the districts, divisions,
parts, or ports of the (Philippine Islands) Philippines and all acts and
commands governing the general performance of duties by public
employees or disposing of issues of general concern shall be made eective
in executive orders.

"Executive orders xing the dates when specic laws, resolutions, or orders
are to have or cease to (have) eect and any information concerning
matters of public moment determined by law, resolution, or executive
orders, may be promulgated in an executive proclamation, with all the force
of an executive order." 14

In fact, while executive orders embody administrative acts or commands of the

President, executive proclamations are mainly informative and declaratory in
character, and so does counsel for respondents Gil J. Puyat and Jose Roy maintain in
G.R. No. L-36165. 15 As consequence, an executive proclamation has no more than
"the force of an executive order," so that, for the Supreme Court to declare such
proclamation unconstitutional, under the 1935 Constitution, the same number of
votes needed to invalidate an executive order, rule of regulation namely, six (6)
votes would suffice.
As regards the applicability of the provisions of the proposed new Constitution,
approved by the 1971 Constitutional Convention, in the determination of the
question whether or not it is now in force, it is obvious that such question depends
upon whether or not the said new Constitution has been ratied in accordance with
the requirements of the 1935 Constitution, upon the authority of which said
Constitutional Convention was called and approved the proposed Constitution. It is
well settled that the matter of ratication of an amendment to the Constitution
should be settled by applying the provisions of the Constitution in force at the time
of the alleged ratification, or the old Constitution. 16
II

Does the issue on the validity of Proclamation No. 1102 partake of the nature of a
political, and, hence, non-justiciable question?
The Solicitor General maintains in his comment the armative view and this is his
main defense. In support thereof, he alleges that "petitioners would have this Court
declare as invalid the New Constitution of the Republic" from which he claims
"this Court now derives its authority"; that "nearly 15 million of our body politic
from the age of 15 years have mandated this Constitution to be the New
Constitution and the prospect of unsettling acts done in reliance on it caution
against interposition of the power of judicial review"; that "In the case of the New
Constitution, the government has been recognized in accordance with the New
Constitution"; that "the country's foreign relations are now being conducted in
accordance with the new charter"; that "foreign governments have taken note of
it"; that the "plebiscite cases" are "not precedents for holding questions regarding
proposal and ratication justiciable"; and that "to abstain from judgment on the
ultimate issue of constitutionality is not to abdicate duty."
At the outset, it is obvious to me that We are not being asked to "declare" the new
Constitution invalid. What petitioners dispute is the theory that it has been validly
ratied by the people, especially that they have done so in accordance with Article
XV of the 1935 Constitution. The petitioners maintain that the conclusion by the
Chief Executive in the dispositive portion of Proclamation No. 1102 is not borne out

by the whereases preceding the same, as the predicates from which said conclusion
was drawn; that the plebiscite or "election" required in said Article XV has not been
held; that the Chief Executive has not authority, under the 1935 Constitution, to
dispense with said election or plebiscite; that the proceedings before the Citizens'
Assemblies did not constitution and may not be considered as such plebiscite; that
the facts of record abundantly show that the aforementioned Assemblies could not
have been held throughout the Philippines from January 10 to January 15, 1973;
and that, in any event, the proceedings in said Assemblies are null and void as an
alleged ratication of the new Constitution proposed by the 1971 Constitutional
Convention, not only because of the circumstances under which said Assemblies had
been created and held, but, also, because persons disqualied to vote under Article V
of the Constitution were allowed to participate therein, because the provisions of
our Election Code were not observed in said Assemblies, because the same were not
held under the supervision of the Commission on Elections, in violations of section 2
of Article X of the 1935 Constitution, and because the existence of Martial Law and
General Order No. 20, withdrawing or suspending the limited freedom to discuss the
merits and demerits of said proposed Constitution, impaired the people's freedom in
voting thereon, particularly, a viva voce, as it was done in many instances, as well
as their ability to have a reasonable knowledge of the contents of the document on
which they were allegedly called upon to express their views.
Referring now more specically to the issue on whether the new Constitution
proposed by the 1971 Constitutional Convention has been ratied in accordance
with the provisions of Article XV of the 1935 Constitution is a political question or
not, I do not hesitate to state that the answer must be in the negative. Indeed, such
is the position taken by this Court, 17 in an endless line of decisions, too long to
leave any room for possible doubt that said issue is inherently and essentially
justiciable. Such, also, has been the consistent position of the courts of the United
States of America, whose decisions have a persuasive eect in this jurisdiction, our
constitutional system in the 1935 Constitution being patterned after that of the
United States. Besides, no plausible reason has, to my mind, been advanced to
warrant a departure from said position, consistently with the form of government
established under said Constitution.
Thus, in the aforementioned plebiscite cases, 18 We rejected the theory of the
respondents therein that the question whether Presidential Decree No. 73 calling a
plebiscite to be held on January 15, 1973, for the ratication or rejection of the
proposed new Constitution, was valid or not, was not a proper subject of judicial
inquiry because, they claimed, it partook of a political nature; and We unanimously
declared that the issue was a justiciable one. With identical unanimity, We
overruled the respondents' contention in the 1971 habeas corpus cases, 19
questioning Our authority to determine the constitutional suciency of the factual
bases of the Presidential proclamation suspending the privileges of the writ of
habeas corpus on August 21, 1971, despite the opposite view taken by this Court in
Barcelona v. Baker 20 and Montenegro v. Castaeda, 21 insofar as it adhered to the
former case, which view We, accordingly abandoned and refused to apply. For the
same reason, We did not apply and expressly modied, in Gonzales v. Commission
on Elections, 22 the political-question theory adopted in Mabanag v. Lopez Vito. 23

Hence, respondents herein urge Us to reconsider the action thus taken by the Court
and to revert to and follow the views expressed in Barcelon v. Baker and Mabanag
v. Lopez Vito. 24
The reasons adduced in support thereof are, however, substantially the same as
those given in support of the political-question theory advanced in said habeas
corpus and plebiscite cases, which were carefully considered by this Court and found
by it to be legally unsound and constitutionally untenable. As a consequence, Our
decision in the aforementioned habeas corpus cases partakes of the nature and
eect of a stare decisis, which gained added weight by its virtual reiteration in the
plebiscite cases.
The reason why the issue under consideration and other issues of similar character
are justiciable, not political, is plain and simple. One of the principal bases of the
non-justiciability of so-called political questions is the principle of separation of
powers characteristic of the Presidential system of government the functions
of which are classified or divided, by reason of their nature, into three (8) categories,
namely: 1) those involving the making of laws, which are allocated to the
legislative department; 2) those concerned mainly with the enforcement of such
laws and of judicial decisions applying and/or interpreting the same, which belong to
the executive department; and 3) those dealing with the settlement of disputes,
controversies or conicts involving rights, duties or prerogatives that are legally
demandable and enforceable, which are apportioned to courts of justice. Within its
own sphere but only within such sphere each department is supreme and
independent of the others, and each is devoid of authority, not only to encroach
upon the powers or eld of action assigned to any of the other departments, but,
also, to inquire into or pass upon the advisability or wisdom of the acts performed,
measures taken or decisions made by the other departments provided that such
acts, measures or decisions are within the area allocated thereto by the
Constitution. 25
This principle of separation of powers under the Presidential system goes hand in
hand with the system of checks and balances, under which each department is
vested by the Fundamental Law with some powers to forestall, restrain or arrest a
possible or actual misuse or abuse of powers by the other departments. Hence, the
appointing power of the Executive, his pardoning power, his veto power, his
authority to call the Legislature or Congress to special sessions and even to prescribe
or limit the object or objects of legislation that may be taken up in such sessions,
etc. Conversely, Congress or an agency or arm thereof such as the Commission
on Appointments; may approve or disapprove some appointments made by the
President, It, also, has the power of appropriation, to "dene, prescribe, and
apportion the jurisdiction of the various courts," as well as that of impeachment.
Upon the other hand, under the judicial power vested by the Constitution, the
"Supreme Court and . . . such inferior courts as may be established by law," may
settle or decide with nality, not only justiciable controversies between private
individuals or entities, but, also, disputes or conicts between a private individual or
entity, on the one hand, and an ocer or branch of the government, on the other,
or between two (2) ocers or branches of service, when the latter ocer or branch

is charged with acting without jurisdiction or in excess thereof or in violation of law.

And so, when a power vested in said ocer or branch of the government is absolute
o r unqualified, the acts in the exercise of such power are said to be political in
nature, and, consequently, non-justiciable beyond judicial review. Otherwise, courts
of justice would be arrogating upon themselves a power conferred by the
Constitution upon another branch of the service to the exclusion of the others.
Hence, in Taada v. Cuenco, 26 this Court quoted with approval from In re
McConaughy, 27 the following:

"'At the threshold of the case we are met with the assertion that the
questions involved are political, and not judicial. If this is correct, the court
has no jurisdiction as the certicate of the state canvassing board would
then be nal, regardless of the actual vote upon the amendment. The
question thus raised is a fundamental one; but it has been so often decided
contrary to the view contended for by the Attorney General that it would
seem to be finally settled.
xxx xxx xxx
"'. . . What is generally meant, when it is said that a question is political, and
not judicial, is that it is a matter which is to be exercised by the people in
their primary political capacity, or that it has been specically delegated to
some other department or particular ocer of the government, with
discretionary power to act. See State vs. Cunningham, 81 Wis. 497, N.W.
724, 15 L.R.A. 561; In re Gunn, 50 Kan. 155; 32 Pac. 470, 948, 19 L.R.A.
519; Green vs. Mills, 69 Fed. 852, 16 C.C.A. 516, 30 L.R.A. 90; Fletcher vs.
Tuttle, 151 Ill. 41 37 N.E. 683, 25 L.R.A. 143, 42 Am. St. Rep. 220. Thus the
Legislature may in its discretion determine whether it will pass a law or
submit a proposed constitutional amendment to the people. The courts have
no judicial control over such matters, not merely because they involve
political questions , but because they are matters which the people have by
the Constitution delegated to the Legislature. The Governor may exercise
the powers delegated to him, free from judicial control, so long as he
observes the laws and acts within the limits of the power conferred. His
discretionary acts cannot be controllable, not primarily because they are of a
political nature, but because the Constitution and laws have placed the
particular matter under his control. But every ocer under a constitutional
government must act according to law and subject to its restrictions, and
every departure therefrom or disregard thereof must subject him to that
restraining and controlling power of the people, acting through the agency
of the judiciary; for it must be remembered that the people act through
courts, as well as through the executive or the Legislature. One department
is just as representative as the other, and the judiciary is the department
which is charged with the special duty of determining the limitations which
the law places upon all ocial action. The recognition of this principle,
unknown except in Great Britain and America, is necessary, to "the end that
the government may be one of laws and not of men" words which
Webster said were the greatest contained in any written constitutional

document.' (Italics supplied.)"

and, in an attempt to describe the nature of a political question in terms, it was

hoped, understandable to the laymen, We added that ". . . the term 'political
question' connotes, in legal parlance, what it means in ordinary parlance,
namely, a question of policy" in matters concerning the government of a State,
as a body politic. "In other words, in the language of Corpus Juris Secundum
(supra), it refers to 'those questions which, under the Constitution, are to be
decided by the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the Legislature or executive branch
of the government.' It is concerned with issues dependent upon the wisdom, not
legality, of a particular measure."
Accordingly, when the grant of power is qualied, conditional or subject to
limitations, the issue on whether or not the prescribed qualications or conditions
have been met, or the limitations respected, it justiciable or non-political, the crux
of the problem being one of legality or validity of the contested act, not its wisdom.
Otherwise, said qualications, conditions or limitations particularly those
prescribed or imposed by the Constitution would be set at naught. What is more,
the judicial inquiry into such issue and the settlement thereof are the main
functions of courts of justice under the Presidential form of government adopted in
our 1935 Constitution, and the system of checks and balances, one of its basic
predicates. As a consequence, We have neither the authority nor the discretion to
decline passing upon said issue, but are under the ineluctable obligation made
particularly more exacting and peremptory by our oath, as members of the highest
Court of the land, to support and defend the Constitution to settle it. This
explains why, in Miller v. Johnson, 28 it was held that courts have a "duty, rather
than a power", to determine whether another branch of the government has "kept
within constitutional limits." Not satised with this postulate, the court went
farther and stressed that, if the Constitution provides how it may be amended as
it is in our 1935 Constitution "then, unless the manner is followed, the judiciary
as the interpreter of that constitution, will declare the amendment invalid." 29 In
fact, this very Court speaking through Justice Laurel, an outstanding authority on
Philippine Constitutional Law, as well as one of the highly respected and foremost
leaders of the Convention that drafted the 1935 Constitution declared, as early
as July 15, 1936, that "(i)n times of social disquietude or political excitement, the
great landmarks of the Constitution are apt to be forgotten or marred, if not entirely
obliterated. In cases of conict, the judicial department is the only constitutional
organ which can be called upon to determine the proper allocation of powers
between the several departments" of the government. 30
The Solicitor General has invoked Luther v. Borden 31 in support of his stand that
the issue under consideration is non-justiciable in nature. Neither the factual
background of that case nor the action taken therein by the Federal Supreme Court
has any similarity with or bearing on the cases under consideration.
Luther v. Borden was an action for trespass led by Luther with the Circuit Court of
the United States against Borden and others for having forcibly entered into

Luther's house, in Rhode Island, sometime in 1842. The defendants who were in
the military service of said former colony of England, alleged in their defense that
they had acted in obedience to the commands of a superior ocer, because Luther
and others were engaged in a conspiracy to overthrow the government by force and
the state had been placed by competent authority under Martial Law. Such
authority was the charter government of Rhode Island at the time of the
Declaration of Independence, for unlike other states which adopted a new
Constitution upon secession from England Rhode Island retained its form of
government under a British Charter, making only such alterations, by acts of the
Legislature, as were necessary to adapt it to its subsequent condition as an
independent state. It was under this form of government when Rhode Island joined
other American states in the Declaration of Independence and, by subsequently
ratifying the Constitution of the United States, became a member of the Union. In
1843, it adopted a new Constitution.
Prior thereto, however, many citizens had become dissatised with the charter
government. Memorials addressed by them to the Legislature having failed to bring
about the desired eect, meetings were held and associations formed by those
who belonged to this segment of the population which eventually resulted in a
convention called for the drafting of a new Constitution to be submitted to the
people for their adoption or rejection. The convention was not authorized by any law
of the existing government. The delegates to such convention framed a new
Constitution which was submitted to the people. Upon the return of the votes cast
by them, the convention declared that said Constitution had been adopted and
ratied by a majority of the people and became the paramount law and
Constitution of Rhode Island.
The charter government, which was supported by a large number of citizens of the
state, contested, however, the validity of said proceedings. This notwithstanding,
one Thomas W. Dorr, who had been elected governor under the new Constitution of
the rebels, prepared to assert authority by force of arms, and many citizens
assembled to support him. Thereupon, the charter government passed an Act
declaring the state under Martial Law and adopted measures to repel the
threatened attack and subdue the rebels. This was the state of aairs when the
defendants, who were in the military service of the charter government and were to
arrest Luther, for engaging in the support of the rebel government which was
never able to exercise any authority in the state broke into his house.
Meanwhile, the charter government had taken measures to call its own convention
to revise the existing form of government. Eventually, a new constitution was
drafted by a convention held under the authority of the charter government, and
thereafter was adopted and ratied by the people. "(T)he times and places at which
the votes were to be persons who were to be given, the receive and return them
qualifications of the voters having all been previously authorized and provided for by
law passed by the charter government," the latter formally surrendered all of its
power to the new government, established under its authority, in May 1843, which
had been in operation uninterruptedly since then.

About a year before, or in May 1842, Dorr, at the head of a military force, had made
an unsuccessful attempt to take possession of the state arsenal in Providence, but
he was repulsed, and, after an "assemblage of some hundreds of armed men under
his command at Chepatchet in the June following which dispersed upon approach of
the troops of the old government, no further eort was made to establish" his
government. ". . . until the Constitution of 1843" adopted under the auspices of
the charter government "went into operation, the charter government continued
to asset its authority and exercise its powers and to enforce obedience throughout
the state . . ."

Having oered to introduce evidence to prove that the constitution of the rebels had
been ratied by the majority of the people, which the Circuit Court rejected, apart
from rendering judgment for the defendants, the plainti took the case for review
to the Federal Supreme Court which armed the action of the Circuit Court,
stating:
"It is worthy of remark, however, when we are referring to the authority of
State decisions, that the trial of Thomas W. Dorr took place after the
constitution of 1843 when into operation. The judges who decided that the
case held their authority under that constitution; and it is admitted on all
hands that it was adopted by the people of the State, and is the lawful and
established government. It is the decision, therefore, of a State court,
whose judicial authority to decide upon the constitution and laws of Rhode
Island is not questioned by either party to this controversy, although the
government under which it acted was framed and adopted under the
sanction and laws of the charter government.
"The point, then, raised here has been already decided by the courts of
Rhode Island. The question relates, altogether, to the constitution and laws
of that State; and the well settled rule in this court is, that the courts of the
United States adopt and follow the decisions of the State courts in questions
which concern merely the constitution and laws of the State.
"Upon what ground could the Circuit Court of United States which tried this
case have departed from this rule, and disregarded and overruled the
decisions of the courts of Rhode Island? Undoubtedly the courts of the
United States have certain powers under the Constitution and laws of the
United States which do not government has been lawfully established, which
the courts of State disown and repudiate, is not one of them. Upon such a
question the courts of the United States are bound to follow the decisions of
the State tribunals, and must therefore regard the charter government as
the lawful and established government during the time of this contest." 32

It is thus apparent that the context within which the case of Luther v. Borden was
decided is basically and fundamentally dierent from that of the cases at bar. To
begin with, the case did not involve a federal question, but one purely municipal in
nature. Hence, the Federal Supreme Court was "bound to follow the decisions of the
State tribunals" of Rhode Island upholding the constitution adopted under the

authority of the charter government. Whatever else was said in that case
constitutes, therefore, an obiter dictum. Besides, no decision analogous to that
rendered by the State Court of Rhode Island exists in the cases at bar. Secondly, the
states of the Union have a measure of internal sovereignty upon which the Federal
Government may not encroach, whereas ours is a unitary form of government,
under which our local governments derive their authority from the national
government. Again, unlike our 1935 Constitution, the charter or organic law of
Rhode Island contained no provision on the manner, procedure or conditions for its
amendment.
Then, too, the case of Luther v. Borden hinged more on the question of recognition
o f government, than on recognition of constitution, and there is a fundamental
dierence between these two (2) types of recognition, the rst being generally
conceded to be a political question, whereas the nature of the latter depends upon a
number of factors, one of them being whether the new Constitution in force at the
time of the purported ratication of the former, which is essentially a justiciable
question. There was, in Luther v. Borden, a conict between two (2) rival
governments, antagonistic to each other, which is absent in the present cases. Here,
the Government established under the 1935 Constitution is the very same
government whose Executive Department has urged the adoption of the new or
revised Constitution proposed by the 1971 Constitutional Convention and now
alleges that it has been ratified by the people.
In short, the views expressed by the Federal Supreme Court in Luther v. Borden,
decided in 1849, on matters other than those referring to its power to review
decisions of a state court concerning the constitution and government of that state,
not the Federal Constitution or Government, are manifestly neither controlling, nor
even persuasive in the present cases, having as the Federal Supreme Court
admitted no authority whatsoever to pass upon such matters or to review
decisions of said state court thereon. In fact, referring to that case, the Supreme
Court of Minnesota had the following to say:
"Luther v. Borden, 7 How. 1, 12 L. Ed. 581, is always cited by those who
assert that the courts have no power to determine questions of a political
character. It is interesting historically, but it has not the slightest application
to the case at bar. When carefully analyzed, it appears that it merely
determines that the federal courts will accept as nal and controlling a
decision of the highest court of a state upon a question of the construction
of the Constitution of the state . . ." 33

Baker v. Carr, 34 cited by respondents, involved an action to annul a Tennessee

statute apportioning the seats in the General Assembly among the counties of the
State, upon the theory that the legislation violated the equal protection clause. A
district court dismissed the case upon the ground, among others, that the issue was
a political one, but, after a painstaking review of the jurisprudence on the matter,
the Federal Supreme Court reversed the appealed decision and held that said issue
was justiciable and non-political, inasmuch as: ". . . (d)eciding whether a matter has
in any measure been committed by the Constitution to another branch of
government, or whether the action of that branch exceeds whatever authority has

been committed, is itself a delicate exercise in constitutional interpretation, and is a

responsibility of this Court as ultimate interpreter of the Constitution . . ."
Similarly, in Powell v. McCormack, 35 the same Court, speaking through then Chief
Justice Warren, reversed a decision of the Court of Appeals of New York arming
that of a Federal District Court, dismissing Powell's action for a declaratory
judgment declaring thereunder that he whose qualications were uncontested
had been unlawfully excluded from the 90th Congress of the U.S. Said dismissal
was predicated upon the ground, inter alia, that the issue was political, but the
Federal Supreme Court held that it was clearly a justiciable one.
The Supreme Court of Minnessota undertook a careful review of American
jurisprudence on the matter. Owing to the lucidity of its appraisal thereof, We
append the same to this opinion as Annex A thereof.
After an exhaustive analysis of the cases on this subject, the Court concluded:
"The authorities are thus practically uniform in holding that whether a
constitutional amendment has been properly adopted according to the
requirements of an existing Constitution is a judicial question. There can be
little doubt that the consensus of judicial opinion is to the eect that it is the
absolute duty of the judiciary to determine whether the Constitution has
been amended in the manner required by the Constitution, unless a special
tribunal has been created to determine the question; and even then many of
the courts hold that the tribunal cannot be permitted to illegally amend the
organic law . . . " 36

In the light of the foregoing, and considering that Art. XV of our 1935 Constitution
prescribes the method or procedure for its amendment, it is clear to my mind that
the question whether or not the revised Constitution drafted by the 1971
Constitutional Convention has been ratied in accordance with said Art. XV is a
justiciable one and non-political in nature, and that it is not only subject to judicial
inquiry, but, also, that it is the Court's bounden duty to decide such question.
The Supreme Court of the United States has meaningfully postulated that "the
courts cannot reject as 'no law suit'" because it allegedly involves a political
question "a bona de controversy as to whether some action denominated
'political' exceeds constitutional authority.'" 37
III

Has the proposed new or revised Constitution been ratied conformably to said Art.
XV of the 1935 Constitution?
Petitioners in L-36142 maintain the negative view, upon the ground: 1) that the
President "is without authority to create the Citizens' Assemblies" through which,
respondents maintain, the proposed new Constitution has been ratied; 2) that said
Assemblies "are without power to approve the proposed Constitution"; 3) that the
President "is without power to proclaim the ratication by the Filipino people of the
proposed Constitution"; and 4),that "the election held (in the Citizens' Assemblies)

to ratify the proposed Constitution was not a free election, hence null and void."
Apart from substantially reiterating these grounds support of said negative view,
the petitioners in L-36164 contend: 1) that the President "has no power to call a
plebiscite for the ratication or rejection" of the proposed Constitution or "to
appropriate funds for the holding of said plebiscite"; 2) that the proposed new or
revised Constitution "is vague and incomplete," as well as "contains provisions
which are beyond the powers of the 1971 Convention to enact," thereby rendering
it "unt for . . . submission to the people;" 3) that "(t)he period of time between
November 30, 1972 when the 1972 draft was approved and January 11-15, 1973,"
when the Citizens' Assemblies supposedly ratied said draft, "was too short, worse
still, there was practically no time for the Citizens' Assemblies to discuss the merits
of the Constitution which the majority of them have not read and which they never
knew would be submitted to them for ratication until they were asked the
question 'do you approve of the New Constitution?' during the said days of the
voting"; and that "(t)here was altogether no freedom of discussion and no
opportunity to concentrate on the matter submitted to them when the 1972 draft
was supposedly submitted to the Citizens' Assemblies for ratification."

Petitioner in L-36236 added, as arguments in support of the negative view, that: 1)

"(w)ith a government-controlled press, there can never be a fair and proper
submission of the proposed Constitution to the people"; and 2) Proclamation No.
1102 is null and void "(i)nasmuch as the ratication process" prescribed "in the
1935 Constitution was not followed."
Besides adopting substantially some of the grounds relied upon by the petitioners in
the above mentioned cases, the petitioners in L-36283 argue that "(t)he creation of
the Citizens' Assemblies as the vehicle for the ratication of the Constitution was a
deception upon the people since the President announced the postponement of the
January 15, 1973 plebiscite to either February 19 or March 5, 1973." 38
The reasons adduced by the petitioners in L-36165 in favor of the negative view
have already been set forth earlier in this opinion. Hence, it is unnecessary to
reproduce them here. So it is, with respect to the positions taken in L-36165 by
counsel for therein respondents Gil J. Puyat and Jose Roy although more will be
said later about them and by the Solicitor General, on behalf of the other
respondents in that case and the respondents in the other cases.
1.What is the procedure prescribed by the 1935 Constitution for its amendment?
Under section 1 of Art. XV of said Constitution, three (3) steps are essential,
namely:
1.That the amendments to the Constitution be proposed either by Congress or by a
convention called for that purpose, "by a vote of three-fourths of all the Members of
the Senate and the House of Representatives voting separately," but "in joint
session assembled";

2.That such amendments be "submitted to the people for their ratication" at an

"election"; and
3.That such amendments be "approved by a majority of the votes cast" in said
election.
Compliance with the rst requirement is virtually conceded, although the
petitioners in L-36164 question the authority of the 1971 Constitutional
Convention to incorporate certain provisions into the draft of the new or revised
Constitution The main issue in these ve (5) cases hinges, therefore, on whether or
not the last two (2) requirements have been complied with.
2.Has the contested draft of the new or revised Constitution been "submitted to the
people for their ratification" conformably to Art. XV of the Constitution?
In this connection, other provisions of the 1935 Constitution concerning "elections"
must, also, be taken into account, namely, section 1 of Art. V and Art. X of said
Constitution. The former reads:
"Section 1.Surage may be exercised by male citizens of the Philippines not
otherwise disqualied by law, who are twenty-one years of age or over and
are able to read and write, and who shall have resided in the Philippines for
one year and in the municipality wherein they propose to vote for at least six
months preceding the election. The National Assembly shall extend the right
of surage to women, if in a plebiscite which shall be held for that purpose
within two years after the adoption of this Constitution, not less than three
hundred thousand women possessing the necessary qualifications shall vote
affirmatively on the question."

Sections 1 and 2 of Art. X of the Constitution ordain in part:

"Section 1.There shall be an independent Commission on
Elections composed of a Chairman and two other Members to be
appointed by the President with the consent of the Commission on
Appointments, who shall hold oce for a term of nine years and may
not be reappointed . . .
"xxx xxx xxx
"Sec. 2.The Commission on Elections shall have exclusive charge of the
enforcement and administration of all laws relative to the conduct of
elections and shall exercise all other functions which may be conferred upon
it by law. It shall decide, save those involving the right to vote, all
administrative questions, aecting elections, including the determination of
the number and location of polling places, and the appointment of election
inspectors and of other election ocials. All law enforcement agencies and
instrumentalities of the Government, when so required by the Commission,
shall act as its deputies for the purpose of insuring free, orderly, and honest
elections . The decisions, orders, and rulings the Commission shall be subject
to review by the Supreme Court.

"xxx xxx xxx" 39

a.Who may vote in a plebiscite under Art. V of the Constitution?

Petitioners maintain that section 1 of Art. V of the Constitution is a limitation upon
the exercise of the right of surage. They claim that no other persons than "citizen
of the Philippines not otherwise disqualied by law, who are twenty-one years of
age or over and are able to read and write, and who shall have resided in the
Philippines for one year and in the municipality wherein they propose to vote for at
least six months preceding the election," may exercise the right of surage in the
Philippines. Upon the other hand, the Solicitor General contends that said provision
merely guarantees the right of surage to persons possessing the aforementioned
qualifications and none of the disqualifications, prescribed by law, and that said right
may be vested by competent authorities in persons lacking some or all of the
aforementioned
qualications,
and possessing some of the aforesaid
disqualications. In support of this view, he invokes the permissive nature of the
language "(s)urage may be exercised" used in section 1 of Art. V of the
Constitution, and the provisions of the Revised Barrio Charter, Republic Act No.
3590, particularly sections 4 and 6 thereof, providing that citizens of the Philippines
"eighteen years of age or over," who are registered in the list of barrio assembly
members, shall be members thereof and may participate as such in the plebiscites
prescribed in said Act.
I cannot accept the Solicitor General's theory. Art. V of the Constitution declares
who may exercise the right of surage, so that those lacking the qualications
therein prescribed may not exercise such right. This view is borne out by the records
of the Constitutional Convention that drafted the 1935 Constitution. Indeed,
section 1 of Art. V of the 1935 Constitution was largely based on the report of the
committee on surage of the Convention that drafted said Constitution, which
report was, in turn, "strongly inuenced by the election laws then in force in the
Philippines . . ." 40 Said committee had recommended: 1) "That the right of surage
should be exercised only by male citizens of the Philippines." 2) "That it should be
limited to those who could read and write." 3) "That the duty to vote should be
m a d e obligatory." It appears that the rst recommendation was discussed
extensively in the Convention, and that, by way of compromise, it was eventually
agreed to include, in section 1 of Art. V of the Constitution, the second sentence
thereof imposing upon the National Assembly, established by the original
Constitution instead of the bicameral Congress subsequently created by
amendment of said Constitution the duty to "extend the right of surage to
women, if in a plebiscite to be held for that purpose within two years after the
adoption of this Constitution, not less than three hundred thousand women
possessing the necessary qualifications shall vote affirmatively on the question." 41
The third recommendation on "compulsory" voting was, also, debated upon rather
extensively, after which it was rejected by the Convention. 42 This accounts, in my
opinion, for the permissive language used in the rst sentence of said Art. V. Despite
some debates on the age qualication amendments having been proposed to
reduce the same to 18 or 20, which were rejected, and the residence qualication,

as well as the disqualications to the exercise of the right of surage the second
recommendation limiting the right of surage who could "read and write" was in
the language of Dr. Jose M. Aruego, one of the Delegates to said Convention
"readily approved in the Convention without any dissenting vote," although there
was some debate on whether the Fundamental Law should specify the language or
dialect that the voter could read and write, which was decided in the negative. 43
What is relevant to the issue before Us is the fact that the constitutional provision
under consideration was meant to be and is a grant or conferment of a right to
persons possessing the qualications and none of the disqualications therein
mentioned, which in turn, constitute a limitation of or restriction to said right, and
cannot, accordingly, be dispensed with, except by constitutional amendment.
Obviously, every such constitutional grant or conferment of a right is necessarily a
negation of the authority of Congress or of any other branch of the Government to
deny said right to the subject of the grant and, in this sense only, may the same
partake of the nature of a guarantee. But, this does not imply not even remotely,
that the Fundamental Law allows Congress or anybody else to vest in those lacking
the qualifications and having the disqualifications mentioned in the Constitution the
right of suffrage.
At this juncture, it is noteworthy that the committee on surage responsible for the
adoption of section 1 of Art. V of the Constitution was "strongly inuenced by the
election laws then in force in the Philippines." Our rst Election Law was Act 1582,
passed on January 9, 1907, which was partly amended by Acts 1669, 1709, 1726
and 1768, and incorporated into the Administrative Code of 1916 Act 2657 as
chapter 20 thereof, and then in the Administrative Code of 1971 Act 2711 as
chapter 18 thereof, which, in turn, was amended by Act 3387, approved on
December 3, 1927. Sections 431 and 432 of said Code of 1917, prescribing,
respectively, the qualications for and disqualications from voting, are quoted
below. 44 In all of these legislative acts, the provisions concerning the qualications
of voters partook of the nature of a grant or recognition of the right of surage, and.
hence, of a denial thereof to those who lacked the requisite qualications and
possessed any of the statutory disqualications. In short, the history of section 1,
Art. V of the Constitution, shows beyond doubt that the same conferred not
guaranteed the authority to exercise the right of surage to persons having the
qualications prescribed therein and none of the disqualications to be specied in
ordinary laws and, by necessary implication, denied such right to those lacking any
of said qualifications or having any of the aforementioned disqualifications.

This view is further bolstered by the fact that the 1971 Constitutional Convention
sought the submission to a plebiscite of a "partial amendment" to said section 1 of
Art. V of the 1935 Constitution, by reducing the voting age from twenty-one (21)
years to eighteen (18) years, which, however, did not materialize on account of the
decision of this Court in Tolentino v. Commission on Elections, 45 granting the writs
of prohibition and injunction therein applied for, upon the ground that, under the
Constitution, all of the amendments adopted by the Convention should be

submitted in "an election" or a single election, not separately or in several or

distinct elections, and that the proposed amendment sought to be submitted to a
plebiscite was not even a complete but a "partial amendment" of said section 1,
which could be amended further, after its ratication had the same taken place, so
that the aforementioned partial amendment was, for legal purposes, no more than
a provisional or temporary amendment. Said partial amendment was predicated
upon the generally accepted contemporary construction that, under the 1935
Constitution, persons below twenty-one (21) years of age could not exercise the
right of suffrage, without a previous amendment of the Constitution.
Upon the other hand, the question, whether 18-year-old members of barrio
assemblies may vote in barrio as plebiscites is, to say the least, a debatable one.
Indeed, there seems to be a conict between the last paragraph of said section 6 of
Rep. Act No. 3590, 46 pursuant to which the "majority vote of all the barrio
assembly members" (which include all barrio residents 18 years of age or over, duly
registered in the list of barrio assembly members) is necessary for the approval, in
an assembly plebiscite, of "any budgetary, supplemental appropriations or special
tax ordinances," whereas, according to the paragraph preceding the penultimate
one of said section, 47 "(a)ll duly registered barrio assembly members qualied to
vote" who, pursuant to section 10 of the same Act, must be citizens "of the
Philippines, twenty-one years of age or over, able to read and write," and residents
of the barrio "during the six months immediately preceding the election, duly
registered in the list of voters" and "not otherwise disqualied . . ." just like the
provisions of the present and past election codes of the Philippines and Art. V of the
1935 Constitution "may vote in the plebiscite."
I believe, however, that the apparent conict should be resolved in favor of the 21year-old members of the assembly, not only because this interpretation is in accord
with Art. V of the Constitution, but, also, because provisions of a Constitution
particularly of a written and rigid one, like ours are generally accorded a
mandatory status unless the intention to the contrary is manifest, which is not so
as regards said Art. V for otherwise they would not have been considered
suciently important to be included in the Fundamental Law of the land. 48
Besides, it would be illogical, if not absurd, to believe that Republic Act No. 3590
requires, for the most important measures for which it demands in addition to
the favorable action of the barrio council the approval of the barrio assembly
through a plebiscite, lesser qualications than those prescribed in dealing with
ordinary measures for which such plebiscite need not be held.
It is similarly inconceivable that those who drafted the 1935 Constitution intended
section 1 of Art. V thereof to apply only to elections of public ocers, not to
plebiscites for the ratication of amendments to the Fundamental Law or a revision
thereof, or of an entirely new Constitution, and to permit the legislature to require
lesser qualications for such ratication, notwithstanding the fact that the subject
thereof is much more important if not fundamental, such as the basic changes
introduced in the draft of the revised Constitution adopted by the 1971
Constitutional Convention, which are intended to be in force permanently, or, at
least, for many decades, and to aect the way of life of the nation and,

accordingly demands greater experience and maturity on the part of the electorate
than that required for the election of public ocers, 49 whose average term ranges
from 2 to 6 years.
It is admitted that persons 15 years of age or over, but below 21 years, regardless of
whether or not they possessed the other qualications laid down in both the
Constitution and the present Election Code, 50 and of whether or not they are
disqualied under the provisions of said Constitution and Code, 51 or those of
Republic Act No. 3590, 52 have participated and voted in the Citizens' Assemblies
that have allegedly ratied the new or revised Constitution drafted by the 1971
Constitutional Convention.
In fact, according to the latest ocial data, the total number of registered voters 21
years of age or over in the entire Philippines, available in January 1973, was less
than 12 million. Yet, Proclamation No. 1102 states that 14,976,561 "members of all
the Barangays (Citizens Assemblies) voted for the adoption of the proposed
Constitution, as against . . . 743,869 who voted for its rejection," whereas, on the
question whether or not the people still wanted a plebiscite to be called to ratify the
new Constitution, ". . . 14,298,814 answered that there was no need for a plebiscite
and that the vote of the Barangays (Citizens Assemblies) should be considered as a
vote in a plebiscite." In other words, it is conceded that the number of people who
allegedly voted at the Citizens' Assemblies for exceeded the number of registered
voters under the Election Code in force in January 1973.
It is thus clear that the proceedings held in such Citizens' Assemblies and We
have more to say on this point in subsequent pages were fundamentally
irregular, in that persons lacking the qualications prescribed in section 1 of Art. V of
the Constitution were allowed to vote in said Assemblies. And, since there is no
means by which the invalid votes of those less than 21 years of age can be
separated or segregated from those of the qualied voters, the proceedings in the
Citizens' Assemblies must be considered null and void. 53
It has been held that "(t)he power to reject an entire poll . . . should be exercised . . .
in a case where it is impossible to ascertain with reasonable certainty the true
vote," as where "it is impossible to separate the legal votes from the illegal or
spurious . . ." 54
In Usman v. Commission on Elections, et al., 55 We held:
"Several circumstances, defying exact description and dependent mainly on
the factual milieu of the particular controversy, have the eect of destroying
the integrity and authenticity of disputed election returns and of avoiding
their prima facie value and character. If satisfactorily proven, although in a
summary proceeding, such circumstances as alleged by the aected or
interested parties, stamp the election returns with the indelible mark of
falsity and irregularity, and, consequently, of unreliability, and justify their
exclusion from the canvass."

Then, too, the 1935 Constitution requires "a majority of the votes cast" for a

proposed amendment to the Fundamental Law to be "valid" as part thereof, and the
term "votes cast" has a well-settled meaning.
"The term 'votes cast' . . . was held in Smith v. Renville County
Commissioners, 65 N.W. 956, 64 Minn. 16, to have been used as an
equivalent of 'ballots cast.'" 56
"The word 'cast' is defined as 'to deposit formally or officially.'" 57
"It seems to us that a vote is cast when a ballot is deposited indicating a
'choice.' . . . The word 'cast' means 'deposit (a ballot) formally or officially . . .'
". . . In simple words, we would dene a 'vote cast' as the exercise on a
ballot of the choice of the voter on the measure proposed." 58

In short, said Art. XV envisages with the term "votes cast" choices made on
ballots not orally or by raising hands by the persons taking part in plebiscites.
This is but natural and logical, for, since the early years of the American regime, we
had adopted the Australian Ballot System, with its major characteristics, namely,
uniform ocial ballots prepared and furnished by the Government and secrecy in
the voting, with the advantage of keeping records that permit judicial inquiry, when
necessary, into the accuracy of the election returns. And the 1935 Constitution has
been so consistently interpreted in all plebiscites for the ratication or rejection of
proposed amendments thereto, from 1935 to 1967. Hence, the viva voce voting in
the Citizens' Assemblies was and is null and void ab initio.
b.How should the plebiscite be held? (COMELEC supervision indispensable; essential
requisites)
Just as essential as compliance with said Art. V of the 1935 Constitution is that of
Art. X thereof, particularly its sections 1 and 2. Indeed, section 1 provides that "
(t)here shall be an independent Commission on Elections . . ." The point to be
stressed here is the term "independent." Indeed, why was the term used?
In the absence of said constitutional provision as to the independence of the
Commission, would it have been dependent upon either Congress or the Judiciary?
The answer must be in the negative, because the functions of the Commission
"enforcement and administration" of election laws are neither legislative nor
judicial in nature, and, hence, beyond the eld allocated to either Congress or courts
of justice. Said functions are by their nature essentially executive, for which reason,
the Commission would be under the "control" of the President, pursuant to section
10, paragraph (1) of Art. VII of the Constitution, if Art. X thereof did not explicitly
declare that it (the Commission) is an "independent" body. In other words, in
amending the original 1935 Constitution, by inserting therein said Art. X, on the
Commission on Elections, the purpose was to make said Commission independent
principally of the Chief Executive.

And the reason therefor is, also, obvious. Prior to the creation of the Commission on

Elections as a constitutional organ, election laws in the Philippines were enforced by

the then Department of the Interior, through its Executive Bureau, one of the
oces under the supervision and control of said Department. The same like other
departments of the Executive Branch of the Government was, in turn, under the
control of the Chief Executive, before the adoption of the 1935 Constitution, and
had been until the abolition of said Department, sometime ago under the
control of the President of the Philippines, since the eectivity of said Fundamental
Law. Under the provisions thereof, the Executive could so use his power of control
over the Department of the Interior and its Executive Bureau as to place the
minority party at such a great, if not decisive, disadvantage, as to deprive it, in
eect, of the opportunity to defeat the political party in power, and, hence, to
enable the same to perpetuate itself therein. To forestall this possibility, the original
1935 Constitution was amended by the establishment of the Commission on
Elections as a constitutional body independent primarily of the President of the
Philippines.
The independence of the Commission was sought to be strengthened by the long
term of oce of its members nine (9) years, except those rst appointed 59 the
longest under the Constitution, second only to that of the Auditor General 60 ; by
providing that they may not be removed from oce except by impeachment,
placing them, in this respect, on the same plane as the President, the Vice-President,
the Justices of the Supreme Court and the Auditor General; that they may not be
reappointed; that their salaries "shall be neither increased nor diminished during
their term of oce"; that the decisions of the Commission "shall be subject to
review by the Supreme Court" only 61 ; that "(n)o pardon, parole, or suspension of
sentence for the violation of any election law may be granted without the favorable
recommendation of the Commission" 62 ; and that its chairman and members "shall
not, during their continuance in oce, engage in the practice of any profession, or
intervene, directly or indirectly, in the management or control of any private
enterprise which in anyway may be aected by the functions of their oce; nor
shall they, directly or indirectly, be nancially interested in any contract with the
Government or any subdivision or instrumentality thereof." 63 Thus, the framers of
the amendment to the original Constitution of 1935 endeavored to do everything
possible to protect and insure the independence of each member of the
Commission.
With respect to the functions thereof as a body, section 2 of said Art. X ordains that
"(t)he Commission on Elections shall have exclusive charge of the enforcement and
administration of all laws relative to the conduct of elections," apart from such other
"functions which may be conferred upon it by law." It further provides that the
Commission "shall decide, save those involving the right to vote, all administrative
questions, aecting elections, including the determination of the number and
location of polling places, and the appointment of election inspectors and of other
election ocials." And, to forestall possible conicts or frictions between the
Commission, on the one hand, and the other oces or agencies of the executive
department, on the other, said section 2 postulates that "(a)ll law enforcement
agencies and instrumentalities of the Government, when so required by the
Commission, shall act as its deputies for the purpose of insuring free, orderly, and

honest elections." Not satised with this, it declares, in eect, that "(t)he decisions,
orders, and rulings of the Commission" shall not be subject to review, except by the
Supreme Court.
In accordance with the letter and spirit of said Art. X of the Constitution, Rep. Act
No. 6388, otherwise known as Election Code of 1971, implements the
constitutional powers of the Commission on Elections and grants additional powers
thereto, some of which are enumerated in sections 5 and 6 of said Act, quoted
below. 64 Moreover, said Act contains, inter alia, detailed provisions regulating
contributions and other (corrupt) practices; the establishment of election precincts;
the designation and arrangement of polling places, including voting booths, to
protect the secrecy of the ballot; the formation of lists of voters, the identication
and registration of voters, the proceedings therefor, as well as for the inclusion in, or
exclusion or cancellation from said list and the publication thereof; the
establishment of municipal, provincial and national les of registered voters; the
composition and appointment of boards of election inspectors; the particulars of the
ocial ballots to be used and the precautions to be taken to insure the authenticity
thereof; the procedure for the casting of votes; the counting of votes by boards of
inspectors; the rules for the appreciation of ballots and the preparation and
disposition of election returns; the constitution and operation of municipal,
provincial and national boards of canvassers; the representation of political parties
and/or their candidates in each election precinct; the proclamation of the results,
including, in the case of election of public ocers, election contests; and the
jurisdiction of courts of justice in cases of violations of the provisions of said Election
Code and penalties for such violations.
Few laws may be found with such a meticulous and elaborate set of provisions
aimed at "insuring free, orderly, and honest elections," as envisaged in section 2 of
Art. X of the Constitution. Yet, none of the foregoing constitutional and statutory
provisions was followed by the so-called Barangays or Citizens' Assemblies. And no
reasons have been given, or even sought to be given therefor. In many, if not most,
instances, the elections were held a viva voce, thus depriving the electorate of the
right to vote secretly one of the most fundamental and critical features of our
election laws from time immemorial particularly at a time when the same was of
utmost importance, owing to the existence of Martial Law .
In Glenn v. Gnau, 65 involving the casting of many votes, openly, without complying
with the requirements of the law pertinent thereto, it was held that the "election
ocers" involved "cannot be too strongly condemned" therefor and that if they
'could legally dispense with such requirement xxx they could with equal propriety
dispense with all of them, including the one that the vote shall be by secret ballot,
or even by ballot at all . . ."
Moreover, upon the formal presentation to the Executive of the proposed
Constitution drafted by the 1971 Constitutional Convention, or on December 1,
1972, Presidential Decree No. 73 (on the validity of which was contested in the
plebiscite cases, as well as in the 1972 habeas corpus case 66 We need not, in the
cases at bar, express any opinion) was issued, calling a plebiscite, to be held on

January 15, 1973, at which the proposed Constitution would be submitted to the
people for ratication or rejection; directing the publication of said proposed
Constitution; and declaring, inter alia, that "(t)he provisions of the Election Code of
1971, insofar as they are not inconsistent" with said decree excepting those
"regarding rights and obligations of political parties and candidates" "shall apply
to the conduct of the plebiscite." Indeed, section 2 of said Election Code of 1971
provides that "(a)ll elections of public ocers except barrio ocials and plebiscites
shall be conducted in the manner provided by this Code." General Order No. 20,
dated January 7, 1973, postponing, until further notice, "the plebiscite scheduled to
be held on January 15, 1973," said nothing about the procedure to be followed in
the plebiscite to take place at such notice, and no other order or decree has been
brought to Our attention, expressly or impliedly repealing the provisions of
Presidential Decree No. 73, insofar as said procedure is concerned.
Upon the other hand, said General Order No. 20 expressly suspended "the provisions
of Section 3 of Presidential Decree No. 73 insofar as they allow free public discussion
of the proposed Constitution . . . temporarily suspending the eects of Proclamation
No. 1081 for the purposes of free and open debate on the proposed Constitution . . ."
This specic mention of the portions of the decrees or orders or instructions
suspended by General Order No. 20 necessarily implies that all other portions of said
decrees, orders or instructions and, hence, the provisions of Presidential Decree
No. 73 outlining the procedure to be followed in the plebiscite for the ratication or
rejection of the proposed Constitution remained in force, assuming that said
Decree is valid.
It is claimed that by virtue of Presidential Decree No. 86-A the text of which is
quoted below 67 the Executive declared, inter alia, that the collective views
expressed in the Citizens' Assemblies "shall be considered in the formulation of
national policies or programs and, wherever practicable, shall be translated into
concrete and specic decision"; that such Citizens' Assemblies "shall consider vital
national issues . . . like the holding of the plebiscite on the new Constitution . . . and
others in the future, which shall serve as guide or basis for action or decision by the
national government"; and that the Citizens' Assemblies "shall conduct between
January 10 and 15, 1973, a referendum on important national issues, including
those specied in paragraph 2 hereof, and submit the results thereof to the
Department of Local Governments and Community Development immediately
thereafter, . . ." As in Presidential Decree No. 86, this Decree No. 86-A does not and
cannot exclude the exercise of the constitutional supervisory power of the
Commission on elections or its participation in the proceedings in said Assemblies, if
the same had been intended to constitute the "election" or plebiscite required in Art.
V of the 1935 Constitution. The provision of Presidential Decree No. 86-A directing
the immediate submission of the result thereof to the Department of Local
Governments and Community Development is not necessarily inconsistent with,
and must be subordinate to the constitutional power of the Commission on
Elections to exercise its "exclusive" authority over the "enforcement and
administration of all laws relative to the conduct of elections," if the proceedings in
the Assemblies would partake of the nature of an "election" or plebiscite for the
ratification or rejection of the proposed Constitution.

We are told that Presidential Decree No. 86 was further amended by Presidential
Decree No. 86-B, dated January 7, 1973, ordering "that important national issues
shall from time to time be referred to the Barangays (Citizens Assemblies) for
resolution in accordance with Presidential Decree No. 86-A dated January 5, 1973
and that the initial referendum shall include the matter of ratication of the
Constitution proposed by the 1971 Constitutional Convention" and that "(t)he
Secretary of the Department of Local Governments and Community Development
shall insure the implementation of this order." As in the case of Presidential Decrees
Nos. 86 and 86-A, the foregoing directives do not necessarily exclude the exercise of
the powers vested by the 1935 Constitution in the Commission on Elections, even if
the Executive had the authority to repeal Art. X of our Fundamental Law which
he does not possess. Copy of Presidential Decree No. 86-B is appended hereto as
Annex B hereof.
The point is that, such of the Barrio Assemblies as were held took place without the
intervention of the Commission on Elections, and without complying with the
provisions of the Election Code of 1971 or even of those of Presidential Decree No.
73. What is more, they were held under the supervision of the very ocers and
agencies of the Executive Department sought to be excluded therefrom by Art. X of
the 1935 Constitution. Worse still, said ocers and agencies of the Executive
Department, who had been publicly urged and ostensibly promised to work for the
ratication of the proposed revised Constitution would be favored thereby, owing to
the practically indenite extension of their respective terms of oce in consequence
of section 9 of the Transitory Provisions, found in Art. XVII of the proposed
Constitution, without any elections therefor. And the procedure therein mostly
followed is such that there is no reasonable means of checking the accuracy of the
returns led by the ocers who conducted said plebiscites. This is another patent
violation of Art. X of the Constitution which can hardly be sanctioned. And, since the
provisions of this article form part of the fundamental scheme set forth in the 1935
Constitution, as amended, to insure the "free, orderly, and honest" expression of the
people's will, the aforementioned violation thereof renders null and void the
contested proceedings or alleged plebiscite in the Citizens' Assemblies, insofar as the
same are claimed to have ratied the revised Constitution proposed by the 1971
Constitutional Convention. ". . . (a)ll the authorities agree that the legal denition
of an election, as well as that which is usually and ordinarily understood by the
term, is a choosing or a selection by those having a right to participate (in the
selection) of those who shall ll the oces, or of the adoption or rejection of any
public measures aecting the territory involved. 15 Cyc. 279; Lewis v. Boynton, 25
Colo. 486, 55 Pac. 732; Saunders v. Haynes, 13 Cal. 145; Seaman v. Baughman, 82
Iowa 216, 47 N.W. 1091, 11 L.R.A. 354; State v. Hirsh, 125 Ind. 207, 24 N.E. 1062,
9 L.R.A. 170; Bouvier's Law Dictionary." 68
IV

Has the proposed Constitution aforementioned

been approved by a majority of the people in
the Citizen's Assemblies allegedly held

throughout the Philippines?

Respondents maintain the armative, relying upon Proclamation No. 1102, the
validity of which is precisely being contested by petitioners herein. Respondents
claim that said proclamation is "conclusive" upon this Court, or is, at least, entitled
to full faith and credence, as an enrolled bill; that the proposed Constitution has
been, in fact, ratied, approved or adopted by the "overwhelming" majority of the
people; that Art. XV of the 1935 Constitution has thus been "substantially"
complied with; and that the Court should refrain from passing upon the validity of
Proclamation No. 1102, not only because such question is political in nature, but,
also, because should the Court invalidate the proclamation, the former would, in
effect, veto the action of the people in whom sovereignty resides and from whom its
powers are derived.
The major aw in this process of rationalization is that it assumes, as a fact, the
very premise on which it is predicated, and which, moreover, is contested by the
petitioners. As the Supreme Court of Minnessota has aptly put it
". . . every ocer under a constitutional government must act
according to law and subject to its restrictions, and every departure
therefrom or disregard thereof must subject him to the restraining and
controlling power of the people, acting through the agency of the
judiciary; for it must be remembered that the people act through
courts , as well as through the executive or the Legislature. One
department is just as representative as the other, and the judiciary is
the department which is charged with the special duty of determining
the limitations which the law places upon all official action. . . ."

Accordingly, the issue boils down to whether or not the Executive acted within the
limits of his authority when he certied in Proclamation No. 1102 "that the
Constitution proposed by the nineteen hundred and seventy-one (1971)
Constitutional Convention has been ratied by an overwhelming majority of all of
the votes cast by the members of all the Barangays (Citizens Assemblies)
throughout the Philippines, and has thereby come into effect."
In this connection, it is not claimed that the Chief Executive had personal
knowledge of the data he certied in said proclamation. Moreover, Art. X of the
1935 Constitution was precisely inserted to place beyond the Executive the power
to supervise or even exercise any authority whatsoever over "all laws relative to the
conduct of elections," and, hence, whether the elections are for the choice or
selection of public ocers or for the ratication or rejection of any proposed
amendment, or revision of the Fundamental Law, since the proceedings for the
latter are, also, referred to in said Art. XV as "elections."
The Solicitor General stated, in his argument before this Court, that he had been
informed that there was in each municipality a municipal association of presidents
of the citizens' assemblies for each barrio of the municipality; that the president of
each such municipal association formed part of a provincial or city association of
presidents of such municipal associations; that the president of each one of these

provincial or city associations in turn formed part of a National Association or

Federation of Presidents of such Provincial or City Associations; and that one
Francisco Cruz from Pasig, Rizal, as President of said National Association or
Federation, reported to the President of the Philippines, in the morning of January
17, 1973, the total result of the voting in the citizens' assemblies all over the
country from January 10 to January 15, 1973. The Solicitor General further
intimated that the said municipal associations had reported the results of the
citizens' assemblies in their respective municipalities to the corresponding Provincial
Association, which, in turn, transmitted the results of the voting in the province to
the Department of Local Governments and Community Development, which
tabulated the results of the voting in the citizens' assemblies throughout the
Philippines and then turned them over to Mr. Francisco Cruz, as President or acting
President of the National Association or Federation, whereupon Mr. Cruz, acting in a
ceremonial capacity, reported said results (tabulated by the Department of Local
Governments and Community Development) to the Chief Executive, who,
accordingly, issued Proclamation No. 1102.
The record shows, however, that Mr. Cruz was not even a member of any barrio
council since 1972, 80 that he could not possibly have been a member on January
17, 1973, of a municipal association of presidents of barrio or ward citizens'
assemblies, much less of a Provincial, City or National Association or Federation of
Presidents of any such provincial or city associations.
Secondly, at the conclusion of the hearing of these cases on February 16, 1973, and
in the resolution of this Court of the same date, the Solicitor General was asked to
submit, together with his notes on his oral argument, a true copy of the
aforementioned report of Mr. Cruz to the President and of the "(p)roclamation,
decree, instruction, order, regulation or circular, if any, creating or directing or
authorizing the creation, establishment or organization" of said municipal, provincial
and national associations, but neither a copy of said alleged report to the President,
nor a copy of any said "(p)roclamation, decree, instruction, order, regulation or
circular," has been submitted to this Court. In the absence of said report, "
(p)roclamation, decree, instruction," etc., Proclamation No. 1102 is devoid of any
factual and legal foundation. Hence, the conclusion is set forth in the dispositive
portion of said Proclamation No. 1102, to the eect that the proposed new or
revised Constitution had been ratied by the majority of the votes cast by the
people, cannot possibly have any legal effect or value.
The theory that said proclamation is "conclusive" upon the Court is clearly
untenable. If it were, acts of the Executive and those of Congress could not possibly
be annulled or invalidated by courts of justice. Yet, such is not the case. In fact, even
a resolution of Congress declaring that a given person has been elected President or
Vice-President of the Philippines as provided in the Constitution 69 is not conclusive
upon the courts. It is no more than prima facie evidence of what is attested to by
said resolution. 70 If assailed directly in appropriate proceedings, such as an election
protest, if and when authorized by law, as it is in the Philippines, the Court may
receive evidence and declare, in accordance therewith, who was duly elected to the
oce involved. 71 If prior to the creation of the Presidential Electoral Tribunal, no

such protest could be led, it was not because the resolution of Congress declaring
those had been elected President or Vice-President was conclusive upon courts of
justice, but because there was no law permitting the ling of such protest and
declaring what court or body would hear and decide the same. So, too, a declaration
to the eect that a given amendment to the Constitution or revised or new
Constitution has been ratied by a majority of the votes cast therefor, may be duly
assailed in court and be the object of judicial inquiry, in direct proceedings therefor
such as the cases at bar and the issue raised therein may and should be
decided in accordance with the evidence presented.

The case of In re McConaughy 72 is squarely in point. "As the Constitution stood

from the organization of the state" of Minnesota "all taxes were required to be
raised under the system known as the 'general property tax.' Dissatisfaction with
the results of this method and the development of more scientic and satisfactory
methods of raising venue induced the Legislature to submit to the people an
amendment to the Constitution which provided merely that taxes shall be uniform
upon the same class of subjects. This proposed amendment was submitted at the
general election held in November, 1906, and in due time it was certified by the
state canvassing board and proclaimed by the Governor as having been legally
adopted. Acting upon the assumption that the amendment had become a part of the
Constitution, the Legislature enacted statutes providing for a State Tax Commission
and a mortgage registry tax, and the latter statute, upon the same theory, was held
constitutional" by said Court. "The district court found that the amendment had not
in fact been adopted, and on this appeal" the Supreme Court was "required to
determine the correctness of that conclusion."
Referring to the eect of the certification of the State Board of Canvassers created
by the Legislature and of the proclamation made by the Governor based thereon,
the Court held: "It will be noted that this board does no more than tabulate the
reports received from the various county boards and add up and certify the results.
State v. Mason, 45 Wash. 234, 88 Pac. 126, 9 L.R.A. (U.S.) 1221. It is settled law
that the decisions of election ocers, and canvassing boards are not conclusive and
that the nal decision must rest with the courts, unless the law declares that the
decisions of the board shall be nal" and there is no such law in the cases at bar.
". . . The correctness of the conclusion of the state board rests upon the correctness
of the returns made by the county boards and it is inconceivable that it was
intended that this statement of result should be nal and conclusive regardless of
the actual facts. The proclamation of the Governor adds nothing in the way of
conclusiveness to the legal eect of the action of the canvassing board. Its purpose
is to formally notify the people of the state of the result of the voting as found by
the canvassing board. James on Const. Conv. (4th Ed.) sec. 523."
In Bott v. Wartz, 73 the Court reviewed the statement of results of the election
made by the canvassing board, in order that the true results could be judicially
determined. And so did the court in Rice v. Palmer. 74

Inasmuch as Art. X of the 1935 Constitution places under the "exclusive" charge of
the Commission on Elections, "the enforcement and administration of all laws
relative to the conduct of elections," independently of the Executive, and there is
not even a certication by the Commission in support of the alleged results of the
citizens' assemblies relied upon in Proclamation No. 1102 apart from the fact that
on January 17, 1973 neither the alleged president of the Federation of Provincial or
City Barangays nor the Department of Local Governments had certied to the
President of the alleged result of the citizen's assemblies all over the Philippines it
follows necessarily that, from a constitutional and legal viewpoint, Proclamation No.
1102 is not even prima facie evidence of the alleged ratication of the proposed
Constitution.
Referring particularly to the cases before Us, it will be noted that, as pointed out in
the discussion of the preceding topic, the new or revised Constitution proposed by
the 1971 Constitutional Convention was not ratied in accordance with the
provisions of the 1935 Constitution. In fact, it has not even been ratied in
accordance with said proposed Constitution, the minimum age requirement therein
for the exercise of the right of surage being eighteen (18) years, apart from the
fact that Art. VI of the proposed Constitution requires "secret" voting, which was not
observed in many, if not most, Citizens' Assemblies. Besides, both the 1935
Constitution and the proposed Constitution require a "majority of the votes cast" in
an election or plebiscite called for the ratication of an amendment or revision of
the rst Constitution or the eectivity of the proposed Constitution, and the phrase
"votes cast" has been construed to mean "votes made in writing," not orally, as it
was in many Citizens' Assemblies. 75
Even counsel for Gil J. Puyat and Jose Roy, as respondents in L-36165, asserts
openly that Art. XV of the Constitution has not been complied with, and since the
alleged substantial compliance with the requirements thereof partakes of the
nature of a defense set up by the other respondents in these cases, the burden of
proving such defense which, if true, should be within their peculiar knowledge
is clearly on such respondents. Accordingly, if despite the extensive notes and
documents submitted by the parties herein, the members of the Court do not know
or are not prepared to say whether or not the majority of the people or of those who
took part in the Citizens' Assemblies have assented to the proposed Constitution,
the logical step would be to give due course to these cases, require the respondents
to le their answers, and the plaintis their reply, and, thereafter, to receive the
pertinent evidence and then proceed to the determination of the issues raised
thereby. Otherwise, we would be placing upon the petitioners the burden of
disproving a defense set up by the respondents, who have not so far established the
truth of such defense.
Even more important, and decisive, than the foregoing is the circumstance that
there is ample reason to believe that many, if not most, of the people did not know
that the Citizens' Assemblies were, at the time they were held, plebiscites for the
ratication or rejection of the proposed Constitution. Hence, in Our decision in the
plebiscite cases, We said, inter alia:

"Meanwhile, or on December 17, 1972, the President had issued an order

temporarily suspending the eects of Proclamation No. 1081, for the
purpose of free and open debate on the Proposed Constitution. On
December 23, the President announced the postponement of the plebiscite
for the ratication or rejection of the Proposed Constitution. No formal
action to this eect was taken until January 7, 1973, when General Order
No. 20 was issued, directing 'that the plebiscite scheduled to be held on
January 15, 1973, he postponed until further notice.' Said General Order No.
20, moreover, 'suspended in the meantime' the 'order of December 17,
1972, temporarily suspending the eects of Proclamation No. 1081 for
purposes of free and open debate on the proposed Constitution.'
"In view of these events relative to the postponement of the aforementioned
plebiscite, the Court deemed it fit to refrain, for the time being, from deciding
the aforementioned cases, for neither the date nor the conditions under
which said plebiscite would be held were known or announced ocially. Then
again, Congress was, pursuant to the 1935 Constitution, scheduled to meet
in regular session on January 22, 1973,and since the main objection to
Presidential Decree No. 73 was that the President does not have the
legislative authority to call a plebiscite and appropriate funds therefor, which
Congress unquestionably could do, particularly in view of the formal
postponement of the plebiscite by the President reportedly after
consultation with, among others, the leaders of Congress and the
Commission on Elections the Court deemed it more imperative to defer its
final action on these cases."

And, apparently, the parties in said cases entertained the same belief, for, on
December 23, 1972 four (4) days after the last hearing of said cases 76 the
President announced the postponement of the plebiscite scheduled by Presidential
Decree No. 73 to be held on January 15, 1973, after consultation with the
Commission on Elections and the leaders of Congress, owing to doubts on the
suciency of the time available to translate the proposed Constitution into some
local dialects and to comply with some pre-electoral requirements, as well as to
aord the people a reasonable opportunity to be posted on the contents and
implications of said transcendental document. On January 7, 1973, General Order
No. 20 was issued formally, postponing said plebiscite "until further notice." How
can said postponement be reconciled with the theory that the proceedings in the
Citizens' Assemblies scheduled to be held from January 10, to January 15, 1973,
were "plebiscites," in eect, accelerated, according to the theory of the Solicitor
General, for the ratication of the proposed Constitution? If said Assemblies were
meant to be the plebiscites or elections envisaged in Art. XV of the Constitution,
what, then, was the "plebiscite" postponed by General Order No. 20? Under these
circumstances, it was only reasonable for the people who attended such assemblies
to believe that the same were not an "election" or plebiscite for the ratication or
adoption of said proposed Constitution.
And, this belief is further bolstered up by the questions propounded in the Citizens'
Assemblies, namely:

"[1]Do you like the New Society?

"[2]Do you like the reforms under martial law?
"[3]Do you like Congress again to hold sessions?
"[4]Do you like the plebiscite to be held later?
"[5]Do you like the way President Marcos is running the aairs of the
government? [Bulletin Today, January 10, 1973; additional question italics.]
"[6]Do you approve of the citizens assemblies as the base of popular
government to decide issues of national interests?
"[7]Do you approve of the new Constitution?
"[8]Do you want a plebiscite to be called to ratify the new Constitution?
"[9]Do you want the elections to be held in November, 1973 in accordance
with the provisions of the 1935 Constitution?

"[10]If the elections would not be held, when do you want the next elections
to be called?
"[11]Do you want martial law to continue?" [Bulletin Today, January 11,
1973]

To begin with, questions nos. 1, 2, 3, 4, 5, 6, 9, 10 and 11 are not proper in a

plebiscite for the ratification of a proposed Constitution or of a proposed amendment
thereto. Secondly, neither is the language of question No. 7 "Do you approve of
the new Constitution?" One approves "of" the act of another, which does not need
such approval for the eectivity of said act, which the rst person, however, nds to
be good, wise or satisfactory. The approval of the majority of the votes cast in a
plebiscite is, however, essential for an amendment to the Constitution to be valid as
part thereof. Thirdly, if the proceedings in the Citizens' Assemblies constituted a
plebiscite, question No. 8 would have been unnecessary and improper, regardless of
whether question No. 7 were answered armatively or negatively. If the majority
of the answers to question No. 7 were in the armative, the Constitution would
have become eective and no other plebiscite could be held thereafter in connection
therewith, even if the majority of the answers to question No. 8 were, also, in the
armative. If the majority of the answers to question No. 7 were in the negative,
neither may another plebiscite be held, even if the majority of the answers to
question No. 8 were in the armative. In either case, not more than one plebiscite
could be held for the ratication or rejection of the proposed Constitution. In short,
the insertion of said two (2) questions apart from the other questions adverted to
above indicates strongly that the proceedings therein did not partake of the
nature of a plebiscite or election for the ratication or rejection of the proposed
Constitution.

Indeed, I can not, in good conscience, declare that the proposed Constitution has
been approved or adopted by the people in the citizens' assemblies all over the
Philippines, when it is, to my mind, a matter of judicial knowledge that there have
been no such citizens' assemblies in many parts of Manila and suburbs, not to say,
also, in other parts of the Philippines. In a letter of Governor Efren B. Pascual of
Bataan, dated January 15, 1973, to the Chief Executive, the former reported:
". . . This report includes a resume (sic) of the activities we undertook in
eecting the referendum on the eleven questions you wanted our people
consulted on and the Summary of Results thereof for each municipality and
for the whole province.
"xxx xxx xxx
". . . Our initial plans and preparations, however, dealt only on the original
ve questions. Consequently, when we received an instruction on January
10 to change the questions, we urgently suspended all scheduled Citizens'
Assembly meetings on that day and called all Mayors, Chiefs of Oces and
other government ocials to another conference to discuss with them the
new set of guidelines and materials to be used.
"On January 11, . . . another instruction from the top was received to include
the original ve questions among those to be discussed and asked in the
Citizens' Assembly meetings. With this latest order, we again had to make
modications in our instructions to all those managing and supervising the
holding of the Citizens' Assembly meetings throughout the province . . .
Aside from the coordinators we had from the Oce of the Governor, the
splendid cooperation and support extended by almost all government
ocials and employees in the province, particularly of the Department of
Education, PC and PACD personnel, provided us with enough hands to
trouble shoot and implement sudden changes in the instructions anytime
and anywhere needed . . .
". . . As to our people, in general, their enthusiastic participation showed
their preference and readiness to accept this new method of government to
people consultation in shaping up government policies."

Thus, as late as January 10, 1973, the Bataan ocials had to suspend "all scheduled
Citizens' Assembly meetings . . ." and call all available ocials ". . . to discuss with
them the new set of guidelines and materials to be used . . ." Then, "on January 11 .
. . another instruction from the top was received to include the original ve
questions among those to be discussed and asked in the Citizens' Assembly
meetings. With this latest order, we again had to make modications in our
instructions to all those managing and supervising the holding of the Citizens'
Assembly meetings throughout the province . . . As to our people, in general, their
enthusiastic participation showed their preference and readiness to accept the new
method of government to people consultation in shaping up government policies."
This communication manifestly shows: 1) that, as late as January 11, 1973, the
Bataan ocials had still to discuss not put into operation means and ways to

carry out the changing instructions from the top on how to organize the citizens'
assemblies, what to do therein and even what questions or topics to propound or
touch in said assemblies; 2) that the assemblies would involve no more than
consultations or dialogues between people and government not decisions to be
made by the people; and 3) that said consultations were aimed only at "shaping up
government policies" and, hence, could not, and did not, partake of the nature of a
plebiscite for the ratication or rejection of a proposed amendment of a new or
revised Constitution for the latter does not entail the formulation of a policy of the
Government, but the making of a decision by the people on the new way of life, as a
nation, they wish to have, once the proposed Constitution shall have been ratified.
If this was the situation in Bataan one of the provinces nearest to Manila as
late as January 11, 1973, one can easily imagine the predicament of the local
ocials and people in the remote barrios in northern and southern Luzon, in the
Bicol region, in the Visayan Islands and Mindanao. In fact, several members of the
Court, including those of their immediate families and their household, although
duly registered voters in the area of Greater Manila, were not even notied that
citizens' assemblies would be held in the places where their respective residences
were located. In the Prohibition and Amendment case, 77 attention was called to the
"duty cast upon the court of taking judicial cognizance of anything aecting the
existence and validity of any law or portion of the Constitution . . ." In line with its
own pronouncement in another case, the Federal Supreme Court of the United
States stressed, in Baker v. Carr, 78 that "a court is not at liberty to shut its eyes to
an obvious mistake, when the validity of the law depends upon the truth of what is
declared."
In the light of the foregoing, I cannot see how the question under consideration can
be answered or resolved otherwise than in the negative.
V

Have the people acquiesced in the proposed Constitution?

It is urged that the present Government of the Philippines is now and has been run,
since January 17, 1973, under the Constitution drafted by the 1971 Constitutional
Convention; that the political department of the Government has recognized said
revised Constitution; that our foreign relations are being conducted under such new
or revised Constitution; that the Legislative Department has recognized the same,
and that the people, in general, have, by their acts or omissions, indicated their
conformity thereto.
As regards the so called political organs of the Government, I gather that
respondents refer mainly to the oces under the Executive Department. In a sense,
the latter performs some functions which, from a constitutional viewpoint, are
political in nature, such as in recognizing a new state or government, in accepting
diplomatic representatives accredited to our Government, and even in devising
administrative means and ways to better carry into eect Acts of Congress which
dene the goals or objectives thereof, but are either imprecise or silent on the
particular measures to be resorted to in order to achieve the said goals or delegate

the power to do so, expressly or impliedly, to the Executive. This, notwithstanding,

the political organ of a government that purports to be republican is essentially the
Congress or Legislative Department. Whatever may be the functions allocated to
the Executive Department specially under a written, rigid Constitution, with a
republican system of Government like ours the role of that Department is
inherently, basically and fundamentally executive in nature to "take care that
the laws be faithfully executed," in the language of our 1935 Constitution. 79
Consequently, I am not prepared to concede that the acts of the ocers and oces
of the Executive Department, in line with Proclamation No. 1102, connote a
recognition thereof or an acquiescence thereto. Whether they recognized the
proposed Constitution or acquiesce thereto or not is something that cannot legally,
much less necessarily or even normally, be deduced from their acts in accordance
therewith, because they are bound to obey and act in conformity with the orders of
the President, under whose "control" they are, pursuant to the 1935 Constitution.
They have absolutely no other choice, specially in view of Proclamation No. 1081
placing the Philippines under Martial Law. Besides, by virtue of the very decrees,
orders and instructions issued by the President thereafter, he had assumed all
powers of Government although some question his authority to do so and,
consequently, there is hardly anything he has done since the issuance of
Proclamation No. 1102, on January 17, 1973 declaring that the Constitution
proposed by the 1971 Constitutional Convention has been ratied by the
overwhelming majority of the people that he could not do under the authority he
claimed to have under Martial Law, since September 21, 1972, except the power of
supervision over inferior courts and its personnel, which said proposed Constitution
would place under the Supreme Court, and which the President has not ostensibly
exercised, except as to some minor routine matters, which the Department of
Justice has continued to handle, this Court having preferred to maintain the status
quo in connection therewith pending nal determination of these cases, in which
the effectivity of the aforementioned Constitution is disputed.

Then, again, a given department of the Government cannot generally be said to

have "recognized" its own acts. Recognition normally connotes the acknowledgment
by a party of the acts of another. Accordingly, when a subordinate ocer or oce of
the Government complies with the commands of a superior ocer or oce, under
whose supervision and control he or it is, the former merely obeys the latter.
Strictly speaking, and from a legal and constitutional viewpoint, there is no act of
recognition involved therein. Indeed, the lower ocer or oce, if he or it acted
otherwise, would just be guilty of insubordination.
Thus, for instance, the case of Taylor v. Commonwealth 80 cited by respondents
herein in support of the theory of the people's acquiescence involved a
constitution ordained in 1902 and "proclaimed by a convention duly called by a
direct vote of the people of the state to revise and amend the Constitution of 1869.
The result of the work of that Convention has been recognized, accepted and acted
upon as the only valid Constitution of the State" by

1.The "Governor of the State in swearing delity to it and proclaiming it, as directed
thereby";
2.The "Legislature in its formal official act adopting a joint resolution, July 15, 1902,
recognizing the Constitution ordained by the Convention . . .";
3.The "individual oaths of its members to support it, and by its having been engaged
for nearly a year, in legislating under it and putting its provisions into operation . .
.";
4.The "judiciary in taking the oath prescribed thereby to support it and by enforcing
its provisions . . . "; and
5.The "people in their primary capacity by peacefully accepting it and acquiescing in
it, by registering as voters under it to the extent of thousands throughout the State,
and by voting, under its provisions, at a general election for their representatives in
the Congress of the United States."
Note that the New Constitution of Virginia, drafted by a convention whose members
were elected directly by the people, was not submitted to the people for ratication
or rejection thereof. But, it was recognized, not by the convention itself, but by
other sectors of the Government, namely, the Governor; the Legislature not
merely by individual acts of its members, but by formal joint resolution of its two
(2) chambers; by the judiciary; and by the people, in the various ways specied
above. What is more, there was no martial law. In the present cases, none of the
foregoing acts of acquiescence was present. Worse still, there is martial law, the
strict enforcement of which was announced shortly before the alleged citizens'
assemblies. To top it all, in the Taylor case, the eectivity of the contested
amendment was not contested judicially until about one (1) year after the
amendment had been put into operation in all branches of the Government, and
complied with by the people who participated in the elections held pursuant to the
provisions of the new Constitution. In the cases under consideration, the legality of
Presidential Decree No. 73 calling a plebiscite to be held on January 15, 1973, was
impugned as early as December 7, 1972, or ve (5) weeks before the scheduled
plebiscite, whereas the validity of Proclamation No. 1102 declaring on January 17,
1973, that the proposed Constitution had been ratied despite General Order No.
20, issued on January 7, 1972, formally and ocially suspending the plebiscite until
further notice was impugned as early as January 20, 1973, when L-36142 was
filed, or three (3) daysafter the issuance of Proclamation No. 1102.
It is further alleged that a majority of the members of our House of Representatives
and Senate have acquiesced in the new or revised Constitution, by ling written
statements opting to serve in the Ad Interim Assembly established in the Transitory
Provisions of said Constitution. Individual acts of recognition by members of our
legislature, as well as of other collegiate bodies under the government, are invalid
as acts of said legislature or bodies, unless its members have performed said acts in
session duly assembled, or unless the law provides otherwise, and there is no such
law in the Philippines. This is a well-established principle of Administrative Law and
of the Law of Public Ocers, and no plausible reason has been adduced to warrant

departure therefrom. 81
Indeed, if the members of Congress were generally agreeable to the proposed
Constitution, why did it become necessary to padlock its premises to prevent its
meeting in session on January 22, 1973, and thereafter as provided in the 1935
Constitution? It is true that, theoretically, the members of Congress, if bent on
discharging their functions under said Constitution, could have met in any other
place, the building in which they perform their duties being immaterial to the
legality of their ocial acts. The force of this argument is, however, oset or
dissipated by the fact that, on or about December 27, 1972, immediately after a
conference between the Executive, on the one hand, and members of Congress, on
the other, some of whom expressed the wish to meet in session on January 22,
1973, as provided in the 1935 Constitution, a Daily Express columnist (Primitivo
Mijares) attributed to Presidential Assistant Guillermo de Vega a statement to the
eect that "'certain members of the Senate appear to be missing the point in issue'
when they reportedly insisted on taking up rst the question of convening
Congress." The Daily Express of that date, 82 likewise, headlined, on its front page, a
"Senatorial Plot Against 'Martial Law Government' Disclosed." Then, in its issue of
December 29, 1972, the same paper imputed to the Executive an appeal "to diverse
groups involved in a conspiracy to undermine" his powers "under martial law to
desist from provoking a constitutional crisis . . . which may result in the exercise by
me of authority I have not exercised."
No matter how good the intention behind these statements may have been, the
idea implied therein was too clear and ominous for any member of Congress who
thought of organizing, holding or taking part in a session of Congress, not to get the
impression that he could hardly do so without inviting or risking the application of
Martial Law to him. Under these conditions, I do not feel justied in holding that the
failure of the members of Congress to meet since January 22, 1973, was due to
their recognition, acquiescence in or conformity with the provisions of the
aforementioned Constitution, or its alleged ratification.
For the same reasons, especially because of Proclamation No. 1081, placing the
entire Philippines under Martial Law, neither am I prepared to declare that the
people's inaction as regards Proclamation No. 1102, and their compliance with a
number of Presidential orders, decrees and/or instructions some or many of which
have admittedly had salutary eects issued subsequently thereto amounts,
constitutes or attests to a ratication, adoption or approval of said Proclamation No.
1102. In the words of the Chief Executive, "martial law connotes power of the gun,
meant coercion by the military, and compulsion and intimidation." 83 The failure to
use the gun against those who comply with the orders of the party wielding the
weapon does not detract from the intimidation that Martial Law necessarily
connotes. It may reect the good, reasonable and wholesome attitude of the person
who has the gun, either pointed at others, without pulling the trigger, or merely
kept in its holster, but not without warning that he may or would use it if he
deemed it necessary. Still, the intimidation is there, and inaction or obedience of the
people, under these conditions, is not necessarily an act of conformity or
acquiescence. This is specially so when we consider that the masses are, by and

large, unfamiliar with the parliamentary system, the new form of government
introduced in the proposed Constitution, with the particularity that it is not even
identical to that existing in England and other parts of the world, and that even
experienced lawyers and social scientists nd it dicult to grasp the full implications
of some provisions incorporated therein.
As regards the applicability to these cases of the "enrolled bill" rule, it is well to
remember that the same refers to a document certied to the President for his
action under the Constitution by the Senate President and the Speaker of the
House of Representatives, and attested to by the Secretary of the Senate and the
Secretary of the House of Representatives, concerning legislative measures
approved by the two Houses of Congress. The argument of the Solicitor General is,
roughly, this: If the enrolled bill is entitled to full faith and credence and, to this
extent, it is conclusive upon the President and the judicial branch of the
Government, why should Proclamation No. 1102 merit less consideration than in
enrolled bill?
Before answering this question, I would like to ask the following: If, instead of being
certied by the aforementioned ocers of Congress, the so-called enrolled bill were
certied by, say, the President of the Association of Sugar Planters and/or Millers of
the Philippines, and the measure in question were a proposed legislation concerning
Sugar Plantations and Mills sponsored by said Association, which even prepared the
draft of said legislation, as well as lobbied actually for its approval, for which reason
the ocers of the Association, particularly, its aforementioned president whose
honesty and integrity are unquestionable were present at the deliberations in
Congress when the same approved the proposed legislation, would the enrolled bill
rule apply thereto? Surely, the answer would have to be in the negative. Why?
Simply, because said Association President has absolutely no ocial authority to
perform in connection therewith, and, hence, his certication is, legally, as good as
non-existent.

Similarly, a certication, if any, of the Secretary of the Department of Local

Governments and Community Development about the tabulated results of the
voting in the Citizens' Assemblies allegedly held all over the Philippines and the
records do not show that any such certication, either to the President of the
Philippines or to the President of the Federation or National Association of
presidents of Provincial Associations of presidents of municipal associations of
presidents of barrio or ward assemblies of citizens would not, legally and
constitutionally, be worth the paper on which it is written. Why? Because said
Department Secretary is not the ocer designated by law to superintend plebiscites
or elections held for the ratication or rejection of a proposed amendment or
revision of the Constitution and, hence, to tabulate the results thereof. Worse still,
it is the ocer or department which, according to Article X of the 1935 Constitution,
should not and must not be allowed to participate in said plebiscite if plebiscite
there was.

After citing approvingly its ruling in United States v. Sandoval, 84 the Highest Court
of the United States declared that courts "will not stand impotent before an obvious
instance of a manifestly unauthorized exercise of power." 85
I cannot honestly say, therefore, that the people have impliedly or expressly
indicated their conformity to the proposed Constitution.
VI

Are the Parties entitled to any relief?

Before attempting to answer this question, a few words must be said about the
procedure followed in these ve (5) cases. In this connection, it should be noted that
the Court has not as yet decided whether or not to give due course to the petitions
herein or to require the respondents to answer thereto. Instead, it has required the
respondents to comment on the respective petitions with three (3) members of
the Court voting to dismiss them outright and then considered the comments
thus submitted by the respondents as motions to dismiss, as well as set the same
for hearing. This was due to the transcendental nature of the main issue raised, the
necessity of deciding the same with utmost dispatch, and the main defense set up
by respondents herein, namely, the alleged political nature of said issue, placing the
same, according to respondents, beyond the ambit of judicial inquiry and
determination. If this defense was sustained, the cases could readily be dismissed;
but, owing to the importance of the questions involved, a reasoned resolution was
demanded by public interest. At the same time, respondents had cautioned against
a judicial inquiry into the merits of the issues posed on account of the magnitude of
the evil consequences, it was claimed, which would result from a decision thereon, if
adverse to the Government.
As a matter of fact, some of those issues had been raised in the plebiscite cases,
which were dismissed as moot and academic, owing to the issuance of Proclamation
No. 1102 subsequently to the ling of said cases, although before the rendition of
judgment therein. Still one of the members of the Court (Justice Zaldivar) was of
the opinion that the aforementioned issues should be settled in said cases, and he,
accordingly, led an opinion passing upon the merits thereof. On the other hand,
three (3) members of the Court Justices Barredo, Antonio and Esguerra led
separate opinions favorable to the respondents in the plebiscite cases, Justice
Barredo holding "that the 1935 Constitution has pro tanto passed into history and
has been legitimately supplanted by the Constitution in force by virtue of
Proclamation 1102." 86 When the petitions at bar were led, the same three (3)
members of the Court, consequently, voted for the dismissal of said petitions. The
majority of the members of the Court did not share, however, either view, believing
that the main question that arose before the rendition of said judgment had not
been suciently discussed and argued as the nature and importance thereof
demanded.
The parties in the cases at bar were accordingly given every possible opportunity to
do so and to elucidate on and discuss said question. Thus, apart from hearing the
parties in oral argument for five (5) consecutive days morning and afternoon, or a

total of exactly 26 hours and 31 minutes their respective counsel led extensive
notes on their oral arguments, as well as on such additional arguments as they
wished to submit, and reply notes or memoranda, in addition to rejoinders thereto,
aside from a sizeable number of documents in support of their respective
contentions, or as required by the Court. The arguments, oral and written,
submitted have been so extensive and exhaustive, and the documents led in
support thereof so numerous and bulky, that, for all intents and purposes, the
situation is as if disregarding forms the petitions had been given due course
and the cases had been submitted for decision.
Accordingly, the majority of the members of the Court believe that they should
express their views on the aforementioned issues as if the same were being decided
on the merits, and they have done so in their individual opinions attached hereto.
Hence, the resume of the votes east and the tenor of the resolution, in the last
pages hereof, despite the fact that technically the Court has not, as yet, formally
given due course to the petitions herein.
And, now, here are my views on the reliefs sought by the parties.
In L-36165, it is clear that we should not issue the writ of mandamus prayed for
against Gil J. Puyat and Jose Roy, as President and President Pro Tempore
respectively of the Senate, it being settled in our jurisdiction, based upon the theory
of separation of powers, that the judiciary will not issue such writ to the head of a
co-equal department, like the aforementioned officers of the Senate.
In all other respects and with regard to the other respondents in said case, as well as
in eases L-36142, L-36164, L-36236 and L-36283, my vote is that the petitions
therein should be given due course, there being more than prima facie showing that
the proposed Constitution has not been ratied in accordance with Article XV of the
1935 Constitution, either strictly, or substantially, or has been acquiesced in by the
people or a majority thereof; that said proposed Constitution is not in force and
eect; and that the 1935 Constitution is still the Fundamental Law of the Land,
without prejudice to the submission of said proposed Constitution to the people at a
plebiscite for its ratication or rejection in accordance with Articles V, X and XV of
the 1935 Constitution and the provisions of the Revised Election Code in force at
the time of such plebiscite.
Perhaps others would feel that my position in these cases overlooks what they
might consider to be the demands of "judicial statesmanship," whatever may be the
meaning of such phrase. I am aware of this possibility, if not probability; but
"judicial statesmanship," though consistent with Rule of Law, cannot prevail over
the latter. Among consistent ends or consistent values, there always is a hierarchy,
a rule of priority.
We must realize that the New Society has many achievements which would have
been very dicult, if not impossible, to accomplish under the old dispensation. But,
in and for the judiciary, statesmanship should not prevail over the Rule of Law.
Indeed, the primacy of the law or of the Rule of Law and faithful adherence thereto
are basic, fundamental and essential parts of statesmanship itself.

Resume of the Votes Cast and the Court's Resolution

As earlier stated, after the submittal by the members of the Court of their individual
opinions and/or concurrences as appended hereto, the writer will now make, with
the concurrence of his colleagues, a resume or summary of the votes cast by each of
them.
It should be stated that by virtue of the various approaches and views expressed
during the deliberations, it was agreed to synthesize the basic issues at bar in broad
general terms in ve questions for purposes of taking the votes. It was further
agreed of course that each member of the Court would expound in his individual
opinion and/or concurrence his own approach to the stated issues and deal with
them and state (or not) his opinion thereon singly or jointly and with such priority,
qualications and modications as he may deem proper, as well as discuss thereon
other related issues which he may consider vital and relevant to the cases at bar.
The ve questions thus agreed upon as reecting the basic issues herein involved
are the following:
1.Is the issue of the validity of Proclamation No. 1102 a justiciable, or political and
therefore non-justiciable, question?
2.Has the Constitution proposed by the 1971 Constitutional Convention been
ratied validly (with substantial, if not strict, compliance) conformably to the
applicable constitutional and statutory provisions?
3.Has the aforementioned proposed Constitution been acquiesced in (with or
without valid ratification) by the people?
4.Are petitioners entitled to relief? and
5.Is the aforementioned proposed Constitution in force?
The results of the voting, premised on the individual views expressed by the
members of the Court in their respective opinions and/or concurrences, are as
follows:
1.On the rst issue involving the political-question doctrine, Justices Makalintal,
Zaldivar, Castro, Fernando, Teehankee and myself, or six (6) members of the Court,
hold that the issue of the validity of Proclamation No. 1102 presents a justiciable
and non-political question. Justices Makalintal and Castro did not vote squarely on
this question, but, only inferentially, in their discussion of the second question.
Justice Barredo qualied his vote, stating that "inasmuch as it is claimed that there
has been approval by the people, the Court may inquire into the question of
whether or not there has actually been such an approval, and, in the armative,
the Court should keep its hands-o out of respect to the people's will, but, in the
negative, the Court may determine from both factual and legal angles whether or
not Article XV of the 1935 Constitution has been complied with." Justices Makasiar,
Antonio and Esguerra, or three (3) members of the Court hold that the issue is

political and "beyond the ambit of judicial inquiry."

2.On the second question of validity of the ratication, Justices Makalintal, Zaldivar,
Castro, Fernando, Teehankee and myself, or six (6) members of the Court also hold
that the Constitution proposed by the 1971 Constitutional Convention was not
validly ratied in accordance with Article XV, section 1 of the 1935 Constitution,
which provides only one way for ratication, i.e., "in an election or plebiscite held in
accordance with law and participated in only by qualied and duly registered
voters." 87
Justice Barredo qualied his vote, stating that "(A)s to whether or not the 1973
Constitution has been validly ratied pursuant to Article XV, I still maintain that in
the light of traditional concepts regarding the meaning and intent of said Article, the
referendum in the Citizens' Assemblies, specially in the manner the votes therein
were cast, reported and canvassed, falls short of the requirements thereof. In view,
however, of the fact that I have no means of refusing to recognize as a judge that
factually there was voting and that the majority of the votes were for considering as
approved the 1973 Constitution without the necessity of the usual form of
plebiscite followed in past ratications, I am constrained to hold that, in the political
sense, if not in the orthodox legal sense, the people may be deemed to have cast
their favorable votes in the belief that in doing so they did the part required of them
by Article XV, hence, it may be said that in its political aspect, which is what counts
most, after all, said Article has been substantially complied with, and, in eect, the
1973 Constitution has been constitutionally ratified."
Justices Makasiar, Antonio and Esguerra, or three (3) members of the Court hold
that under their view there has been in eect substantial compliance with the
constitutional requirements for valid ratification.
3.On the third question of acquiescence by the Filipino people in the
aforementioned proposed Constitution, no majority vote has been reached by the
Court.
Four (4) of its members, namely, Justices Barredo, Makasiar, Antonio and Esguerra
hold that "the people have already accepted the 1973 Constitution." 88
Two (2) members of the Court, namely, Justice Zaldivar and myself hold that there
can be no free expression, and there has even been no expression, by the people
qualied to vote all over the Philippines, of their acceptance or repudiation of the
proposed Constitution under Martial Law. Justice Fernando states that "(I)f it is
conceded that the doctrine stated in some American decisions to the eect that
independently of the validity of the ratication, a new Constitution once accepted or
acquiesced in by the people must be accorded recognition by the Court, I am not at
this stage prepared to state that such doctrine calls for application in view of the
shortness of time that has elapsed and the diculty of ascertaining what is the
mind of the people in the absence of the freedom of debate that is a concomitant
feature of martial law."

Three (3) members of the Court express their lack of knowledge and/or competence
to rule on the question. Justices Makalintal and Castro are joined by Justice
Teehankee in their statement that "Under a regime of martial law, with the free
expression of opinions through the usual media vehicles restricted, (they) have no
means of knowing, to the point of judicial certainty, whether the people have
accepted the Constitution." 89
4.On the fourth question of relief, six (6) members of the Court, namely, Justices
Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra voted to DISMISS the
petition. Justices Makalintal and Castro so voted on the strength of their view that "
(T)he eectivity of the said Constitution, in the nal analysis, is the basic and
ultimate question posed by these cases to resolve which considerations other than
judicial, and therefore beyond the competence of this Court, 90 are relevant and
unavoidable." 91
Four (4) members of the Court, namely, Justices Zaldivar, Fernando, Teehankee and
myself voted to deny respondents' motion to dismiss and to give due course to the
petitions.
5.On the fifth question of whether the new Constitution of 1973 is in force:
Four (4) members of the Court, namely, Justices Barredo, Makasiar, Antonio
and Esguerra hold that it is in force by virtue of the people's acceptance
thereof;
Four (4) members of the Court, namely, Justices Makalintal, Castro,
Fernando and Teehankee cast no vote thereon on the premise stated in their
votes on the third question that they could not state with judicial certainty
whether the people have accepted or not accepted the Constitution; and
Two (2) members of the Court, namely, Justice Zaldivar and myself voted
that the Constitution proposed by the 1971 Constitutional Convention is not
in force;

with the result that there are not enough votes to declare that the new
Constitution is not in force.
ACCORDINGLY, by virtue of the majority of six (6) votes of Justices Makalintal,
Castro, Barredo, Makasiar, Antonio and Esguerra with the four (4) dissenting votes
of the Chief Justice and Justices Zaldivar, Fernando and Teehankee, all the
aforementioned cases are hereby dismissed. This being the vote of the majority,
there is no further judicial obstacle to the new Constitution being considered in
force and effect.
It is so ordered.

Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra, JJ., concur.

Concepcion, C.J., dissents.

Zaldivar, J., dissents in line with the personal opinion of the Chief Justice, and also
dissents in a separate opinion.
Fernando, J., dissents in conformity with the personal views of the Chief Justice,
except as to such portions thereof on which he expresses his own thoughts as set
forth in his dissenting opinion.
Teehankee, J., dissents in conformity with the Chief Justice's personal opinion and
files a separate dissent.
ANNEX A
PERTINENT PORTIONS
OF THE
MINNESSOTA SUPREME COURT
DECISION
ON THE CASE

IN RE McCONAUGHY
"(a)An examination of the decisions shows that the courts have almost uniformly
exercised the authority to determine the validity of the proposal, submission, or
ratication of constitutional amendments. It has been judicially determined
whether a proposed amendment received the constitutional majority of votes
(Dayton v. St. Paul, 22 Minn. 400; Rice v. Palmer, 78 Ark. 432, 96 S.W. 396; Bott v.
Wurtz, 63 N.J. Law, 289, 43 Atl. 744, 881, 45 L.R.A. 251; State v. Foraker, 46 Ohio
St. 677, 23 N.E. 491; 6 L.R.A. 422; Tecumseh National Bank v. Saunders, 51 Neb.
801, 71 N.W. 779; Green v. State Board, 5 Idaho, 130, 47 Pac. 259, 95 Am. St. Rep.
169; In re Denny, 156 Ind. 104, 59 N.E. 359, 51 L.R.A. 722; Knight v. Shelton [C.C.]
134 Fed. 423); whether a proposed amendment is a single amendment, within the
constitutional requirement that every amendment must be separately submitted
(State v. Powell, 77 Miss. 543, 27 South. 927; Gabbert v. Chicago, etc., R. Co., 171
Mo. 84, 70 S.W. 891; State v. Timme, 54 Wis. 318,11 N.W. 785; In re Denny, 156
Ind. 104, 59 N.E. 359, 51 L.R.A. 722; Lobaugh v. Cook, 127 Iowa, 181,102 N.W.
1121; People v. Sours, 31 Colo. 369, 74 Pac. 167,102 Am. St. Rep. 34; State v.
Board, 34 Mont. 426, 87 Pac. 450; State v. Winnett [Neb.] 110 N.W. 1113, 10 L.R.A.
[N.S.] 149); whether the failure to enter the resolution of submission upon the
legislative journals invalidates the amendment (Koehler v. Hill, 60 Iowa, 543, 14
N.W. 738,15 N.W. 609; Oakland Paving Co. v. Hilton, 69 Cal. 479,11 Pac. 3; West v.
State, 50 Fla. 154, 39 South. 412; Durfee v. Harper, 22 Mont. 354, 56 Pac. 582;
State v. Tuy, 19 Nev. 391, 12 Pac. 835, 3 Am. St. Rep. 895); whether the
description of the amendment and the form of the ballot are sucient (Rugsell v.
Croy, 164 Mo. 69, 63 S.W. 849; State v. Winnett [ Neb.] 110 N.W. 1113, 10 L.R.A.
[N.S.] 149; Murphy Chair Co. v. Attorney General [Mich.] 112 N.W. 127); whether
the method of submission is sufficient (Lovett v. Ferguson, 10 S.D. 44, 71 N.W. 765;
Russell v. Croy, 164 Mo. 69, 63 S.W. 849); whether the publication of the
amendment or of a notice relative to it is sucient (Com. v. Griest, 196 Pa. 396, 46
Atl. 505, 50 L.R.A. 568; Russell v. Croy, 164 Mo. 69, 63 S.W. 849); whether the

submission may be as well by resolution as by a legislative act approved by the

executive (Com. v. Griest, 196 Pa. 396, 46 Atl. 505, 50 L.R.A. 568; Wareld v.
Vandiver, 101 Md. 78, 60 Atl. 538; Edward v. Lesueur, 132 Mo. 410, 33 S.W. 1130,
31 L.R.A. 815; Hays v. Hays, 5 Idaho, 154, 47 Pac. 732; State v. Dahl, 6 N.D. 81, 68
N.W. 418, 34 L.R.A. 97); at what election the amendment must be submitted
(People v. Curry, 130 Cal. 82, 62 Pac. 516).
"In Rich v. Board of Canvassers, 100 Mich. 458, 59 N.W. 183, the court said: 'It is
contended that the determination of the question whether an amendment to the
Constitution has been carried involves the exercise of political, and not judicial,
power. If this be so, it follows that the promulgation of any purported amendment
by the executive or any executive department is nal, and that the action cannot be
questioned by the judiciary; but, with reference to the conditions precedent to
submitting a proposed amendment to a vote of the people, it has been repeatedly
held, by courts of the highest respectability, that it is within the power of the
judiciary to inquire into the question, even in a collateral proceeding. . . . It is to be
noted that under section 1 of article 20 of the Constitution of the state no
amendment can become a part of the Constitution until ratied by a vote of the
people. One prerequisite is equally as essential as the other. The amendment must
rst receive the requisite majority in the Legislature, and afterwards be adopted by
the requisite vote . . . It is the fact of a majority vote which makes the amendment
a part of the Constitution.'
"In considering the cases it is necessary to note whether in the particular case the
court was called upon to determine between rival governments, or whether the
Legislature, or some board or official, had legally performed the duty imposed by the
Constitution or statutes. In re State v. McBride, 4 Mo. 303, 29 Am. Dec. 636, it was
held that the General Assembly, under the power granted by the Constitution, could
change the Constitution only in the manner prescribed by it, and that it was the
duty of the court to determine whether all prerequisites had been complied with. In
Collier v. Frierson, 24 Ala. 100, it was held that a Constitution can be changed only
by the people in convention or in a mode described by the Constitution itself, and
that if the latter mode is adopted every requisite of the Constitution must be
observed. 'It has been said,' says the court,' that certain acts are to be done, certain
requisitions are to be observed, before a change can be eected; but to what
purpose are these acts required, or these requisitions enjoined, if the Legislature or
any other department of the government can dispense with them. To do so would
be to violate the instrument which they are sworn to support; and every principle of
public law and sound constitutional policy requires the court to pronounce against
every amendment which is shown not to have been made in accordance with the
rules prescribed by the fundamental law.'

"In State v. Swift, 69 Ind. 505, it was said that: 'The people of a state may form an
original Constitution, or abrogate an old one and form a new one, at any time,
without any political restriction, except the Constitution of the United States; but if
they undertake to add an amendment, by the authority of legislation to a

Constitution already in existence, they can do it only by the method pointed out by
the Constitution to which the amendment is added. The power to amend a
Constitution by legislative action does not confer the power to break it, any more
than it confers the power to legislate on any other subject contrary to its
prohibitions.' So, in State v. Timme, 54 Wis. 318, 11 N.W. 785, it was held that no
amendments can be made to the Constitution of the state without a compliance
with the provisions thereof, both in the passage of such amendment by the
Legislature and the manner of submitting it to the people. The courts have not all
agreed as to the strictness of compliance which should be required.
"In the Prohibition and Amendment Case, 24 Kan. 100, the court determined
judicially whether an amendment to the Constitution had been legally adopted.
After approving the statement quoted from Collier v. Frierson, supra, that 'we
entertain no doubt that, to change the Constitution in any other mode than by a
convention, every requisite which is demanded by the instrument itself must be
observed, and the omission of any one is fatal to the amendment,' the court held
that, 'as substance of right is grander and more potent than methods of form,' there
had been substantial compliance with the constitutional requirement that a
proposed amendment to the Constitution must be entered at length on the
legislative journal. It appears that the joint resolution making a submission simply
provided that a proposition should be submitted to the electors at the general
election of 1880. It did not declare that the machinery of the general election law
should control, or that any particular ocers or board would receive, count, or
canvass the votes cast. But the existing election machinery was adequate, and the
votes were received, counted, and canvassed, and the result declared as fully as
though it had been in terms so ordered. These methods had been followed in the
adoption of previous amendments, and it was held that, conceding the irregularity
of the proceedings of the Legislature and the doubtful scope of the provisions for the
election, yet in view of the very uncertainty of such provisions, the past legislative
history of similar propositions, the universal prior acquiescence in the same forms of
procedure, and the popular and unchallenged acceptance of the legal pendency
before the people of the question of the amendment for decision, and in view of the
duty cast upon the court of taking judicial knowledge of anything aecting the
existence and validity of any law or portion of the Constitution, it must be adjudged
that the proposed amendment became part of the Constitution. The eect was to
hold that a provision of the Constitution requiring the proposed amendment to be
entered in full on the journals was directory, and not mandatory. This liberal view
was approved in State v. Winnett (Neb.) 110 N.W. 1113, 10 L.R.A. (N.S.) 149, and
People v. Sours, 31 Colo. 369, 74 Pac. 167, 102 Am. St. Rep. 34. But it has not been
universally accepted.
"In Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 Pac. 3, the court, in commenting
upon the Kansas case said: 'The reasoning by which the learned court reached the
conclusion it did is not based on any sound legal principles, but contrary to them.
Neither the argument nor the conclusion can command our assent or approval. The
argument is illogical, and based on premises which are without any sound
foundation, and rests merely on assumption.' See, also, the well-considered case of
Kadderly v. Portland, 44 Or. 118, 74 Pac. 710, 75 Pac. 222. All these cases concede

the jurisdiction of the court to determine whether, in submitting a proposed

amendment to the people, the Legislature legally observed the constitutional
provisions as to the manner of procedure. In Livermore v. Waite, 102 Cal. 113, 36
Pac. 424, 25 L.R.A. 312, the court, at the instance of a citizen and a taxpayer,
restrained the Secretary of State from taking steps to submit to the people a
proposed amendment to the Constitution agreed to by the Legislature on the
ground that the Legislature had not acted in conformity with the Constitution and
that the proposed amendment was of such a character that it could not properly
become a part of the Constitution. The Supreme Court of Colorado, in People v
Sours, supra, refused to exercise this authority.
"The entire question received elaborate consideration in Koehler v. Hill, 60 Iowa,
543, 14 N.W. 738, 15 N.W. 609. The amendment, which concededly had been
adopted by the people, had not, before its submission, been entered in full upon the
legislative journals, as required by the Constitution, and it was held that this was a
material variance in both form and substance from the constitutional requirements,
and that the amendment did not, therefore, become a part of the Constitution. As to
the claim that the question was political, and not judicial, it was said that, while it is
not competent for courts to inquire into the validity of the Constitution and the
form of government under which they themselves exist, and from which they
derive their powers, yet, where the existing Constitution prescribes a method for its
own amendment, an amendment thereto, to be valid, must be adopted in strict
conformity to that method; and it is the duty of the courts in a proper case, when an
amendment does not relate to their own power or functions, to inquire whether, in
the adoption of the amendment, the provisions of the existing Constitution have
been observed, and, if not, to declare the amendment invalid and of no force. This
case was followed in State v. Brookhart, 113 Iowa, 250, 84 N.W. 1064.
"In University v. McIver, 72 N.C. ?6, the question whether a proposed amendment
to the Constitution had been legally adopted was treated as a judicial question. By
the Constitution a proposed amendment was required to be approved by two
Legislatures before its submission to the people. In this instance a bill was passed
which contained 17 amendments. The next Legislature rejected 9 and adopted 8 of
these amendments, and submitted them to the people. The majority of the people
voted for their adoption; but it was contended that the Constitution contemplated
and required that the same bill and the same amendments, without change, should
be approved by both Legislatures, and that it did not follow that, because the second
Legislature adopted separately 8 out of the 17 amendments adopted by the rst
Legislature, it would have adopted the 17, or any of them, if they had been voted
upon by the second in the form adopted by the rst body. The substance of the
contention was that there had not been a concurrence of the two Legislatures on
the same amendments, according to the letter and spirit of the Constitution. The
court held that the power of the Legislature in submitting amendments could not be
distinguished from the powers of the convention, and that, as the people had
spoken and ratified the amendments, they became a part of the Constitution.
"In Westinghausen v. People, 44 Mich. 265, 6 N.W. 641, it was held that prior to
1876 a proposed amendment to the Constitution could not be submitted to the

people at any other than a general election; but, as the amendment under
consideration had been submitted after the Constitution had been changed, it had
been legally submitted and adopted.
"In State v. Powell, 77 Miss. 543, 27 South. 927, the question whether an
amendment to the Constitution had been legally submitted and adopted by the
people was held to be judicial, and not political, in its nature. The amendment under
consideration changed the Constitution by providing for an elective, instead of an
appointive, judiciary. It was contended that the amendments had been improperly
submitted, and not adopted by a majority of the qualied voters voting at the
election, as required by the Constitution. The law did not direct how the result of
the election should be determined. The Legislature by joint resolution recited that
the election had been duly held throughout the state, and, as it appeared from the
returns made to the Secretary of State, that 21,169 votes were cast in favor of, and
8,643 votes against, the amendment, it resolved 'that said amendment be, and
hereby is, inserted into the Constitution of the state of Mississippi as a part of the
Constitution.' In fact, the amendment was not submitted in the manner prescribed
by the Constitution, and it did not receive a majority of all the qualied voters
voting at the election. It was argued that the rules prescribed by the Constitution
'are all for the guidance of the Legislature, and from the very nature of the thing
the Legislature must be the exclusive judge of all questions to be measured or
determined by these rules. Whether the question be political, and certainly a
legislative one, or judicial, to be determined by the courts, this section of rules, not
only of procedure, but of nal judgment as well, condes to the separate magistracy
of the legislative department full power to hear, consider, and adjudge that
question. The Legislature puts the question to the qualified electors. The qualified
electors answer back to the Legislature. "If it shall appear" to the Legislature that its
question has been answered in the armative, the amendment is inserted and
made a part of the Constitution. The Governor and the courts have no authority to
speak at any stage of the proceedings between the sovereign and the Legislature,
and when the matter is thus concluded it is closed, and the judiciary is as powerless
to interfere as the executive.' But it was held that the question whether the
proposition submitted to the voters constituted one, or more than one, amendment,
whether the submission was according to the requirements of the Constitution, and
whether the proposition was in fact adopted, were all judicial, and not political,
questions. 'We do not,' said Chief Justice Whiteld, 'seek a jurisdiction not imposed
upon us by the Constitution. We could not, if we would, escape the exercise of that
jurisdiction which the Constitution has imposed upon us. In the particular instance
in which we are now acting, our duty to know what the Constitution of the state is,
and in accordance with our oaths to support and maintain it in its integrity, imposed
on us a most dicult and embarrassing duty, one which we have not sought, but
one which, like all others, must be discharged.'

"In Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl. 744, 881, 46 L.R.A. 251, it was held that
it was the duty of the judicial department of the government to determine whether
the legislative department or its ocers had observed the constitutional injunctions

in attempting to amend the Constitution, and to annul their acts if they had not
done so. The case is an interesting and well-considered one. The Constitution
provided the manner in which proposed amendments should be submitted to the
people, but did not provide a method for canvassing the votes. The Legislature,
having agreed to certain proposed amendments, passed an act for submitting the
same to the people. This statute provided for the transmission to the Secretary of
State of certicates showing the result of the voting throughout the state, and
made it the duty of the Governor at the designated time to summon four or more
Senators, who, with the Governor, should constitute a board of state canvassers to
canvass and estimate the votes for and against each amendment. This board was to
determine and declare which of the proposed amendments had been adopted and to
deliver a statement of the results to the Secretary of State, and 'any proposed
amendment, which by said certicate and determination of the board of canvassers
shall appear to have received in its favor the majority of all the votes cast in the
state for and against said proposed amendment, shall from the time of ling such
certicate be and become an amendment to and a part of the Constitution of the
state; and it shall be the duty of the Governor of the state forthwith, after such a
determination, to issue a proclamation declaring which of the said proposed
amendments have been adopted by the people.' This board was required to le a
statement of the result of the election, and the Governor to issue his proclamation
declaring that the amendment had been adopted and become a part of the
Constitution. At the instance of a taxpayer the Supreme Court allowed a writ of
certiorari to remove into the court for review the statement of the results of the
election made by the canvassing board, in order that it might be judicially
determined whether on the facts shown in that statement the board had legally
determined that the proposed amendment had been adopted. The Supreme Court
decided that the concurrence of the board of state canvassers and the executive
department of the government in their respective ocial functions placed the
subject-matter beyond the cognizance of the judicial department of the state. The
Court of Appeals, after a full review of the authorities, reversed this decision, and
held that the questions were of a judicial nature, and properly determinable by the
court on their merits. Mr. Justice Dixon, after stating the facts, said: 'It thus becomes
manifest that there was present in the Supreme Court, and is now pending in this
court, every element tending to maintain jurisdiction over the subject-matter,
unless it be true, as insisted, that the judicial department of the government has
not the right to consider whether the legislative department and its agencies have
observed constitutional injunctions in attempting to amend the Constitution, and to
annul their acts in case that they have not done so. That such a proposition is not
true seems to be indicated by the whole history of jurisprudence in this country.'
The court, after considering the case on the merits, held that the proper conclusion
had been drawn therefrom, and that the amendment in question was legally
submitted and adopted.
"The recent case of Rice v. Palmer, 78 Ark. 432, 96 S.W. 396, presented the
identical question which we have under consideration. In reference to the
contention that the Constitution intended to delegate to the Speaker of the House
of Representatives the power to determine whether an amendment had been
adopted, and that the question was political, and not judicial, the court observed:

'The argument has often been made in similar cases to the courts, and it is found in
many dissenting opinions; but, with probably a few exceptions, it is not found in any
prevailing opinion.'
"In State v. Tooker, 15 Mont. 8, 37 Pac. 840, 25 L.R.A. 560, it was held that the
constitutional requirement of publication of a proposed constitutional provision for
three months prior to the election at which it is to be submitted to the people is
mandatory and that noncompliance therewith renders the adoption of an
amendment of no effect."
ANNEX B
MALACAANG
MANILA
BY THE PRESIDENT OF THE PHILIPPINES
PRESIDENTIAL DECREE NO. 86-B

Defining Further the Role of Barangays (Citizens Assemblies)

WHEREAS, since their creation pursuant to Presidential Decree No. 86 dated
December 31, 1972, the Barangays (Citizens Assemblies) have petitioned the Oce
of the President to submit to them for resolution important national issues;
WHEREAS, one of the questions persistently mentioned refers to the ratication of
the Constitution proposed by the 1971 Constitutional Convention;
WHEREAS, on the basis of the said petitions, it is evident that the people believe
that the submission of the proposed Constitution to the Citizens Assemblies or
Barangays should be taken as a plebiscite in itself in view of the fact that freedom of
debate has always been limited to the leadership in political, economic and social
elds, and that it is now necessary to bring this down to the level of the people
themselves through the Barangays or Citizens Assemblies;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by
virtue of the powers in me vested by the Constitution, do hereby order that
important national issues shall from time to time be referred to the Barangays
(Citizens Assemblies) for resolution in accordance with Presidential Decree No. 86-A
dated January 5, 1973 and that the initial referendum shall include the matter of
ratification of the Constitution proposed by the 1971 Constitutional Convention.
The Secretary of the Department of Local Government
Development shall insure the implementation of this Order.

and Community

Done in the City of Manila, this 7th day of January in the year of Our Lord, nineteen
hundred and seventy-three.
(SGD.) FERDINAND E. MARCOS
By the President:

(SGD.) ALEJANDRO MELCHOR

Executive Secretary

MAKALINTAL and CASTRO, JJ.:

The preliminary question before this Court was whether or not the
petitioners had made out a sucient prima facie case in their petitions to justify
their being given due course. Considering on the one hand the urgency of the
matter and on the other hand its transcendental importance, which suggested
the need for hearing the side of the respondents before that preliminary question
was resolved, We required them to submit their comments on the petitions. After
the comments were led We considered them as motions to dismiss so that they
could be orally argued. As it turned out, the hearing lasted five days, morning and
afternoon, and could not have been more exhaustive if the petitions had been
given due course from the beginning.
The major thrust of the petitions is that the act of the Citizens Assemblies as
certied and proclaimed by the President on January 17, 1973 (Proclamation No
1102) was not an act of ratication, let alone a valid one, of the proposed
Constitution, because it was not in accordance with the existing Constitution (of
1935) and the Election Code of 1971. Other grounds are relied upon by the
petitioners in support of their basic proposition, but to our mind they are merely
subordinate and peripheral.
Article XV, Section 1, of the 1935 Constitution provides that amendments (proposed
either by Congress in joint session or by a Convention called by it for the purpose)
"shall be valid as part of this Constitution when approved by a majority of the votes
cast at an election at which the amendments are submitted to the people for their
ratication." At the time that Constitution was approved by the Constitutional
Convention on February 8, 1935, and ratied in a plebiscite held on the following
May 14, the word "election" had already a denite meaning in our law and
jurisprudence. It was not a vague and amorphous concept, but a procedure
prescribed by statute for ascertaining the people's choices among candidates for
public oces, or their will on important matters submitted to them, pursuant to
law, for approval. It was in this sense that the word was used by the framers in
Article XV (also in Articles VI and VII), and in accordance with such procedure that
plebiscites were held to ratify the very same Constitution in 1935 as well as the
subsequent amendments thereto, thus: in 1939 (Ordinance appended to the
Constitution); 1940 (establishment of a bicameral legislature; eligibility of the
President and the Vice President for re election: creation of the Commission of
Elections); 1947 (Parity Amendment); and 1967 (increase in membership of the
House of Representatives and eligibility of members of Congress to run for the
Constitutional Convention without forfeiture of their offices).
The Election Code of 1971, in its Section 2, states that "all elections of public officers
except barrio ocials and plebiscites shall be conducted in the manner provided by
this Code." This is a statutory requirement designed, as were the other election laws
previously in force, to carry out the constitutional mandate relative to the exercise

of the right of surage, and with specic reference to the term "plebiscites," the
provision of Article XV regarding ratification of constitutional amendments.
The manner of conducting elections and plebiscites provided by the Code is spelled
out in other sections thereof. Section 99 requires that qualied voters be registered
in a permanent list, the qualications being those set forth in Article V, Section 1, of
the 1935 Constitution on the basis of age (21), literacy and residence. These
qualications are reiterated in Section 101 of the Election Code. Section 102
enumerates the classes of persons disqualified to vote. Succeeding sections prescribe
the election paraphernalia to be used, the procedure for registering voters, the
records of registration and the custody thereof, the description and printing of
ocial ballots, the actual casting of votes and their subsequent counting by the
boards of inspectors, the rules for appreciation of ballots, and then the canvass and
proclamation of the results.

With specic reference to the ratication of the 1972 draft Constitution, several
additional circumstances should be considered:
(1)This draft was prepared and approved by a Convention which had been convened
pursuant to Resolution No. 2 passed by Congress on March 16, 1967, which
provides:
"Sec. 7.The amendments proposed by the Convention shall be
valid and considered part of the Constitution when approved by a
majority of the votes cast in an election at which they are submitted to
the people for their ratication pursuant to Article XV of the
Constitution."

(2)Article XVII, Section 16, of the draft itself states:

"Sec. 16.This Constitution shall take eect immediately upon its ratication
by a majority of the votes cast in a plebiscite called for the purpose and,
except as herein provided, shall supersede the Constitution of nineteen
hundred and thirty-five and all amendments thereto."

The same procedure is prescribed in Article XVI, Section 2, for the ratication of any
future amendment to or revision of the said Constitution.
(3)After the draft Constitution was approved by the Constitutional Convention on
November 30, 1972 the said body adopted Resolution No. 5843, proposing "to
President Ferdinand E. Marcos that a decree be issued calling a plebiscite for the
ratication of the proposed New Constitution on such appropriate date as he shall
determine and providing for the necessary funds therefor." Pursuant to said
Resolution the President issued Decree No. 73 on the same day, calling a plebiscite
to be held on January 15, 1973, at which the proposed Constitution "shall be
submitted to the people for ratication or rejection." The Decree had eighteen (18)
sections in all, prescribing in detail the dierent steps to be taken to carry out the
process of ratication, such as: (a) publication of the proposed Constitution in

English and Pilipino; (b) freedom of information and discussion; (c) registration of
voters: (d) appointment of boards of election inspectors and designation of watchers
in each precinct; (e) printing of ocial ballots; (f) manner of voting to insure
freedom and secrecy thereof; (g) canvass of plebiscite returns; and (h) in general,
compliance with the provisions of the Election Code of 1971, with the Commission
on Elections exercising its constitutional and statutory powers of supervision of the
entire process.
There can hardly be any doubt that in everybody's view from the framers of the
1935 Constitution through all the Congresses since then to the 1971 Constitutional
Convention amendments to the Constitution should be ratied in only one way,
that is, in an election or plebiscite held in accordance with law and participated in
only by qualied and duly registered voters. Indeed, so concerned was this Court
with the importance and indispensability of complying with the mandate of the
(1935) Constitution in this respect that in the recent case of Tolentino vs.
Commission on Elections, No. L-34150, October 16, 1971 (41 SCRA 702), a
resolution of the (1971) Constitutional Convention submitting a proposed
amendment for ratication to a plebiscite to be held in November 1971 was
declared null and void. The amendment sought to reduce the voting age from
twenty-one to eighteen years and was approved by the Convention for submission
to a plebiscite ahead of and separately from other amendments still being or to be
considered by it, so as to enable the youth to be thus enfranchised to participate in
the plebiscite for the ratication of such other amendments later. This Court held
that such separate submission was violative of Article XV, Section 1, of the
Constitution, which contemplated that "all the amendments to be proposed by the
same Convention must be submitted to the people in a single 'election' or
plebiscite." * Thus a grammatical construction based on a singular, instead of plural,
rendition of the word "election" was considered a sucient ground to rule out the
plebiscite which had been called to ratify a proposed amendment in accordance with
the procedure and under all the safeguards provided in the Election Law.
In the cases now before Us what is at issue is not merely the ratication of just one
amendment, as in Tolentino vs. COMELEC, but the ratication of an entire charter
setting up a new form of government; and the issue has arisen not because of a
disputed construction of one word or one provision in the 1935 Constitution but
because no election or plebiscite in accordance with that Constitution and with the
Election Code of 1971 was held for the purpose of such ratification.
The Citizens Assemblies which purportedly ratied the draft Constitution were
created by Presidential Decree No. 86 dated December 31, 1972, "to broaden the
base of citizen participation in the democratic process and to aord ample
opportunities for the citizenry to express their views on important national issues."
The Assemblies "shall consist of all persons who are residents of the barrio, district
or ward for at least six months, fifteen years of age or over, citizens of the
Philippines and who are registered in the lists of Citizen Assembly members kept by
the barrio, district or ward secretary." By Presidential Decree No. 86-A, dated
January 5, 1973, the Assemblies were convened for a referendum between January
10 and 15, to "consider vital national issues now confronting the country, like the

holding of the plebiscite on the new Constitution, the continuation of martial rule,
the convening of Congress on January 22, 1973, and the holding of elections in
November 1973."
On January 5, 1973 the newspapers came out with a list of four questions to be
submitted to the Citizens Assemblies, the fourth one being as follows: "How soon
would you like the plebiscite on the new Constitution to be held?" It should be
noted in this connection that the President had previously announced that he had
ordered the postponement of the plebiscite which he had called for January 15,
1973 (Presidential Decree No. 73) for the ratication of the draft Constitution, and
that he was considering two new dates for the purpose February 19 or March 5;
that he had ordered that the registration of voters (pursuant to Decree No. 73) be
extended to accommodate new voters; and that copies of the new Constitution
would be distributed in eight dialects to the people. (Bulletin Today , December 24,
1972.)
On January 10, 1973 it was reported that one more question would be added to the
original four which were to be submitted to the Citizens Assemblies. The question
concerning the plebiscite was reworded as follows: "Do yon like the plebiscite to be
held later?" The implication, it may likewise be noted, was that the Assemblies
should express their views as to when the plebiscite should be held, not as to
whether or not it should be held at all.
The next day, January 11, it was reported that six additional questions would be
submitted, namely:
"(1)Do you approve of the citizens assemblies as the base of popular
government to decide issues of national interest?
"(2)Do you approve of the new Constitution?
"(3)Do you want a plebiscite to be called to ratify the new Constitution?
"(4)Do you want the elections to be held in November, 1973 in accordance
with the provisions of the 1935 Constitution?
"(5)If the elections would not be held, when do you want the next elections
to be called?
"(6)Do you want martial law to continue?" [Bulletin Today , January 11, 1973:
italics supplied].

Appended to the six additional questions above quoted were the suggested answers,
thus:
"COMMENTS ON
QUESTION No. 1
In order to broaden the base of citizens' participation in
government.

QUESTION No. 2
But we do not want the Ad Interim Assembly to be convoked. Or
if it is to be convened at all, it should not be done so until after at
least seven (7) years from the approval of the New Constitution
by the Citizens Assemblies.
QUESTION No. 3
If the Citizens Assemblies approve of the New Constitution, then
the new Constitution should be deemed ratified.
The vote of the Citizens Assemblies should already be considered
the plebiscite on the New Constitution.
QUESTION No. 4
We are sick and tired of too frequent elections. We are fed up
with politics, of so many debates and so much expenses.
QUESTION No. 5
Probably a period of at least seven (7) years moratorium on
elections will be enough for stability to be established in the
country, for reforms to take root and normalcy to return.
QUESTION No. 6
We want President Marcos to continue with Martial Law. We want
him to exercise his powers with more authority. We want him to
be strong and rm so that he can accomplish all his reform
program and establish normalcy in the country. If all other
measures fail, we want President Marcos to declare a
revolutionary government along the lines of the new Constitution
without the ad interim Assembly."

So it was that on January 11, 1973, the second day of the purported referendum,
the suggestion was broached, for the rst time, that the plebiscite should be done
away with and a favorable vote by the Assemblies deemed equivalent to
ratication. This was done, not in the questionnaire itself, but in the suggested
answer to question No. 3. Strangely, however, it was not similarly suggested that
an unfavorable vote be considered as rejection.
There should be no serious dispute as to the fact that the manner in which the
voting was conducted in the Citizens' Assemblies, assuming that such voting was
held, was not within the intendment of Article XV, Section 1, of the 1935
Constitution nor in accordance with the Election Code of 1971. The referendum can
by no means be considered as the plebiscite contemplated in Section 2 of said Code
and in Article XVII, Section 16, of the draft Constitution itself, or as the election
intended by Congress when it passed Resolution No. 2 on March 16, 1967 calling a
Convention for the revision of the 1935 Constitution. The Citizens Assemblies were

not limited to qualied, let alone registered, voters, but included all citizens from
the age of fteen, and regardless of whether or not they were illiterates, feebleminded, or ex-convicts * these being the classes of persons expressly disqualied
from voting by Section 102 of the Election Code. In short, the constitutional and
statutory qualications were not considered in the determination of who should
participate. No ocial ballots were used in the voting; it was done mostly by
acclamation or open show of hands. Secrecy, which is one of the essential features
of the election process, was not therefore observed. No set of rules for counting the
votes or of tabulating them and reporting the gures was prescribed or followed.
The Commission on Elections, which is the constitutional body charged with the
enforcement and administration of all laws relative to the conduct of elections, took
no part at all, either by way of supervision or in the assessment of the results.

It has been suggested that since according to Proclamation No. 1102 the
overwhelming majority of all the members of the Citizens Assemblies had voted for
the adoption of the proposed Constitution there was a substantial compliance with
Article XV, Section 1, of the 1935 Constitution and with the Election Code of 1971.
The suggestion misses the point entirely. It is of the essence of a valid exercise of
the right of surage that not only must a majority or plurality of the voters carry
the day but that the same must be duly ascertained in accordance with the
procedure prescribed by law. In other words the very existence of such majority or
plurality depends upon the manner of its ascertainment, and to conclude that it
exists even if it has not been ascertained according to law is simply to beg the issue,
or to assume the very fact to be established. Otherwise no election or plebiscite
could be questioned for non-compliance with the provisions of the Election Law as
long as it is certied that a majority of the citizens had voted favorably or adversely
on whatever it was that was submitted to them to vote upon.
However, a nding that the ratication of the draft Constitution by the Citizens
Assemblies, as certied by the President in Proclamation No. 1102, was not in
accordance with the constitutional and statutory procedure laid down for the
purpose does not quite resolve the questions raised in these cases. Such a nding, in
our opinion, is on a matter which is essentially justiciable, that is, within the power
of this Court to inquire into. It imports nothing more than a simple reading and
application of the pertinent provisions of the 1935 Constitution, of the Election
Code and of other related laws and ocial acts. No question of wisdom or of policy is
involved. But from this nding it does not necessarily follow that this Court may
justiably declare that the Constitution has not become. eective, and for that
reason give due course to these petitions or grant the writs herein prayed for. The
eectivity of the said Constitution, in the nal analysis, is the basic and ultimate
question posed by these cases, to resolve which considerations other than judicial,
and therefore beyond the competence of this Court, are relevant and unavoidable.
Several theories have been advanced respectively by the parties. The petitioners lay
stress on the invalidity of the ratication process adopted by the Citizens Assemblies
and on that premise would have this Court grant the reliefs they seek. The

respondents represented by the Solicitor General, whose theory may be taken as

the ocial position of the Government, challenge the jurisdiction of this Court on
the ground that the questions raised in the petitions are political and therefore nonjusticiable, and that in any case popular acquiescence in the new Constitution and
the prospect of unsettling acts done in reliance thereon should caution against
interposition of the power of judicial review. Respondents Gil J. Puyat and Jose Roy
(in L 36165) in their respective capacities as President and President Pro Tempore of
the Senate of the Philippines, and through their counsel, Senator Arturo Tolentino,
likewise invoke the political question doctrine, but on a ground not concurred in by
the Solicitor General, namely, that "the approval of the 1973 Constitution by the
people was made under a revolutionary government, in the course of a successful
political revolution, which was converted by act of the people to the present de jure
government under the 1973 Constitution."
Heretofore, constitutional disputes which have come before this Court for
adjudication proceeded on the assumption, conceded by all, that the Constitution
was in full force and eect, with the power and authority of the entire Government
behind it; and the task of this Court was simply to determine whether or not the
particular act or statute that was being challenged contravened some rule or
mandate of that Constitution. The process employed was one of interpretation and
synthesis. In the cases at bar there is no such assumption: the Constitution (1935)
has been derogated and its continued existence as well as the validity of the act of
derogation is the issue. The legal problem posed by the situation is aggravated by
the fact that the political arms of the Government the Executive Departments
and the two Houses of Congress have accepted the new Constitution as eective:
the former by organizing themselves and discharging their functions under it, and
the latter by convening on January 22, 1973 or at any time thereafter, as ordained
by the 1935 Constitution, and in the case of a majority of the members by
expressing their option to serve in the Interim National Assembly in accordance
with Article XVII, Section 2, of the 1973 Constitution. *
The theory advanced by Senator Tolentino, as counsel for respondents Puyat and
Roy, may be taken up and restated at some length if only because it would
constitute, if sustained, the most convenient ground for the invocation of the
political-question doctrine. In support of his theory, Senator Tolentino contends that
after President Marcos declared martial law on September 21, 1972 (Proclamation
No. 1081) he established a revolutionary government when he issued General
Order No. 1 the next day, wherein he proclaimed "that I shall govern the nation and
direct the operation of the entire government, including all its agencies and
instrumentalities, in my capacity, and shall exercise all the powers and prerogatives
appurtenant and incident to my position as such Commander-in-Chief of all the
Armed Forces of the Philippines." By this order, it is pointed out, the Commander-inChief of the Armed Forces assumed all the powers of government executive,
legislative, and judicial; and thereafter proceeded to exercise such powers by a
series of Orders and Decrees which amounted to legislative enactments not justied
under martial law and, in some instances, trenched upon the domain of the
judiciary, by removing from its jurisdiction certain classes of cases, such as "those
involving the validity, legality, or constitutionality of Proclamation No. 1081, or of

any decree, order or act issued, promulgated or performed by me or by my duly

designated representative pursuant thereto." (General Order No. 3 as amended by
General Order No. 3-A, dated September 24, 1972.) The ratication by the Citizens
Assemblies, it is averred, was the culminating act of the revolution, which
thereupon converted the government into a de jure one under the 1973
Constitution.
If indeed it be accepted that the Citizens Assemblies had ratied the 1973
Constitution and that such ratication as well as the establishment of the
government thereunder formed part of a revolution, albeit peaceful, then the issue
of whether or not that Constitution has become eective and, as a necessary
corollary, whether or not the government legitimately functions under it instead of
under the 1935 Constitution, is political and therefore non- judicial in nature. Under
such a postulate what the people did in the Citizens Assemblies should be taken as
an exercise of the ultimate sovereign power. If they had risen up in arms and by
force deposed the then existing government and set up a new government in its
place, there could not be the least doubt that their act would be political and not
subject to judicial review but only to the judgment of the same body politic act, in
the context just set forth, is based on realities. If a new government gains authority
and dominance through force, it can be eectively challenged only by a stronger
force; no judicial dictum can prevail against it. We do not see that the situation
would be any dierent, as far as the doctrine of judicial review is concerned, if no
force had been resorted to and the people, in deance of the existing Constitution
not peacefully because of the absence of any appreciable opposition, ordained a new
Constitution and succeeded in having the government operate under it. Against
such a reality there can be no adequate judicial relief; and so courts forbear to take
cognizance of the question but leave it to be decided through political means.
The logic of the political-question doctrine is illustrated in a statement of the U.S.
Supreme Court in a case relied upon, curiously enough, by the Solicitor General,
who disagrees with the revolutionary government theory of Senator Tolentino. The
case involved the issue of which of two opposing governments struggling for
supremacy in the State of Rhode Island was the lawful one. The issue had
previously come up in several other cases before the courts of the State, which
uniformly held that the inquiry belonged to the political power and not to the
judicial. Commenting on the ruling thus arrived at, the U.S. Supreme Court said:
"And if a State court should enter upon the inquiry proposed in this case, and should
come to the conclusion that the government under which it acted had been put
aside and displaced by an opposing government, it would cease to be a court, and
incapable of pronouncing a judicial decision upon the question it undertook to try. If
it decides at all as a court, it necessarily arms the existence and authority of the
government under which it is exercising judicial power." In other words, since the
court would have no choice but to decide in one way alone in order to be able to
decide at all, the question could not be considered proper for judicial determination.
It should be noted that the above statement from Luther vs. Borden would be
applicable in the cases at bar only on the premise that the ratication of the
Constitution was a revolutionary act and that the government now functioning

under it is the product of such revolution. However, we are not prepared to agree
that the premise is justified.
In the rst place, with specic reference to the questioned ratication, several
signicant circumstances may be noted. (1) The Citizens Assemblies were created,
according to Presidential Decree No. 86, "to broaden the base of citizen participation
in the democratic process and to aord ample opportunities for the citizenry to
express their views on important national issues." (2) The President announced,
according to the Daily Express of January 2, 1973, that "the referendum will be in
the nature of a loose consultation with the people." (3) The question, as submitted
to them on the particular point at issue here, was "Do you approve of the
Constitution?" (4) President Marcos, in proclaiming that the Constitution had been
ratied, stated as follows: "(S)ince the referendum results show that more than
ninety-ve (95) per cent of the members of the Barangays (Citizens Assemblies) are
in favor of the new Constitution, the Katipunan ng mga Barangay has strongly
recommended that the new Constitution should already be deemed ratied by the
Filipino people." (5) There was not enough time for the Citizens Assemblies to really
familiarize themselves with the Constitution, much less with the many other
subjects that were submitted to them. In fact the plebiscite planned for January 15,
1973 under Presidential Decree No. 73 had been postponed to an indenite date,
the reasons for the postponement being, as attributed to the President in the
newspapers, that "there was little time to campaign for or against ratication"
(Daily Express, Dec. 22, 1972); that he would base his decision (as to the date of the
plebiscite) on the compliance by the Commission (on Elections) on the publication
requirement of the new Charter and on the position taken by national leaders"
(Daily Express, Dec. 23, 1972); and that "the postponement would give us more
time to debate on the merits of the Charter." (Bulletin Today, Dec. 24, 1972.)

The circumstances above enumerated lead us to the conclusion that the Citizens
Assemblies could not have understood the referendum to be for the ratication of
the Constitution, but only for the expression of their views on a consultative basis.
Indeed, if the expression of those views had been intended as an act of ratication
(or of rejection as a logical corollary) there would have been no need for the
Katipunan ng mga Barangay to recommend that the Constitution should already be
deemed ratied, for recommendation imports recognition of some higher authority
in whom the final decision rests.
But then the President, pursuant to such recommendation, did proclaim that the
Constitution had been ratied and had come into eect. The more relevant
consideration, therefore, as far as we can see, should be as to what the President
had in mind in convening the Citizens Assemblies, submitting the Constitution to
them and proclaiming that the favorable expression of their views was an act of
ratication. In this respect subjective factors, which defy judicial analysis and
adjudication, are necessarily involved.
In positing the problem within an identiable frame of reference we nd no need to

consider whether or not the regime established by President Marcos since he

declared martial law and under which the new Constitution was submitted to the
Citizens Assemblies was a revolutionary one. The pivotal question is rather whether
or not the eectivity of the said Constitution by virtue of Presidential Proclamation
No. 1102, upon the recommendation of the Katipunan ng mga Barangay, was
intended to be denite and irrevocable, regardless of non-compliance with the
pertinent constitutional and statutory provisions prescribing the procedure for
ratification. We must confess that after considering all the available evidence and all
the relevant circumstances we have found no reasonably reliable answer to the
question. On one hand we read, for instance, the following public statements of the
President:
Speaking about the proclamation of martial law, he said:
"I reiterate what I have said in the past: there is no turning back for our
people.
"We have committed ourselves to this revolution. We have pledged to it our
future, our fortunes, our lives, our destiny. We have burned our bridges
behind us. Let no man misunderstand the strength of our resolution." (A
Report to the National, Jan. 7, 1913.)

On the occasion of the signing of Proclamation No. 1102 on January 17, 1973,
President said the following, among other things:
". . . We can, perhaps delimit the power of the people to speak on legal
matters, on justiciable matters, on matters that may come before the
experts and interpreters of the law. But we cannot disqualify the people
from speaking on what we and the people consider purely political matters
especially those that affect the fundamental law of the land.
". . . The political questions that were presented to the people are exactly
those that refer to the form of government which the people want . . . The
implications of disregarding the people's will are too awesome to be even
considered. For if any power in government should even dare to disregard
the people's will there would be valid ground for revolt."
". . . Let it be known to everybody that the people have spoken and they will
no longer tolerate any attempt to undermine the stability of their Republic;
they will rise up in arms not in revolt against the Republic but in protection of
the Republic which they have installed. It is quite clear when the people say,
we ratify the Constitution, that they mean they will not discard, the
Constitution."

On January 19, 1973 the Daily Express published a statement of the President made
the day before, from which the following portion is quoted:
". . . the times are too grave and the stakes too high for us to permit the
customary concessions to traditional democratic process to hold back our
people's clear and unequivocal resolve and mandate to meet and overcome

the extraordinary challenges presented by these extraordinary times."

On the same occasion of the signing of Proclamation No. 1102 the President made
pointed reference to "the demand of some of our citizens . . . that when all other
measures should fail, that the President be directed to organize and establish a
Revolutionary Government," but in the next breath added: ". . . if we do ratify the
Constitution how can we speak of a Revolutionary Government? They cannot be
compatible . . ." "(I)t is my feeling," he said, "that the Citizens' Assemblies which
submitted this recommendation merely sought to articulate their impatience with
the status quo that has brought about anarchy, confusion and misery to the masses
. . ." The only alternatives which the President clearly implied by the foregoing
statements were the ratication of the new Constitution and the establishment of a
revolutionary government, the latter being unnecessary, in his opinion, because
precisely the Constitution had been ratied. The third obvious alternative was
entirely ruled out, namely, a return to the 1935 Constitution, for it was the status
quo under that Constitution that had caused "anarchy, confusion and misery." The
message seems clear: rather than return to such status quo, he would need the
recommendation of the Citizens' Assemblies to establish a revolutionary
government, because that would be the only other way to carry out the reforms he
had envisioned and initiated reforms which, in all fairness and honesty, must be
given credit for the improved quality of life in its many aspects, except only in the
field of civil liberties.
If there is any signicance, both explicit and implicit, and certainly unmistakable, in
the foregoing pronouncements, it is that the step taken in connection with the
ratication of the Constitution was meant to be irreversible, and that nothing
anyone could say would make the least dierence. And if this is a correct and
accurate assessment of the situation, then we would say that since it has been
brought about by political action and is now maintained by the government that is
in undisputed authority and dominance, the matter lies beyond the power of judicial
review.
On the other hand, by avowals no less signicant if not so emphatic in terms,
President Marcos has professed fealty to the Constitution. In "Today's Revolution:
Democracy" he says:
"I believe, therefore, in the necessity of Revolution as an instrument of
individual and social change . . . but that in a democratic society, revolution
is of necessity, constitutional, peaceful, and legal."

In his TV address of September 23, 1972, President Marcos told the nation:
"I have proclaimed martial law in accordance with the powers vested in the
President by the Constitution of the Philippines.
"xxx xxx xxx
"I repeat, this is not a military takeover of civil government functions. The
Government of the Republic of the Philippines which was established by our

people in 1946 continues.

"xxx xxx xxx
"I assure you that I am utilizing this power vested in me by the Constitution
to save the Republic and reform our society . . .
"I have had to use this constitutional power in order that we may not
completely lose the civil rights and freedom which we cherish . . .
". . . We are against the wall. We must now defend the Republic with the
stronger powers of the Constitution."
(Vital Documents, pp. 1-12; italics supplied)

In the report of an interview granted by the President to the Newsweek Magazine

(published in the issue of January 29, 1973), the following appears:
"xxx xxx xxx
"Q.Now that you have gotten o the constitutional track, won't you be
in serious trouble if you run into critical problems with your
programs?
"A.I have never gotten o the constitutional track. Everything I am
doing is in accordance with the 1930 Constitution. The only thing
is that instead of 18 year olds voting, we have allowed 15-yearolds the night to vote. But the 15-year-olds of today are high
school students, if not graduates, and they are better informed
than my contemporaries at that age. On the matter of whether it
is constitutional to proclaim martial law, it is constitutional
because the Constitution provides for it in the event of invasion,
insurrection, rebellion or immediate danger thereof. We may
quarrel about whether what we have gone through is sucient
cause to proclaim martial law but at the very least there is a
danger of rebellion because so many of our soldiers have been
killed. You must remember this (martial law provision) was lifted
from the American legislation that was the fundamental law of our
country.
"xxx xxx xxx"

In the light of this seeming ambivalence, the choice of what course of action to
pursue belongs to the President We have earlier made reference to subjective
factors on which this Court, to our mind, is in no position to pass judgment. Among
them is the President's own assessment of the will of the people as expressed
through the Citizens Assemblies and of the importance of the 1973 Constitution to
the successful implementation of the social and economic reforms he has started or
envisioned. If he should decide that there is no turning back, that what the people
recommended through the Citizens Assemblies, as they were reported to him,
demanded that the action he took pursuant thereto be nal and irrevocable, then

judicial review is out of the question.

In articulating our view that the procedure of ratication that was followed was not
in accordance with the 1935 Constitution and related statutes, we have discharged
our sworn duty as we conceive it to be. The President should now perhaps decide, if
he has not already decided, whether adherence to such procedure is weighty
enough a consideration, if only to dispel any cloud of doubt that may now and in the
future shroud the nation's Charter.

In the deliberations of this Court one of the issues formulated for resolution is
whether or not the new Constitution, since its submission to the Citizens
Assemblies, has found acceptance among the people, such issue being related to the
political question theory propounded by the respondents. We have not tarried on
the point at all since we nd no reliable basis on which to form a judgment. Under a
regime of martial law, with the free expression of opinions through the usual media
vehicles restricted, we have no means of knowing, to the point of judicial certainty,
whether the people have accepted the Constitution. In any event, we do not nd
the issue decisive insofar as our vote in these cases is concerned. To interpret the
Constitution that is judicial. That the Constitution should be deemed in eect
because of popular acquiescence that is political, and therefore beyond the
domain of judicial review.
We therefore vote not to give due course to the instant petitions.

Separate Opinions
BARREDO, J.:
As far as I am concerned, I regard the present petitions as no more than
mere reiterations of the Supplemental Petitions led by Counsel Lorenzo M.
Taada on January 15, 1973 in the so called Plebiscite Cases decided by this
Court on January 22, 1973. Of course, there are amplications of some of the
grounds previously alleged, and in the course of the unprecedented ve day
hearing that was held from February 12 to 16 last, more extensive and
illuminating arguments were heard by Us, but, in my estimation, and with due
recognition of the sincerity, brilliance and eloquence of counsels, nothing more
cogent and compelling than what had already been previously presented by
Counsel Taada is before Us now. Accordingly, I cannot see any reason why I
should change the position I took in regard to the earlier cases. I reiterate,
therefore, the vote I cast when these petitions were initially considered by the
Court, namely, to dismiss them.
In view, however, of the transcendental importance of the issues before the Court
and the signicance to our people and in history of the individual stands of the
members of the Court in relation to said issues and to the nal outcome of these

cases, and considering that I reserved before the ling of a more extended opinion, I
will take this opportunity to explain further why I hold that the 1973 Constitution is
already in force, if only to clarify that apart from the people's right of revolution to
which I made pointed reference in my previous opinion, r can see now, after further
reection, that the vote of the people in the referendum in the Citizens Assemblies
held on January 10 to 15, 1973, upon the result of which Proclamation 1102 is
based, may be viewed more importantly as a political act than as a purely legal one,
with the result that such vote to consider the 1973 Constitution as ratied without
the necessity of holding a plebiscite in the form followed in the previous ratication
plebiscites in 1935 of the Constitution itself, 1937 of women's surage, 1939 of the
amendments to the Ordinance Appended to the Constitution, 1940 of the reelection
of the President, the bicameral legislature and the Commission on Elections, 1947
of the parity amendments and 1967, rejecting the proposed increase in the
members of the House of Representatives and eligibility of members of Congress to
the Constitutional Convention, may be deemed as a valid ratication substantially
in compliance with the basic intent of Article XV of the 1935 Constitution. If indeed
this explanation may be considered as a modication of my rationalization then, I
wish to emphasize that my position as to the fundamental issue regarding the
enforceability of the new Constitution is even rmer now than ever before. As I
shall elucidate anon, paramount considerations of national import have led me to
the conviction that the best interests of all concerned would be best served by the
Supreme Court holding that the 1973 Constitution is now in force, not necessarily
as a consequence of the revolutionary concept previously suggested by me, but
upon the ground that as a political, more than as a legal, act of the people, the
result of the referendum may be construed as a compliance with the substantiality
of Article XV of the 1935 Constitution.
I.
The facts that gave rise to these proceedings are historical and well known.
Generally, they may be taken judicial notice of. They revolve around the purported
ratication of the Constitution of 1973 declared in Proclamation 1102 issued by the
President on January 17, 1973.
Pursuant to a joint resolution of the Congress sitting as a constituent assembly
approved on March 16, 1967, delegates to a constitutional convention to propose
amendments to the Constitution of 1935 were elected in accordance with the
implementing law, Republic Act 6132, on November 10, 1970. Known as the
Constitutional Convention of 1971, the assembly began its sessions on June 1,
1971. After encountering a lot of diculties, due to bitter rivalries over important
positions and committees and an incomprehensible fear of overconcentrating
powers in their ocers, the delegates went about their work in comparatively slow
pace, and by the third quarter of 1972 had finished deliberations and second-reading
voting only on an insignicant number of proposals until September 21, 1972,
when the President, not altogether unexpectedly, yet abruptly, issued Proclamation
1081 declaring martial law throughout the country. An attempt was made to have
the Convention recessed until after the lifting of martial law, and not long after the
motion of Delegate Kalaw to such eect was turned down, the activities within the

assembly shifted to high gear. As if unmindful of the arrest and continued detention
of several of its members, the convention gathered swift momentum in its work,
and on November 30, 1972, it approved by overwhelming vote the draft of a
complete constitution, instead of mere specic amendments of particular portions of
the Constitution of 1935. Needless to say, before martial law was declared, there
was full and unlimited coverage of the workings in the convention by the mass
media. At the same time, public debates and discussions on various aspects of
proposed amendments were not uncommon.
Earlier, on November 22, 1972, the Convention had approved Resolution No. 5843
proposing "to President Ferdinand E. Marcos that a decree be issued calling a
plebiscite for the ratication of the proposed new Constitution on such appropriate
date as he shall determine and providing for the necessary funds there for." Acting
under this authority, on December 1, 1972, the President issued Presidential Decree
No. 73 submitting the draft constitution for ratication by the people at a plebiscite
set for January 15, 1973. This order contained provisions more or less similar to the
plebiscite laws passed by Congress relative to the past plebiscites held in connection
with previous proposed amendments.
In connection with the plebiscite thus contemplated, General Order No. 17 was
issued ordering and enjoining the authorities to allow and encourage public and free
discussions on the proposed constitution. Not only this, subsequently, under date of
December 17, 1972, the President ordered the suspension of the eects of martial
law and lifted the suspension of the privilege of the writ of habeas corpus insofar as
activities connected with the ratication of the draft constitution were concerned.
These two orders were not, however, to last very long. On January 7, 1973, the
President, invoking information related to him that the area of public debate and
discussion he had opened by his previous orders was being taken advantage of by
subversive elements to defeat the purposes for which they were issued and to
foment public confusion, withdrew said orders and enjoined full and stricter
implementation of martial law.
In the meantime, the President had issued on December 31, 1972 Presidential
Decree No. 86 creating Citizens Assemblies "so as to aord ample opportunities for
the citizenry to express their views on important national issues" and one of the
questions presented to said assemblies was: "Do you like the plebiscite on the
proposed Constitution to be held later" So, in the same order of January 7, 1973,
General Order No. 20, the President ordered, "that the plebiscite scheduled to be
held on January 15, 1973, be postponed until further notice."
In the meanwhile also, on January 5, 1973, the President issued Presidential Decree
No. 86-A providing as follows:
"PRESIDENTIAL DECREE NO. 86-A
STRENGTHENING AND DEFINING THE ROLE OF
BARANGAYS (CITIZENS ASSEMBLIES )

WHEREAS, on the basis of preliminary and initial reports from the

eld as gathered from barangays (citizens assemblies) that have so far
been established, the people would like to decide for themselves
questions or issues, both local and national, aecting their day to day
lives and their future;
WHEREAS, the barangays (citizens assemblies) would like
themselves to be the vehicle for expressing the views of the people on
important national issues;
WHEREAS, such barangays (citizens assemblies) desire that they
be given legal status and due recognition as constituting the genuine,
legitimate and valid expression of the popular will; and
WHEREAS, the people would like the citizens assemblies to
conduct immediately a referendum on certain specied questions such
as the ratication of the new Constitution, continuance of martial law,
the convening of Congress on January 22, 1973, and the elections in
November 1973 pursuant to the 1935 Constitution.
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers vested in me by the constitution as
Commander-in-Chief of all Armed Forces of the Philippines, do hereby
declare as part of the law of the land the following:
1.The present barangays (citizens assemblies) are created under
Presidential Decree No. 86 dated December 31, 1972, shall constitute
the base for citizen participation in governmental aairs and their
collective views shall be considered in the formulation of national
policies or programs and, wherever practicable, shall be translated into
concrete and specific decision;

2.Such barangays (citizens assemblies) shall consider vital

national issues now confronting the country, like the holding of the
plebiscite on the new Constitution, the continuation of martial rule, the
convening of Congress on January 22, 1973, and the holding of
elections in November 1973, and others in the future, which shall serve
as guide or basis for action or decision by the national government;
3.The barangays (citizens assemblies) shall conduct between
January 10 and 15, 1973, a referendum on important national issues,
including those specied in paragraph 2 hereof, and submit the results
thereof to the Department of Local Governments and Community
Development immediately thereafter, pursuant to the express will of the
people as reected in the reports gathered from the many thousands
of barangays (citizens assemblies) throughout the country.
4.This Decree shall take effect immediately.

Done in the City of Manila, this 5th day of January, in the year of
Our Lord, nineteen hundred and seventy three."

And on January 7, 1973, this was followed by Presidential Decree No. 86-B
reading thus:
"PRESIDENTIAL DECREE NO. 86-B
DEFINING FURTHER THE ROLE OF BARANGAYS (CITIZENS
ASSEMBLIES)
WHEREAS, since their creation pursuant to Presidential Decree
No. 86 dated December 31, 1972, the Barangays (Citizens Assemblies)
have petitioned the Oce of the President to submit to them for
resolution important national issues;
WHEREAS, one of the questions persistently mentioned refers to
the ratication of the Constitution proposed by the 1971 Constitutional
Convention;
"WHEREAS, on the basis of the said petitions, it is evident that the
people believe that the submission of the proposed Constitution to the
Citizens Assemblies or Barangays should be taken as a plebiscite in
itself in view of the fact that freedom of debate has always been limited
to the leadership in political, economic and social elds, and that it is
now necessary to bring this down to the level of the people themselves
through the Barangays or Citizens Assemblies;
NOW THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers in me vested by the Constitution, do
hereby order that important national issues shall from time to time be
referred to the Barangays (Citizens Assemblies) for resolution in
accordance with Presidential Decree No. 86-A dated January 5, 1973
and that the initial referendum shall include the matter of ratication of
the Constitution proposed by the 1971 Constitutional Convention.
The Secretary of the Department of Local Governments and
Community Development shall insure the implementation of this Order.
Done in the City of Manila, this 7th day of January in the year of
Our Lord, nineteen hundred and seventy three."

And so it was that by January 10, 1973, when the Citizens Assemblies thus created
started the referendum which was held from said date to January 15, 1973, the
following questions were submitted to them:
"(1)Do you like the New Society?
(2)Do you like the reforms under martial law?
"(3)Do you like Congress again to hold sessions?

"(4)Do you like the plebiscite to be held later?

"(5)Do you like the way President Marcos is running the aairs of
the government?."

but on January 11, 1973, six questions were added as follows:

"(1)Do you approve of the citizens assemblies as the base of
popular government to decide issues of national interests?
(2)Do you approve of the new Constitution ?
(3)Do you want a plebiscite to be called to ratify the new
Constitution?
"(4)Do you want the elections to be held in November, 1973 in
accordance with the provisions of the 1935 Constitution?
"(5)If the elections would not be held, when do you want the next
elections to be called?
"(6)Do you want martial law to continue?"

It is not seriously denied that together with the questions, the voters were
furnished "comments" on the said questions more or less suggestive of the answer
desired. It may be assumed that the said "comments" came from ocial sources,
albeit specically unidentied. As petitioners point out, the most relevant of these
"comments" were the following:
"COMMENTS ON
QUESTION No. 2
But we do not want the Ad Interim Assembly to be convoked. Or
if it is to be convened at all, it should not be done so until after at
least seven (7) years from the approval of the New Constitution
by the Citizens Assemblies.
QUESTION No. 3
The vote of the Citizens Assemblies should already be considered
the plebiscite on the New Constitution.
If the Citizens Assemblies approve of the new Constitution, then
the new Constitution should be deemed ratified "

The Solicitor General claims, and there seems to be no showing otherwise, that the
results of the referendum were determined in the following manner:
"Thereafter, the results of the voting were collated and sent to
the Department of Local Governments. The transmission of the results
was made by telegram, telephone, the provincial government SSB

System in each province connecting all towns; the SSB communication

of the PACD connecting most provinces; the Department of Public
Information Network System; the Weather Bureau Communication
System connecting provincial capitals and the National Civil Defense
Network connecting all provincial capitals. The certicates of results
were then own to Manila to conrm the previous gures received by
the aforementioned means of transmission. The certicates of results
tallied with the previous gures taken with the exception of few cases
of clerical errors.
"The Department adopted a system of regionalizing the receiving
section of the Citizens Assemblies operation at the Department wherein
the identity of the barrio and the province was immediately given to a
sta in charge of each region. Every afternoon at 2:00 o'clock, the 11
regions submitted the gures they received from the eld to the central
committee to tabulate the returns. The last gures were tabulated at 12
midnight of January 16, 1973 and early morning of January 17, 1973
and were then communicated to the President by the Department of
Local Governments."

The development culminated in the issuance by the President of Proclamation 1102

on January 17, 1978. Said proclamation reads:
"PROCLAMATION NO. 1102 ANNOUNCING THE RATIFICATION BY THE
FILIPINO PEOPLE OF THE CONSTITUTION PROPOSED BY THE 1971
CONSTITUTIONAL CONVENTION.
WHEREAS, the Constitution proposed by the nineteen hundred
seventy-one Constitutional Convention is subject to ratication by the
Filipino people;
"WHEREAS, Citizens Assemblies were created in barrios in
municipalities and in districts/wards in chartered cities pursuant to
Presidential Decree No. 6, dated December 31, 1972, composed of all
persons who are residents of the barrio, district or ward for at least six
months, fteen years of age or over, citizens of the Philippines and who
are registered in the list of Citizen Assembly members kept by the
barrio, district or ward secretary;
WHEREAS, the said Citizens Assemblies were established
precisely to broaden the base of citizen participation in the democratic
process and to aord ample opportunity for the citizenry to express
their views on important national issues;
WHEREAS, responding to the clamor of the people and pursuant
to Presidential Decree No. 86-A, dated January 5, 1973, the following
questions were posed before Citizens' Assemblies or Barangays: Do
you approve of the New Constitution? Do you still want a plebiscite to
be called to ratify the new Constitution?
WHEREAS, fourteen million nine hundred seventy six thousand

ve hundred sixty one (14,976,561) members of all the Barangays

(Citizens Assemblies) voted for the adoption of the proposed
Constitution, as against seven hundred forty-three thousand eight
hundred sixty nine (743,869) who voted for its rejection; while on the
question as to whether or not the people would still like a plebiscite to
be called to ratify the new Constitution, fourteen million two hundred
ninety eight thousand eight hundred fourteen (14,298,814) answered
that there was no need for a plebiscite and that the vote of the
Barangays (Citizens Assemblies) should be considered as a vote in a
plebiscite;
WHEREAS, since the referendum results show that more than
ninety ve (95) percent of the members of the Barangays (Citizens
Assemblies) are in favor of the New Constitution, the Katipunan ng Mga
Barangay has strongly recommended that the new Constitution should
already be deemed ratified by the Filipino people;
"NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers in me vested by the Constitution, do
hereby certify and proclaim that the Constitution proposed by the
nineteen hundred and seventy-one (1971) Constitutional Convention
has been ratied by an overwhelmingly majority of all of the votes cast
by the members of all the Barangays (Citizens Assemblies) throughout
the Philippines, and has thereby come into effect.
IN WITNESS WHEREOF, I have hereunto set my hand and caused
the seal of the Republic of the Philippines to be affixed.
Done in the City of Manila, this 17th day of January, in the year of
Our Lord, nineteen hundred and seventy-three."

The rst attempt to question the steps just enumerated taken by the President was
in the so called Plebiscite Cases, ten in number, which were led by dierent
petitioners during the rst half of December 1972. 1 Their common target then was
Presidential Decree No. 73, but before the said cases could be decided, the series of
moves tending in eect to make them moot and academic insofar as they referred
exclusively to the said Presidential Decree began to take shape upon the issuance of
Presidential Decree No. 86-A, quoted above. And when Presidential Decree No. 86-B,
also above quoted, was issued and the six additional questions which were rst
publicized on January 11, 1973 were known, together with the "comments",
petitioners sensed that a new and unorthodox procedure was being adopted to
secure approval by the people of the new Constitution, hence Counsel Taada, not
being satised with the fate of his urgent motion for early decision of the above ten
cases dated January 12, 1973, led on January 15, 1973, his supplemental motion
seeking the prohibition against and injunction of the proceedings going on. Principal
objective was to prevent that the President be furnished the report of the results of
the referendum and thereby disable him from carrying out what petitioners were
apprehensively foreseeing would be done the issuance of some kind of
proclamation, order or decree, declaring that the new Constitution had been
ratied. Reacting swiftly, the Court resolved on the same day, January 15, which

was Monday, to consider the supplemental motion as a supplemental petition and

to require the respondents to answer the same the next Wednesday, January 17th,
before the hour of the hearing of the petition which was set for 9:30 o'clock in the
morning of that day. The details of what happened that morning form part of the
recital of facts in the decision rendered by this Court in the ten cases on January 22,
1973 and need not be repeated here. Suce it to state now that before the hearing
could be closed and while Counsel Taada was still insisting on his payer for
preliminary injunction or restraining order, the Secretary of Justice arrived and
personally handed to the Chief Justice a copy of Proclamation 1102 which had been
issued at about 11:00 o'clock that same morning. In other words, the valiant and
persistent eorts of petitioners and their counsels were overtaken by adverse
developments, and in the mind of the majority of the members of the Court, the
cases had become academic. For my part, I took the view that even on the basis of
the supplemental petition and the answer thereto led by respondents, the Court
could already decide on the fundamental issue of the validity of Proclamation 1102,
as Justices Zaldivar, Antonio and Esguerra also believed, inasmuch as Counsel
Taada's pleading and argument had anticipated its issuance, but the majority felt it
was not ready to resolve the matter, for lack, according to them, of full ventilation,
and so, the decision reserved to petitioners the ling of the "appropriate" cases,
evidently, the present ones.

II.
At the threshold, I nd myself confronted by a matter which, although believed to
be inconsequential by my learned brethren, I strongly feel needs special attention. I
refer to the point raised by Counsel Arturo M. Tolentino for respondents Gil J. Puyat
and Jose Roy, who have been sued as President and President Pro Tempore of the
Senate, to the eect that the change in the composition of the Supreme Court
provided for in the 1973 Constitution, from the 11-man tribunal under the 1935
Constitution to a 15-man Court, makes of these cases which were led after
January 17, 1973, the date when Proclamation 1102 declared the new Constitution
as ratied, political in nature and beyond our jurisdiction. The main consideration
submitted in this connection is that inasmuch as the number of votes needed for a
decision of this Court has been increased from six to eight in ordinary cases and
from eight to ten for the declaration of unconstitutionality of a treaty, executive
agreement 2 or law, the Court would have to resolve rst as a prejudicial question
whether the Court is acting in these cases as the 15-man or the 11-man Court, in
which event, it would be faced with the dilemma that if it acts either as the former
or as the latter, it would be prejudging the very matter in issue one way or the
other, and, in eect, it would be choosing between two constitutions, which is a
political determination not within the Court's competence.
While I agree that the problem is at rst blush rather involved, I do not share the
view that the premises laid down by counsel necessarily preclude this Court from
taking a denite stand on whether the Court is acting in these cases as the 15-man
or the 11-man Court. I feel very strongly that the issue should not be ignored or

dodged, if only to make the world know that the Supreme Court of the Philippines is
never incognizant of the capacity in which it is acting, much less lacking in courage
or wisdom to resolve an issue that relates directly to its own composition. What a
disgrace it would be to admit that this Supreme Court does not know, to use a
common apt expression, whether it is sh or fowl. Withal, scholars and researchers
who might go over our records in the future will inevitably examine minutely how
each of us voted and upon what considerations we have individually acted, and,
indeed, doubts may arise as to whether or not, despite the general result we might
announce, there had been the requisite number of votes for a valid collegiate
action.
For instance, it may be argued that the present cases do not involve an issue of
unconstitutionality, hence, if we are acting as the 11-man Court, only six votes
would suce to declare Proclamation 1102 ineective, and if upon analysis of our
respective opinions it should be inferable therefrom that six of us have considered
the matter before the Court as justiciable and at the same time have found the
procedure of ratication adopted in Presidential Decrees 86A and 86-B and related
orders of the President as not being in conformity with Article XV of the old
Constitution, a cloud would exist as to the ecacy of the dispositive portion of Our
decision dismissing these cases, even if we have it understood that by the vote of
six justices in favor of such dismissal, We intended to mean that the
implementation or enforcement of the new Constitution now being done could
continue
Be that as it may, I am against leaving such an important point open to speculation.
By nature I am averse to ambiguity and equivocation, and as a member of the
Supreme Court, the last thing I should knowingly countenance is uncertainty as to
the juridical signicance of any decision of the Court which is precisely being looked
upon as the haven in which doubts are supposed to be authoritatively dispelled.
Besides, from the very nature of things, one thing is indubitably beyond dispute
we cannot act in both capacities of a 15-man and an 11-man Court at the same
time, in like manner that it is inconceivable that the 1935 and 1973 Constitution
can be considered by Us as both in force. Our inescapable duty is to make a choice
between them, according to what law and other considerations inherent to our
function dictate. I cannot bear the thought that someone may someday say that the
Supreme Court of the Philippines once decided a case without knowing the basis of
its authority to act or that it was ever wanting in judicial courage to dene the
same.
Accordingly, with full consciousness of my limitations but compelled by my sense of
duty and propriety to straighten out this grave issue touching on the capacity in
which the Court is acting in these cases, I hold that we have no alternative but to
adopt in the present situation the orthodox rule that when the validity of an act or
law is challenged as being repugnant to a constitutional mandate, the same is
allowed to have eect until the Supreme Court rules that it is unconstitutional.
Stated dierently, We have to proceed on the assumption that the new
Constitution is in force and that We are acting in these present cases as the 15-man
Supreme Court provided for therein. Contrary to counsel's contention, there is here

no prejudgment for or against any of the two constitutions. The truth of the matter
is simply that in the normal and logical conduct of governmental activities, it is
neither practical nor wise to defer the course of any action until after the courts
have ascertained their legality, not only because if that were to be the rule, the
functioning of government would correspondingly be undesirably hesitative and
cumbersome, but more importantly, because the courts must at the rst instance
accord due respect to the acts of the other departments, as otherwise, the smooth
running of the government would have to depend entirely on the unanimity of
opinions among all its departments, which is hardly possible, unless it is assumed
that only the judges have the exclusive prerogative of making and enforcing the
law, aside from being its sole interpreter, which is contrary to all norms of juridical
and political thinking. To my knowledge, there is yet no country in the world that
has recognized judicial supremacy as its basic governmental principle, no matter
how desirable we might believe the idea to be.
Indeed, it is not hard to visualize the diculty if not absurdity of Our acting on the
assumption that this Court is still functioning under the 1935 Constitution. It is
undeniable that the whole government, including the provincial, municipal and
barrio units and not excluding the lower courts up to the Court of Appeals, is
operating under the 1973 Constitution. Almost daily, presidential orders and
decrees of the most legislative character aecting practically every aspect of
governmental and private activity as well as the relations between the government
and the citizenry are pouring out from Malacaang under the authority of said
Constitution. On the other hand, taxes are being exacted and penalties in
connection therewith are being imposed under said orders and decrees. Obligations
have been contracted and business and industrial plans have been and are being
projected pursuant to them. Displacements of public ocials and employees in big
numbers are going on in obedience to them. For the ten justices of the Supreme
Court to constitute an island of resistance in the midst of these developments,
which even unreasoning obstinacy cannot ignore, much less impede, is
unimaginable, let alone the absurd and complicated consequences such a position
entails in the internal workings within the judiciary amount its dierent
components, what with the lower courts considering such orders and decrees as
forming part of the law of the land in making their orders and decisions, whereas
the Supreme Court is holding, as it were, their eectivity at bay if it is not being
indifferent to or ignoring them.
It is suggested that the President, being a man of law, is committed to abide by the
decision of the Supreme Court, and if the Court feels that it cannot in the meantime
consider the enforcement of the new Constitution, he can wait for its decision.
Accepting the truth of this assertion, it does not necessarily follow that by this
attitude of the President, he considers the Supreme Court as still operating under
the Old Constitution. Quite on the contrary, it is a fact that he has given instructions
for the payment of the justices in accordance with the rate xed in the New
Constitution. Not only that, his ocial alter ego, the Secretary of Justice, has been
shoving to this Court, since January 18, 1973, all matters related to the
administrative supervision of the lower courts which by the new charter has been
transferred from the Department of Justice to the Supreme Court, and as far as I

know, the President has not countermanded the Secretary's steps in that direction.
That, on the other hand, the President has not augmented the justices of the Court
to complete the prescribed number of fteen is, in my appraisal, of no consequence,
considering that with the presence of ten justices who are in the Court now, there is
a working quorum, and the addition of new justices cannot in anyway aect the
voting on the constitutional questions now before Us because, while there are
sucient justices to declare by their unanimous vote the illegality of Proclamation
1102, the votes of the justices to be added would only be committed to upholding
the same, since they cannot by any standard be expected to vote against the
legality of the very Constitution under which they would be appointed.
Moreover, what makes the premise of presumptive validity preferable and, even
imperative, is that We are dealing here with a whole constitution that radically
modies or alters not only the form of our government from presidential to
parliamentary but also other constitutionally based institutions vitally aecting all
levels of society. It is, to my mind, unrealistic to insist on that, fundamentally, the
1973 Constitution is the same 1935 Constitution. with a few improvements. A
cursory perusal of the former should convince anyone that it is in essence a new
one. While it does retain republicanism as the basic governmental tenet, the
institutional changes introduced thereby are rather radical and its social orientation
is decidedly more socialistic, just as its nationalistic features are somewhat dierent
in certain respects. One cannot but note that the change embraces practically every
part of the old charter, from its preamble down to its amending and eectivity
clauses, involving as they do the statement of general principles, the citizenship and
surage qualications, the articles on the form of government, the judiciary
provisions, the spelling out of the duties and responsibilities not only of citizens but
also of ocers of the government and the provisions on the national economy as
well as the patrimony of the nation, not to mention the distinctive features of the
general provisions. What is more, the transitory provisions notably depart from
traditional and orthodox views in that, in general, the powers of government during
the interim period are more or less concentrated in the President, to the extent that
the continuation or discontinuance of what is now practically a one-man-rule, is
even left to his discretion. Notably, the express ratication of all proclamations,
orders, decrees and acts previously issued or done by the President, obviously meant
to encompass those issued during martial law, is a commitment to the concept of
martial law powers being implemented by president Marcos, in deance of
traditional views and prevailing jurisprudence, to the eect that the Executive's
power of legislation during a regime of martial law is all inclusive and is not limited
to the matters demanded by military necessity. In other words, the new
constitution unlike any other constitution countenances the institution by the
executive of reforms which normally is the exclusive attribute of the legislature.

Withal, the best proofs that by its expressed and implied intent, the Constitution of
1973 is a new one, are that (1) Section 16 of its Article XVII which provides that this
constitution shall "supersede the Constitution of nineteen hundred and thirty-ve
and all amendments thereto" and (2) its transitory provisions expressly continue

the eectivity of existing laws, oces and courts as well as the tenure of all
incumbent ocials, not adversely aected by it, which would have been
unnecessary if the old constitution were being merely amended.
The new Constitution, in its Section 10, Article XVII, provides that "(T)he incumbent
members of the Judiciary (which include the Chief Justice and Associate Justices of
the Supreme Court) may continue in oce (under the new constitution) until they
reach the age of seventy years, etc." By virtue of the presumptive validity of the
new charter, all of Us form part of the 15-man-Court provided for therein and,
correspondingly, We have in legal contemplation, ceased in the meanwhile to be
members of the 11-man-Court in the 1935 Constitution. Should the Court nally
decide that the new Constitution is invalid, then We would automatically revert to
our positions in the 11-man Court, otherwise, We would just continue to be in our
membership in the 15 man-Court, unless We feel We cannot in conscience accept
the legality of its existence. On the other hand, if it is assumed that We are still the
11-man-Court and it happens that Our collective decision is in favor of the new
constitution, it would be problematical for any dissenting justice to consider himself
as included automatically in the 15-man-Court, since that would be tantamount to
accepting a position he does not honestly believe exists.
III
In brief, the main contention of the petitioners is that Proclamation 1102 is invalid
because the ratication of the 1973 Constitution it purports to declare as having
taken place as a result of the referendum above-referred to is ineective. Since it
cannot be said on the basis of the said referendum that said Constitution has been
"approved by a majority of the votes cast at an election" in the manner prescribed
by Article XV of the Constitution of 1935. More specically, they maintain that the
word "election" in the said Article has already acquired a denite accepted meaning
out of the consistent holding in the past of ratication plebiscites, and accordingly,
no other form of ratication can be considered contemplated by the framers of the
Old Constitution than that which had been followed in 1935, 1937, 1939, 1940,
1946 and 1967, the last three or four of which were held under the supervision of
the Commission on Elections. Furthermore, they emphatically deny the veracity of
the proclaimed results of the referendum because, according to them the
referendum was a farce and its results were manufactured or prefabricated,
considering that Mr. Francisco Cruz, who is supposed to have submitted the nal
report to the President, which served as basis for Proclamation 1102, had no ocial
authority to render the same, and it is inconceivable and humanly impossible for
anyone to have been able to gather, tabulate and canvass the 15 million votes
allegedly reported within the short period of time employed. Of course, they also
contend that in any event, there was no proper submission because martial law per
se creates constructive duress which deprives the voters of the complete freedom
needed for the exercise of their right of choice and actually, there was neither time
nor opportunity for real debate before they voted.
On the other hand, the position of the Solicitor General as counsel for the
respondents is that the matter raised in the petitions is a political one which the

courts are not supposed to inquire into, and, anyway, there has been a substantial
compliance with Article XV of the 1935 Constitution, inasmuch as, disregarding
unessential matters of form, the undeniable fact is that the voting in the
referendum resulted in the approval by the people of the New Constitution.
I need not dwell at length on these variant positions of the parties. In my separate
opinion in the Plebiscite Cases, I already made the observation that in view of the
lack of solemnity and regularity in the voting as well as in the manner of reporting
and canvassing conducted in connection with the referendum, I cannot say that
Article XV of the Old Constitution has been complied with, albeit I held that
nonetheless, the Constitution of 1973 is already in force. In order, however, to
make myself clearer on some relevant points, I would like to add a few
considerations to what I have already said in the former cases.
In my opinion in those cases, the most important point I took into account was that
in the face of the Presidential certication through Proclamation 1102 itself that the
New Constitution has been approved by a majority of the people and having in mind
facts of general knowledge which I have taken judicial notice of, I am in no position
to deny that the result of the referendum was as the President had stated. I can
believe that the gures referred to in the proclamation may not be accurate, but I
cannot say in conscience that all of them are manufactured or prefabricated, simply
because I saw with my own eyes that people did actually gather and listen to
discussions, if brief and inadequate for those who are not abreast of current events
and general occurrences, and that they did vote. I believe I can safely say that what
I have seen have also been seen by many others throughout the country and unless
it can be assumed, which honestly, I do not believe to be possible, that in fact there
were actually no meetings held and no voting done in more places than those
wherein there were such meetings and votings, I am not prepared to discredit
entirely the declaration that there was voting and that the majority of the votes
were in favor of the New Constitution. If in fact there were substantially less than
14 million votes of approval, the real gure, in my estimate, could still be signicant
enough and legally sufficient to serve as basis for a valid ratification.
It is contended, however, that the understanding was that the referendum among
the Citizens Assemblies was to be in the nature merely of a loose consultation and
not an outright submission for purposes of ratication. I can see that at the outset,
when the rst set of questions was released, such may have been the idea. It must
not be lost sight of, however, that if the newspaper reports are to be believed, and I
say this only because petitioners would consider the newspapers as the ocial
gazettes of the administration, the last set of six questions were included precisely
because the reaction to the idea of mere consultation was that the people wanted
greater direct participation, thru the Citizens Assemblies, in decision-making
regarding matters of vital national interest. Thus, looking at things more
understandingly and realistically, the two questions emphasized by counsel,
namely, (1) Do you approve of the New Constitution? and (2) Do you want a
plebiscite to be called to ratify the new Constitution? should be considered no longer
as loose consultations but as direct inquiries about the desire of the voters regarding
the matters mentioned. Accordingly, I take it that if the majority had expressed

disapproval of the new Constitution, the logical consequence would have been the
complete abandonment of the idea of holding any plebiscite at all. On the other
hand, it is very plain to see that since the majority has already approved the new
Constitution, a plebiscite would be superuous. Clear as these rationalizations may
be, it must have been thought that if the holding of a plebiscite was to be
abandoned, there should be a direct and expressed desire of the people to such
eect in order to forestall as much as possible any serious controversy regarding the
non-holding of the plebiscite required by the letter of Section 16 of Article XVII, the
eectivity clause, of the new Constitution. Oddly enough, the "comments"
accompanying the questions do strongly suggest this view. And as it turned out, the
majority found no necessity in holding a plebiscite.
In connection with the question, Do you approve of the New Constitution? capital is
being made of the point that as so framed, the thrust of the said question does not
seek an answer of fact but of opinion. It is argued that it would have been factual
were it worded categorically thus Do you approve the New Constitution? The
contention would have been weighty were it not unrealistic. I remember distinctly
that the observation regarding the construction of the subject question was not
originally made by any of the talented counsels for petitioners. It came from Mr.
Justice Fred Ruiz Castro whose mastery of the English language can rightly be the
cause of envy of even professors of English. None of the other members of the
Court, as far as I can recall, ever noticed how the said question is phrased, or if
anyone of Us did, I am not aware that he gave it more than passing attention. What
I mean is that if neither any of the distinguished and learned counsels nor any
member of the Court understood the said question otherwise than calling for a
factual answer instead of a mere opinion, how could anyone expect the millions of
unlettered members of the Citizens Assemblies to have noticed the point brought
out by Justice Castro? Truth to tell, I myself did not realize the dierence until
Justice Castro gave it emphasis. Besides, reading the question in the light of the
accompanying "comment" corresponding to it in particular, I am certain that any
one who answered the same understood it in no other sense than a direct inquiry as
to whether or not, as a matter of fact, he approves the New Constitution, and
naturally, his armative answer must be taken as a categorical vote of approval
thereof, considering, particularly, that according to the reported result of the
referendum said answer was even coupled with the request that the President defer
the convening of the Interim National Assembly.

It is also contended that because of this reference in the answer to that question to
the deferment of the convening of the interim assembly, the said answer is at best
a conditional approval not proper nor acceptable for purposes of a ratication
plebiscite. The contention has no basis. In the interest of accuracy, the additional
answer proposed in the pertinent "comment" reads as follows: "But we do not want
the Ad Interim Assembly to be convoked etc." On the assumption that the actual
answer, as reported, was of similar tenor, it is not fair to ascribe to it the imposition
of a condition. At the most, the intention is no more than a suggestion or a wish.

As regards said "comments", it must be considered that after martial law was
declared, the circumstances surrounding the making of the Constitution acquired a
dierent and more meaningful aspect, namely, the formation of a new society.
From the point of view of the President and on the basis of intelligence reports
available to him, the only way to meet the situation created by the subversive
elements was to introduce immediately eective reforms calculated to redeem the
people from the depth of retrogression and stagnation caused by rampant graft and
corruption in high places, inuence peddling, oligarchic political practices, private
armies, anarchy, deteriorating conditions of peace and order, the social inequalities
widening the gap between the rich and the poor, and many other deplorable long
standing maladies crying for early relief and solution. Denitely, as in the case of
the rebellious movement that threatened the Quirino Administration, the remedy
was far from using bullets alone. If a constitution was to be approved as an eective
instrument towards the eradication of such grave problems, it had to be approved
without loss of time and sans the cumbersome processes that, from the realistic
viewpoint, have in the past obstructed rather than hastened the progress of the
people. Stated otherwise, in the context of actualities, the evident objective in
having a new constitution is to establish new directions in the pursuit of the
national aspirations and the carrying out of national policies. Only by bearing these
considerations in mind can the "comments" already referred to be properly
appreciated. To others said "comments" may appear as evidence of corruption of the
will of those who attended the assemblies, but actually, they may also be viewed in
the same light as the sample ballots commonly resorted to in the elections of
ocials, which no one can contend are per se means of coercion. Let us not forget
that the times are abnormal, and prolonged dialogue and exchange of ideas are not
generally possible, nor practical, considering the need for faster decisions and more
resolute action. After all voting on a whole new constitution is dierent from voting
on one, two or three specic proposed amendments, the former calls for nothing
more than a collective view of all the provisions of the whole charter, for
necessarily, one has to take the good together with the bad in it. It is rare for
anyone to reject a constitution only because of a few specic objectionable features,
no matter how substantial, considering the ever present possibility that after all it
may be cured by subsequent amendment. Accordingly, there was need to indicate to
the people the paths open to them in their quest for the betterment of their
conditions, and as long as it is not shown that those who did not agree to the
suggestions in the "comments" were actually compelled to vote against their will, I
am not convinced that the existence of said "comments" should make any
appreciable difference in the court's appraisal of the result of the referendum.
I must confess that the fact that the referendum was held during martial law
detracts somehow from the value that the referendum would otherwise have had.
As I intimated, however, in my former opinion, it is not fair to condemn and
disregard the result of the referendum barely because of martial law per se. For one
thing, many of the objectionable features of martial law have not actually
materialized, if only because the implementation of martial law since its inception
has been generally characterized by restraint and consideration, thanks to the
expressed wishes of the President that the same be made "Philippine style", which
means without the rigor that has attended it in other lands and other times.

Moreover, although the restrictions on the freedom of speech, the press and
movement during martial law do have their corresponding adverse eects on the
area of information which should be open to a voter, in its real sense what "chills"
his freedom of choice and mars his exercise of discretion is the suspension of the
privilege of the writ of habeas corpus. The reason is simply that a man may freely
and correctly vote even if the needed information he possesses as to the candidates
or issues being voted upon is more or less incomplete, but when he is subject to
arrest and detention without investigation and without being informed of the cause
thereof, that is something else which may actually cause him to cast a captive vote.
Thus it is the suspension of the writ of habeas corpus accompanying martial law
that can cause possible restraint on the freedom of choice in an election held during
martial law. It is a fact, however, borne by history and actual experience, that in the
Philippines, the suspension of the privilege of the writ of habeas corpus has never
produced any chilling eect upon the voters, since it is known by all that only those
who run afoul of the law, saving inconsequential instances, have any cause for
apprehension in regard to the conduct by them of the normal activities of life. And
so it is recorded that in the elections of 1951 and 1971, held while the privilege of
writ of habeas corpus was under suspension, the Filipino voters gave the then
opposition parties overwhelming if not sweeping victories, in deance of the
respective administrations that ordered the suspensions.
At this juncture, I think it is t to make it clear that I am not trying to show that the
result of the referendum may be considered as sucient basis for declaring that the
New Constitution has been ratied in accordance with the amending clause of the
1935 Constitution. I reiterate that in point of law, I nd neither strict nor
substantial compliance. The foregoing discussion is only to counter, if I may, certain
impressions regarding the general conditions obtaining during and in relation to the
referendum which could have in one way or another aected the exercise of the
freedom of choice and the use of discretion by the members of the Citizens
Assemblies, to the end that as far as the same conditions may be relevant in my
subsequent discussions of the acceptance by the people of the New Constitution
they may also be considered.
IV
It is my sincere conviction that the Constitution of 1973 has been accepted or
adopted by the people. And on this premise, my considered opinion is that the Court
may no longer decide these cases on the basis of purely legal considerations. Factors
which are non-legal but nevertheless ponderous and compelling cannot be ignored,
for their relevancy is inherent in the issue itself to be resolved.
In my opinion in the Plebiscite Cases, I joined my colleagues in holding that the
question of whether or not there was proper submission under Presidential Decree
No. 73 is justiciable, and I still hold that the propriety of submission under any other
law or in any other form is constitutionally a fit subject for inquiry by the courts. The
ruling in the decided cases relied upon by petitioners are to this eect. In view,
however, of the factual background of the cases at bar which include ratication
itself, it is necessary for me to point out that when it comes to ratication, I am

persuaded that there should be a boundary beyond which the competence of the
courts no longer has any reason for being, because the other side is exclusively
political territory reserved for their own dominion by the people.
The main basis of my opinion in the previous cases was acceptance by the people.
Others may feel there is not enough indication of such acceptance in the record and
in the circumstances the Court can take judicial notice of. For my part, I consider it
unnecessary to be strictly judicial in inquiring into such fact. Being personally aware,
as I have already stated, that the Citizens Assemblies did meet and vote, if
irregularly and crudely, it is not for me to resort, for the purposes of these cases, to
judicial tape and measure, to nd out with absolute precision the veracity of the
total number of votes actually cast. After all, the claims that upon a comparison of
conicting reports, cases of excess votes may be found, even if extrapolated will not,
as far as I can gure out, suce to overcome the outcome ocially announced.
Rather than try to form a conclusion out of the raw evidence before Us which the
parties did not care to really complete, I feel safer by referring to the results
announced in the proclamation itself. Giving substantial allowances for possible
error and downright manipulation, it must not be overlooked that, after all, their
having been accepted and adopted by the President, based on ocial reports
submitted to him in due course of the performance of duty of appropriate
subordinate ocials, has elevated them to the category of an act of a coordinate
department of the government which under the principle of separation of powers is
clothed with presumptive correctness or at least entitled to a high degree of
acceptability, until overcome by better evidence, which in these cases does not
exist. In any event, considering that due to the unorthodoxy of the procedure
adopted and the diculty of an accurate checking of all the gures, I am unable to
conceive of any manageable means of acquiring information upon which to
predicate a denial, I have no alternative but to rely on what has been ocially
declared. At this point, I would venture to express the feeling that if it were not
generally conceded that there has been sucient showing of the acceptance in
question, by this time, there would have been already demonstrative and significant
indications of a rather widespread, if not organized resistance in one form or
another. Much as they are to be given due recognition as magnicent
manifestations of loyalty and devotion to principles, I cannot accord to the ling of
these cases as indicative enough of the general attitude of the people.

It is true that in the opinion I had the privilege of penning for the Court in Tolentino
vs. Comelec, 41 SCRA 702, I made strong and unequivocal pronouncements to the
eect that any amendment to the Constitution of 1935, to be valid, must appear to
have been made in strict conformity with the requirements of Article XV thereof.
What is more, that decision asserted judicial competence to inquire into the matter
of compliance or non compliance as a justiciable matter. I still believe in the
correctness of those views and I would even add that I sincerely feel it reects the
spirit of the said constitutional provision. Without trying to strain any point,
however, I submit the following considerations in the context of the peculiar
circumstances of the cases now at bar, which are entirely dierent from those in the

backdrop of the Tolentino rulings I have referred to.

1.Consider that in the present case what is involved is not just an amendment or a
particular provision of an existing Constitution; here, it is, as I have discussed earlier
above, an entirely new Constitution that is being proposed. This important
circumstance makes a great deal of difference.
No less than counsel Tolentino for herein respondents Puyat and Roy, who was
himself the petitioner in the case I have just referred to is, now inviting Our
attention to the exact language of Article XV and suggesting that the said Article
may be strictly applied to proposed amendments but may hardly govern the
ratication of a new Constitution. It is particularly stressed that the Article
specically refers to nothing else but "amendments to this Constitution" which if
ratied "shall be valid as part of this Constitution." Indeed, how can a whole new
constitution be by any manner of reasoning an amendment to any other
constitution and how can it, if ratied, form part of such other constitution? In fact,
in the Tolentino case I already somehow hinted this point, when I made reference in
the resolution denying the motion for reconsideration to the fact that Article XV
must be followed "as long as any amendment is formulated and submitted under
the aegis of the present Charter." Said resolution even added. "(T)his is not to say
that the people may not, in the exercise of their inherent revolutionary powers,
amend the Constitution or promulgate an entirely new one otherwise."
It is not strange at all to think that the amending clause of a constitution should be
conned in its application only to proposed changes in any part of the same
constitution itself, for the very fact that a new constitution is being adopted implies
a general intent to put aside the whole of the old one, and what would be really
incongrous is the idea that in such an eventuality, the new Constitution would
subject its going into eect to any provision of the constitution it is to supersede, to
use the language precisely of Section 6, Article XVII, the eectivity clause, of the
New Constitution. My understanding is that generally, constitutions are self-born,
they very rarely, if at all, come into being, by virtue of any provision of another
constitution. 3 This must be the reason why every constitution has its own
eectivity clause, so that if, the Constitutional Convention had only anticipated the
idea of the referendum and provided for such a method to be used in the ratication
of the New Constitution, I would have had serious doubts as to whether Article XV
could have had priority of application.
2.When an entirely new constitution is proposed to supersede the existing one, we
cannot but take into consideration the forces and the circumstances dictating the
replacement. From the very nature of things, the proposal to ordain a new
constitution must be viewed as the most eloquent expression of a people's resolute
determination to bring about a massive change of the existing order, a meaningful
transformation of the old society and a responsive reformation of the contemporary
institutions and principles. Accordingly, should any question arise as to its eectivity
and there is some reasonable indication that the new charter has already received
in one way or another the sanction of the people, I would hold that the better rule is
for the courts to defer to the people's judgment, so long as they are convinced of the

fact of their approval, regardless of the form by which it is expressed, provided it be

reasonably feasible and reliable. Otherwise stated, in such instances, the courts
should not bother about inquiring into compliance with technical requisites, and as a
matter of policy should consider the matter non-justiciable.
3.There is still another circumstance which I consider to be of great relevancy. I
refer to the ostensible reaction of the component elements, both collective and
individual, of the Congress of the Philippines. Neither the Senate nor the House of
Representatives has been reported to have even made any appreciable eort or
attempt to convene as they were supposed to do under the Constitution of 1935 on
January 22, 1973 for the regular session. It must be assumed that being composed
of experienced, knowledgeable and courageous members, it would not have been
dicult for said parliamentary bodies to have conceived some ingenious way of
giving evidence of their determined adherence to the Constitution under which they
were elected. Frankly, much as I admire the eorts of the handful of senators who
had their picture taken in front of the padlocked portals of the Senate chamber, I do
not feel warranted to accord such act as enough token of resistance. As counsel
Tolentino has informed the court, there was noting to stop the senators and the
congressmen to meet in any other convenient place and somehow ocially
organize themselves in a way that can logically be considered as a session, even if
nothing were done than to merely call the roll and disperse. Counsel Tolentino even
pointed out that if there were not enough members to form a quorum, any smaller
group could have ordered the arrest of the absent members. And with particular
relevance to the present cases, it was not constitutionally indispensable for the
presiding ocers to issue any call to the members to convene, hence the present
prayers for mandamus have no legal and factual bases. And to top it all, quite to the
contrary, the records of the Commission on Elections show that at least 15 of 24
senators and over 95 out of less than 120 members of the House of
Representatives, have ocially and in writing exercised the option given to them to
join the Interim National Assembly under the New Constitution, thereby
manifesting their acceptance of the new charter.
Now, having these facts in mind, and it being obvious that of the three great
departments of the government under the 1935 Constitution, two, the Executive
and the Legislative, have already accepted the New Constitution and recognized its
enforceability and enforcement, I cannot see how this Supreme Court can by judicial
at hold back the political developments taking place and for the sake of being the
guardian of the Constitution and the defender of its integrity and supremacy make
its judicial power prevail against the decision of those who were duly chosen by the
people to be their authorized spokesmen and representatives. It is not alone the
physical futility of such a gesture that concerns me. More than that, there is the
stark reality that the Senators and the Congressmen, no less than the President,
have taken the same oath of loyalty to the Constitution that we, the Justices, have
taken and they are, therefore, equally bound with Us to preserve and protect the
Constitution. If as the elected representatives of the people, they have already
opted to accept the New Constitution as the more eective instrument for the
fulllment of the national destiny, I really wonder if there is even any idealistic
worth in Our desperately clinging by Ourselves alone to Our sworn duty vis-a-vis the

1935 Constitution. Conscious of the declared objectives of the new dispensation and
cognizant of the decisive steps being taken, with the least loss of time, towards their
accomplishment, I cannot but feel apprehensive that instead of serving the best
interests of our people, which to me is in reality the real meaning of our oath of
oce, the Court might be standing in the way of the very thing our beloved country
needs to retrieve its past glory and greatness. In other words, it is my conviction
that what these cases demand most of all is not a decision demonstrative of our
legal erudition and Solomonic wisdom, but an all rounded judgment resulting from
the consideration of all relevant circumstances, principally the political, or, in brief, a
decision more political than legal, which a court can render only by deferring to the
apparent judgment of the people and the announcement thereof by the political
departments of the government and declaring the matter non-justiciable.
4.Viewed from the strictly legal angle and in the light of judicial methods of
ascertainment, I cannot agree with the Solicitor General that in the legal sense,
there has been at least substantial compliance with Article XV of the 1935
Constitution, but what I can see is that in a political sense, the answers to the
referendum questions were not given by the people as legal conclusions. I take it
that when they answered that by their signied approval of the New Constitution,
they do not consider it necessary to hold a plebiscite, they could not have had in
mind any intent to do what was constitutionally improper. Basically accustomed to
proceed along constitutional channels, they must have acted in the honest
conviction that what was being done was in conformity with prevailing
constitutional standards. We are not to assume that the sovereign people were
indulging in a futile exercise of their supreme political right to choose the
fundamental charter by which their lives, their liberties and their fortunes shall be
safeguarded. In other words, we must perforce infer that they meant their decision
to count, and it behooves this Court to render judgment herein in that context. It is
my considered opinion that viewed understandingly and realistically, there is more
than sucient ground to hold that, judged by such intent and, particularly, from the
political standpoint, the ratication of the 1973 Constitution declared in
Proclamation 1102 complies substantially with Article XV of the 1935 Charter,
specially when it is considered that the most important element of the ratication
therein contemplated is not in the word "election", which conceivably can be in
many feasible and manageable forms but in the word "approved" which may be said
to constitute the substantiality of the whole article, so long as such approval is
reasonably ascertained. In the last analysis, therefore, it can be rightly said, even if
only in a broad sense, that the ratication here in question was constitutionally
justified and justifiable.

5.Finally, if any doubt should still linger as to the legitimacy of the New Constitution
on legal grounds, the same should be dispelled by viewing the situation in the
manner suggested by Counsel Tolentino and by the writer of this opinion in his
separate opinion, oft-referred to above, in the Plebiscite Cases that is, as an extra
constitutional exercise by the people, under the leadership of President Marcos, of
their inalienable right to change their fundamental charter by any means they may

deem appropriate, the moment they are convinced that the existing one is no
longer responsive to their fundamental, political and social needs nor conducive to
the timely attainment of their national destiny. This is not only the teaching of the
American Declaration of Independence but is indeed, a truth that is self-evident.
More, it should be regarded as implied in every constitution that regardless of the
language of its amending clause, once the people have given their sanction to a new
charter, the latter may be deemed as constitutionally permissible even from the
point of view of the preceding constitution. Those who may feel restrained to
consider this view out of respect to the import of Tolentino vs. Comelec, supra.,
would be well advised to bear in mind that that case was decided in the context of
submission, not of accomplished ratification.
V
The language of the disputed amending clause of the 1935 Constitution should not
be deemed as the be all and end all of the nation. More important than even the
Constitution itself, with all its excellent features, are the people living under it
their happiness, their posterity and their national destiny. There is nothing that
cannot be sacriced in the pursuit of these objectives, which constitute the totality
of the reasons for national existence. The sacred liberties and freedoms enshrined in
it and the commitment and consecration thereof to the forms of democracy we
have hitherto observed are mere integral parts of this totality; they are less
important by themselves.
What seems to me to be bothering many of our countrymen now is that by denying
the present petitions, the Court would be deemed as sanctioning, not only the
deviations from traditional democratic concepts and principles but also the qualied
curtailment of individual liberties now being practiced, and this would amount, it is
feared, to a repudiation of our oath to support and defend the Constitution of 1935.
This is certainly something one must gravely ponder upon. When I consider,
however, that the President, the Vice President, the members of both Houses of
Congress, not to speak of all executive departments and bureaus under them, as
well as all the lower courts, including the Court of Appeals, have already accepted
the New Constitution as an instrument of a meaningful nationwide-all-level change
in our government and society purported to make more realistic and feasible, rather
than idealistic and cumbersomely deliberative, the attainment of our national
aspirations, I am led to wonder, whether or not we, as members of the Supreme
Court are being true to our duty to our people by refusing to follow suit and to
accept the realities of the moment, despite our being convinced of the sincerity and
laudableness of their objectives, only because we feel that by the people's own act
of ratifying the Constitution of 1935, they have so encased themselves within its
provisions and may, therefore, no longer take measures to redeem themselves from
the situation brought about by the deciencies of the old order, unless they act in
strict conformity therewith. I cannot believe that any people can be so stied and
enchained. In any event, I consider it a God-given attribute of the people to
disengage themselves, if necessary, from any covenant that would obstruct their
taking what subsequently appears to them to be the better road to the promotion
and protection of their welfare. And once they have made their decision in that

respect, whether sophisticatedly or crudely, whether in legal form or otherwise,

certainly, there can be no court or power on earth that can reverse them.
I would not be human if I should be insensitive to the passionate and eloquent
appeals of Counsels Taada and Salonga that these cases be decided on the basis of
conscience. That is exactly what I am doing. But if counsel mean that only by
granting their petitions can this Court be worthily the bulwark of the people's faith
in the government, I cannot agree, albeit my admiration and respect are all theirs
for their zeal and tenacity, their industry and wisdom, their patriotism and devotion
to principle. Verily, they have brought out everything in the Filipino that these cases
demand.
In times of national emergencies and crises, not arising from foreign invasion, we
need not fear playing opposite roles, as long as we are all animated by sincere love
of country and aim exclusively at the attainment of the national destiny. Our heroes
of the past, Rizal, Bonifacio, Aguinaldo, Antonio Luna, Mabini and so also with our
patriots of the recent generations, Quezon, Osmea, Roxas, Laurel and Recto, to
mention only some of them, had their dierences of views and they did not
hesitate to take diametrically opposing sides that even reached tragic
proportions, but all of them are admired and venerated.
It is my faith that to act with absolute loyalty to our country and people is more
important than loyalty to any particular precept or provision of the Constitution or
to the Constitution itself. My oath to abide by the Constitution binds me to
whatever course of action I feel sincerely is demanded by the welfare and best
interests of the people.
In this momentous juncture of our history, what is imperative is national unity. May
God grant that the controversies the events leading to these cases have entailed
will heal after the decision herein is promulgated, so that all of us Filipinos may
forever join hands in the pursuit of our national destiny.
IN VIEW OF ALL THE FOREGOING, I vote to dismiss all these petitions for
mandamus and prohibition without costs.
MAKASIAR, J .:
Assuming, without conceding, that Article XV of the 1935 Constitution prescribes a
procedure for the ratication of constitutional amendments or of a new Constitution
and that such procedure was no complied with, the validity of Presidential
Proclamation No. 1102 is a political, not a justiciable, issue; for it is inseparably or
inextricably linked with and strikes at, because it is decisive of, the validity of the
ratication and adoption of, as well as acquiescence of the people in, the 1973
Constitution and the legitimacy of the government organized and operating
thereunder. And being political, it is beyond the ambit of judicial inquiry, tested by
the denition of a political question enunciated in Taada, et al. vs. Cuenco, et al.
(103 Phil. 1051), aside from the fact that this view will not do violence to rights
vested under the new Constitution, to international commitments forged pursuant
thereto and to decisions rendered by the judicial as well as quasi-judicial tribunals

organized and functioning or whose jurisdiction has been altered by the 1973
Constitution and by the government established thereunder, and will dissipate any
confusion in the minds of the citizenry, who have been obeying the mandates of the
new Constitution, as well as exercising the rights and performing the obligations
dened by the new Constitution, and decrees and orders issued in implementation
of the same and cooperating with the administration in the renovation of our social,
economic and political system as re-structured by the 1973 Constitution and by the
implementing decrees and orders (see Miller vs. Johnson, 18 SW 522, 522-526,
1892).
In 1957, Mr. Chief Justice Roberto Concepcion, then Associate Justice, in behalf as
the court, dened a political question as one which, under the Constitution, is "to be
decided by the people in their sovereign capacity, or in regard to which full
discretionary authority had been delegated to the Legislature or Executive branch of
the government." (Taada, et al. vs. Cuenco, et al., supra).
Article XV of the 1935 Constitution provides: "Such amendments shall be valid as
part of this Constitution when approved by a majority of the votes cast at an
election at which the amendments are submitted to the people for ratication."
Under Article XV of the 1935 Constitution, the power to propose constitutional
amendments is vested in Congress or in a constitutional convention; while the
power to ratify or reject such proposed amendments or new Constitution is reserved
by the sovereign people. The nullification of Proclamation No. 1102 would inevitably
render inoperative the 1973 Constitution, which is in fact the express prayer of the
petitioners in G.R. No. L-36164. Regardless of the modality of submission or
ratication or adoption even if it deviates from or violates the procedure
delineated there for by the old Constitution once the new Constitution is ratied,
adopted and/or acquiesced in by the people or ratied even by a body or agency not
duly authorized there for but is subsequently adopted or recognized by the people
and by the other ocial organs and functionaries of the government established
under such a new Constitution, this Court is precluded from inquiring into the
validity of such ratication, adoption or acquiescence and of the consequent
eectivity of the new Constitution. This is as it should be in a democracy, for the
people are the repository of all sovereign powers as well as the source of all
governmental authority (Pole vs. Gray, 104 SO 2nd 841 [1958]). This basic
democratic concept is expressly restated in Section 1 of Article II of the Declaration
of Principles of the 1935 and 1973 Constitutions, thus: "Sovereignty resides in the
people and all government authority emanates from them."
The legality of the submission is no longer relevant; because the ratication,
adoption and/or acquiescence by the people cures any inrmity in its submission or
any other irregularities therein which are deemed mandatory before submission as
they are considered merely directory after such ratication or adoption or
acquiescence by the people. As Mr. Justice Brewer, then of the Kansas State
Supreme Court and later Associate Justice of the Federal Supreme Court, stated in
re Prohibitory Amendment Cases (24 Kansas 700 & 710, Reprint 499, 506): "The
two important, vital elements of the Legislature, and a majority of the popular vote.
Beyond these, other provisions are mere machineries and forms. They may not be

disregarded, because by them certainty as to the essential is secured. But they are
not themselves the essentials. " (Cited in Lark en vs. Gronna, 285 N W 59, 61-64,
1939).

This was the ruling by the American Supreme Court in the 1939 case of Coleman
vs. Miller (307 U.S. 433, 83 L.ed. 1385), where Chief Justice Hughes, speaking for
the majority, stated that:
". . . Thus the political departments of the government dealt with the
eect of both previous rejection and attempted withdrawal and
determined that both were ineectual in the presence of an actual
ratication . . . This decision by the political departments of the
Government as to the validity of the adoption of the Fourteenth
amendment has been accepted.
"We think that in accordance with this historic precedent the
question of the ecacy of ratications by state legislatures, in the light
of previous rejection or attempted withdrawal, should be regarded as a
political question pertaining to the political departments, with the
ultimate authority in the Congress in the exercise of its control over the
promulgation of the adoption of the amendment."

This view was likewise emphasized by Mr. Justice Black in his concurring opinion, in
which Mr. Justices Roberts, Frankfurter, and Douglas join, thus:
"The Constitution grants Congress exclusive power to control
submission of constitutional amendments. Final determination by
Congress that ratication by three-fourths of the States has taken
place 'is conclusive upon the courts.' In the exercise of that power
Congress, of course, is governed by the Constitution. However,
whether submission, intervening procedure or Congressional
determination of ratication conforms to the commands of the
Constitution, calls for decisions by a 'political department' of questions
of a type which this Court has frequently designated 'political.' And
decision of a 'political question' by the 'political department' to which the
Constitution has committed it 'conclusively binds the judges, as well as
all other ocers, citizens and subjects of . . . government.'
Proclamation under authority of Congress that an amendment has
been ratied via carry with it a solemn assurance by the Congress that
ratication has taken place as the Constitution commands. Upon this
assurance a proclaimed amendment must be accepted as a part of the
Constitution, leaving to the judiciary its traditional authority of
interpretation. To the extent that the Court's opinion in the present case
even impliedly assumes a power to make judicial interpretation of the
exclusive constitutional authority of Congress over submission and
ratication of amendments, we are unable to agree . . ." (American
Constitutional Issues, by Pritchett, 1962 Ed., p. 44).

The doctrine in the aforesaid case of Coleman vs. Miller was adopted by Our
Supreme Court in toto in Mabanag vs. Lopez Vito (78 Phil. 1).
The ruling in the cases of Gonzales vs. Comelec, et al. (L-28224, Nov. 29, 1967, 21
SCRA 774) and Tolentino vs. Comelec, et al. (L-34150, Oct. 16, 1971, 41 SCRA 702)
on which petitioners place great reliance that the courts may review the
propriety of a submission of a proposed constitutional amendment before the
ratication or adoption of such proposed amendment by the sovereign people,
hardly applies to the cases at bar; because the issue involved in the aforesaid cases
refers to only the propriety of the submission of a proposed constitutional
amendment to the people for ratication, unlike the present petitions, which
challenge inevitably the validity of the 1973 Constitution after its ratication or
adoption thru acquiescence by the sovereign people. As heretofore stated, it is
specious and pure sophistry to advance the reasoning that the present petitions
pray only for the nullication of the 1973 Constitution and the government
operating thereunder.
It should be stressed that even in the Gonzales case, supra, We held that:
"Indeed, the power to amend the Constitution or to propose
amendments thereto is not included in the general grant of legislative
powers to Congress. It is part of the inherent powers of the people
as the repository of sovereignty in a republicans state, such as ours
to make, and hence, to amend their own Fundamental Law. Congress
may propose amendments to the Constitution merely because the
same explicitly grants such power. Hence, when exercising the same, it
is said that Senators ad Members of the House of Representatives act,
n o t as members of Congress, but as component elements of a
constituent assembly. When acting as such, the members of Congress
derive their authority from the Constitution, unlike the people, when
performing the same function, for their authority does n o t emanate
from the Constitution they are the source of all powers of
government including the Constitution itself." (21 SCRA 787)

WE did not categorically and entitle overturn the doctrine in Mabanag vs. Lopez Vito
(78 Phil. 1) that both the proposal to amend and the ratication of such a
constitutional amendment are political in nature forming as they do the essential
parts of one political scheme the amending process. WE merely stated therein
that the force of the ruling in the said case of Mabanag vs. Lopez Vito has been
weakened by subsequent cases. Thus, We pronounced therein.
"It is true that in Mabanag vs. Lopez Vito, this Court characterizing the
issue submitted thereto as a political one, declined to pass upon the
question whether or not a given number of votes cast in Congress in
favor of a proposed amendment to the Constitution which was being
submitted to the people for ratication satised the three fourths
vote requirement of the fundamental law. The force of this precedent
has been weakened, however, by Suanes us. Chief Accountant of the
Senate, Avelino vs. Cuenco, Taada vs. Cuenco, and Macias vs.
Commission on Elections. In the rst, we held that the Ocers and

employees of the Senate Electoral Tribunal are supervision and control,

not of that of the Senate President, as claimed by the latter; in the
second, this Court proceeded to determine the number of Senators
necessary for a quorum in the Senate; in the third we nullied the
election, by Senators belonging to the party having the largest number
of votes in said chamber, purporting to act on behalf of the party
having the second largest number of votes therein, of two (2) Senators
belonging to the rst party, as members, for the second party, of the
Senate Electoral Tribunal; and in the fourth, we declared
unconstitutional an act of Congress purporting to apportion the
representative districts of the House of Representatives, upon the
ground that the apportionment had not been made as may be possible
according to the number of inhabitants of each province. Thus we
rejected the theory advanced in these four (4) cases, that the issues
therein raised were political questions the determination of which is
beyond judicial review." (21 SCRA pp. 785-786);

for which reason We concluded

In short, the issue whether or not a resolution of Congress before
acting as a constituent assembly violates the Constitution is
essentially justiciable, not political, and, hence, subject to judicial review,
and to the extent that this view may be consistent with the stand taken
in Mabanag vs. Lopez Vito, the latter should be deemed modied
accordingly. " (p. 787, italics supplied.)

In the Tolentino case, supra, We reiterated the foregoing comments (41 SCRA 703714).
The inevitable consequence therefore is that the validity of the ratication or
adoption of or acquiescence by the people in the 1973 Constitution, remains a
political issue removed from the jurisdiction of this Court to review.
One more word about the Gonzales and Tolentino cases. Both primarily stressed on
the impropriety of the submission of a proposed constitutional amendment. Courts
do not deal with propriety or wisdom or absence of either of an ocial act or of a
law. Judicial power concerns only with the legality or illegality, constitutionality or
unconstitutionality of an act; it inquires into the existence of power or lack of it.
Judicial wisdom is not to be pitted against the wisdom of the political department of
the government.
The classic example of an illegal submission that did not impair the validity of the
ratication or adoption of a new Constitution is the case of the Federal Constitution
of the United States. It should be recalled that the thirteen (13) original states of
the American Union which succeeded in liberating themselves from England after
the revolution which began on April 19, 1775 with the skirmish at Lexington,
Massachusetts and ended with the surrender of General Cornwall is at Yorktown,
Virginia, on October 19, 1781 (Encyclopedia Brit., Vol. I, 1933 Ed., p. 776)
adopted their Articles of Confederation and Perpetual Union, that was written from
1776 to 1777 and ratied on March 1, 1781 (Encyclopedia Brit., Vol. II, 1966 Ed., p.

525). About six years thereafter, the Congress of the Confederation passed a
resolution on February 21, 1787 calling for a Federal Constitutional Convention "
for the sole and express purpose of revising the articles of confederation . . . "
(Appendix I, The Federalist, Modern Library ed., p. 577, italics supplied).
The Convention convened at Philadelphia on May 14, 1787. Article XIII of the
Articles of Confederation and Perpetual Union stated specifically:
"The articles of this confederation shall be inviolably observed by every
state, and the union shall be perpetual; nor shall any alteration at any
time hereafter be made in any of them; unless such alteration be
agreed to in a congress of the united states, and be afterwards
conrmed by the legislatures of every statute." (See the Federalist,
Appendix II, Modern Library Ed., 1937, p.584; italics supplied.)

But the foregoing requirements prescribed by the Articles of Confederation and

Perpetual Union for the alteration and for the ratification of the Federal Constitution
as drafted by the Philadelphia Convention were not followed. Fearful that the said
Federal Constitution would not be ratied by the state legislatures as prescribed,
the Philadelphia Convention adopted a resolution requesting the Congress of the
Confederation to pass a resolution providing that the Federal Constitution should be
submitted to elected state conventions and if ratied by the conventions in nine (9)
states, not necessarily in all thirteen (13) states, the said Constitution shall take
effect.

Thus, history Professor Edward Earle Mead of Princeton University recorded that
"It would have been a counsel of perfection to consign the new
Constitution to the tender mercies of the legislatures of each and all of
the 13 states. Experience clearly indicated that ratication then would
have had the some chance as the scriptural camel passing thru the eye
of a needle. It was therefore determined to recommend to Congress
that the new Constitution be submitted to conventions as in the several
states specially elected to pass upon it and that, furthermore, the new
government should go into eect if and when it should be ratied by
nine of the thirteen states . . ." (The Federalist, Modern Library Ed.,
1937, Introduction by Edward Earle Mead, pp. viii-ix; italics supplied).

Historian Samuel Eliot Morison similarly recounted:

"The Convention, anticipating that the inuence of many state
politicians would be Antifederalist, provided for ratication of the
Constitution by popularly elected conventions in each state. Suspecting
that Rhode Island, at least, would prove recalcitrant, it declared that the
Constitution would go into eect as soon as nine states ratied. The
convention method had the further advantage that judges, ministers,
and others ineligible to state legislatures, could be elected to a
convention. The nine-state provision was, of course, mildly

revolutionary. But the Congress of the Confederation, still sitting in New

York to carry on federal government until relieved, formally submitted
the new constitution to the states and politely faded out before the rst
presidential inauguration." (The Oxford History of the Am. People, by
Samuel Eliot Morison, 1965 ed., p. 312).

And so the American Constitution was ratied by nine (9) states on June 21, 1788
and by the last four states on May 29, 1790 (12 C.J. p. 679 footnote, 16 C.J.S. 27
by the state conventions and not by all thirteen (13) state legislatures as required
by Article XIII of the Articles of Confederation and Perpetual Union aforequoted
and in spite of the fact that the Federal Constitution as originally adopted suers
from two basic inrmities, namely, the absence of a bill of rights and of a provision
affirming the power of judicial review.
The liberties of the American people were guaranteed by subsequent amendments
to the Federal Constitution. The doctrine of judicial review has become part of
American constitutional law only by virtue of a judicial pronouncement by Chief
Justice Marshall in the case of Marbury vs. Madison (1803, 1 Cranch 137).
Until this date, no challenge has been launched against the validity of the
ratication of the American Constitution, or against the legitimacy of the
government organized and functioning thereunder.
In the 1946 case of Wheeler vs. Board of Trustees (37 SE 2nd 322, 326-330), which
enunciated the principle that the validity of a new or revised Constitution does not
depend on the method of its submission or ratication by the people, but on the fact
of at or approval or all option or acquiescence by the people, which fact of
ratication or adoption or acquiescence is all that is essential, the Court cited
precisely the case of the irregular revision and ratication by state conventions of
the Federal Constitution, thus:
"No case identical in its facts with the case now under
consideration has been called to our attention, and we have found
none. We think that the principle which we apply in the instant case was
very clearly applied in the creation of the constitution of the United
States. The convention created by a resolution of Congress had
authority to do one thing, and one only, to wit, amend the articles of
confederation. This they did not do, but submitted to the sovereign
power, the people, a new constitution. In this manner was the
constitution of the United States submitted to the people and it became
operative as the organic law of this nation when it 'had been properly
adopted by the people.
"Pomeroy's Constitutional Law, p. 55, discussing the convention
that formulated the constitution of the United States, has this to say:
'The convention proceeded to do, and did accomplish, what they were
not authorized to do by a resolution of Congress that called them
together. That resolution plainly contemplated amendments to the
articles of confederation, to be submitted to and passed by the
Congress, and afterwards ratied by all the State legislatures, in the

manner pointed out by the existing organic law. But the convention
soon became convinced that any amendments were powerless to
eect a cure; that the disease was too deeply seated to be reached by
such tentative means. They saw that the system they were called to
improve must be totally abandoned, and that the national idea must be
re-established at the center of their political society. It was objected by
some members, that they had no power, no authority, to construct a
new government. They had no authority, if their decisions were to be
nal; and no authority whatever, under the articles of confederation, to
adopt the course they did. But they knew that their labors were only to
be suggestions; and that they as well as any private individuals, and any
private individuals as well as they, had a right to propose a plan of
government to the people for their adoption. They were, in fact, a mere
assemblage of private citizens, and their work had no more binding
sanction than a constitution drafted by Mr. Hamilton in his oce, would
have had. The people, by their expressed will, transformed this
suggestion, this proposal, into an organic law, and the people might
have done the same with a constitution submitted to them by a single
citizen.'
xxx xxx xxx
". . . When the people adopt a completely revised or new
Constitution, the framing or submission of the instrument is not what
gives it binding force and effect. The fiat of the people, and only the that
of the people, can breathe life into a constitution.
xxx xxx xxx
". . . We do not hesitate to say that a court is never justied in
placing by implication a limitation upon the sovereign. This would be an
authorized exercise of sovereign power by the court. In State v. Swift,
69 Ind. 505, 519, the Indiana Supreme Court said: 'The people of a
State may form an original constitution, or abrogate an old one and
form a new one, at any time, without any political restriction except the
constitution of the United States; . . ." (37 SE 327-328, 329, italics
supplied.)

In the 1903 case of Weston vs. Ryan, the Court held:

"It remains to be said that if we felt at liberty to pass upon this
question, and were compelled to hold that the act of February 23,
1887, is unconstitutional and void, it would not, in our opinion, by any
means follow that the amendment is not a part o f our state
Constitution. In the recent case of Taylor vs. Commonwealth (Va.) 44
S.E. 754, the Supreme Court of Virginia hold that their state
Constitution of 1902, having been acknowledged and accepted by the
ocers administering the state government, and by the people, and
being in force without opposition, must be regarded as an existing
Constitution, irrespective of the question as to whether or not the
convention which promulgated it had authority so to do without

submitting it to a vote of the people. In Brittle v. People, 2 Neb. 198, is a

similar holding as to certain provisions of the Nebraska Constitution of
1886, which were added by the Legislature at the requirement of
Congress, though never submitted to the people for their approval."
(97 NW 349-350; italics supplied).

Against the decision in the Wheeler case, supra, conrming the validity of the
ratication and adoption of the American Constitution, in spite of the fact that such
ratication was a clear violation of the prescription on alteration and ratication of
the Articles of Confederation and Perpetual Union, petitioners in G.R. No. L-36165
dismissed this most signicant historical fact by calling the Federal Constitution of
the United States as a revolutionary one, invoking the opinion expressed in Vol. 16,
Corpus Juris Secundum, p. 27, that it was a revolutionary constitution because it did
not obey the requirement that the Articles of Confederation and Perpetual Union
can be amended only with the consent of all thirteen (13) state legislatures. This
opinion does not cite any decided case, but merely refers to the footnotes on the
brief historical account of the United States Constitution on p. 679 of Vol. 12, CJS.
Petitioners, on p. 18 of their main Notes, refer US to pp. 270-316 of the Oxford
History of the American People, 1965 Ed. by Samuel Eliot Morison, who discusses
the Articles of Confederation and Perpetual Union in Chapter XVIII captioned
"Revolutionary Constitution Making, 1775 1781" (pp. 270-281). In Chapter XX on
"The Creative Period in Politics, 1785-1788," Professor Morison delineates the
generals of the Federal Constitution, but does not refer to it even implicitly as a
revolutionary constitution (pp. 297-316). However, the Federal Constitution may be
considered revolutionary from the view point of McIver if the term revolution is
understood in "its wider sense to embrace decisive changes in the character of
government, even though they do not involve the violent overthrow of an
established order, . . ." (R.M. MacIver, The Web of Government, 1965 ed., p. 203).
It is rather ridiculous to refer to the American Constitution as a revolutionary
constitution. The Articles of Confederation and Perpetual Union that was in force
from July 12, 1776 to 1788, forged as it was during the war of independence was a
revolutionary constitution of the thirteen (13) states. In the existing Federal
Constitution of the United States which was adopted seven (7) or nine (9) years
after the thirteen (13) states won their independence and long after popular
support for the government of the Confederation had stabilized was not a product of
a revolution. The Federal Constitution was a "creation of the brain and purpose of
man" in an era of peace. It can only be considered revolutionary in the sense that it
is a radical departure from its predecessor, the Articles of Confederation and
Perpetual Union.

It is equally absurd to arm that the present Federal Constitution of the United
States is not the successor to the Articles of Confederation and Perpetual Union. The
fallacy of the statement is so obvious that no further refutation is needed.
As heretofore stated, the issue as to the validity of Proclamation No. 1102 strikes at
the validity and enforceability of the 1973 Constitution and of the government

established and operating thereunder. Petitioners pray for a declaration that the
1973 Constitution is inoperative (L-36164). If Proclamation No. 1102 is nullied,
then there is no valid ratication of the 1973 Constitution and the inevitable
conclusion is that the government organized and functioning thereunder is not a
legitimate government.
That the issue of the legitimacy of a government is likewise political and not
justiciable, had long been decided as early as the 1849 case of Luther vs. Borden (7
How. 1, 12 L.ed., 581), armed in the 1900 case of Taylor vs. Beckham (178 U.S.
548, 44 L.ed. 1187) and re-enunciated in 1912 in the case of Pacic States
Telephone and Telegraph Company vs. Oregon (223 U.S. 118, 133-151, 56 L.ed.
377-386). Because it rearmed the pronouncements in both Borden and Beckham
cases, it is sucient for us to quote the decision in Pacic States Telephone and
Telegraph Co., supra, penned by Mr. Chief Justice White, who restated:
"In view of the importance of the subject, the apparent
misapprehension on one side and seeming misconception on the other,
suggested by the argument as to the full signicance of the previous
doctrine, we do not content ourselves with a mere citation of the cases,
but state more at length than we otherwise would the issues and the
doctrine and the doctrine expounded in the leading and absolutely
controlling case Luther v. Borden, 7 How. 1, 12 L. ed 581.
xxx xxx xxx
". . . On this subject it was said (p. 38):
"'For, if this court is authorized to enter upon this inquiry, as
proposed by the plainti, and it should be decided that the charter
government had no legal existence during the period of time above
mentioned, if it had been annulled by the adoption of the opposing
government, then the laws passed by its legislature during that time
w e r e nullities; its taxes wrongfully collected; its salaries and
compensation to its ocers illegally paid; its public accounts improperly
settled; and the judgments and sentences of its courts in civil and
criminal cases null and void, and the ocers who carried their decisions
into operation answerable as trespassers, if not in some cases as
criminals.'
xxx xxx xxx
" 'The fourth section of the fourth article of the Constitution of
the United States shall guarantee to every state in the Union a
republican form of government, and shall protect each of them against
invasion; and on the application of the Legislature or of the Executive
(when the legislature cannot be convened) against domestic violence.
" 'Under this article of the Constitution it rests with Congress to
decide what government is the established one in a state. For, as the
United State guarantee to each state a republican government,

Congress must necessarily decide what government is established in

the state before it can determine whether it is republican or not. And
when the senators and representatives of a state are admitted into the
councils of the Union, the authority of the government under which
they are appointed, as well as its republican character, is recognized by
the proper constitutional authority. And its decision is binding on every
other department of the government, and could not be questioned in a
judicial tribunal. It is true that the contest in this case did not last long
enough to bring the matter to this issue; and as no senators or
representatives were elected under the authority of the government of
which Mr. Dorr was the head, Congress was not called upon to decide
the controversy. Yet the right to decide is placed there, and not in the
courts.'
xxx xxx xxx
". . . We do not stop to cite other cases which indirectly or
incidentally refer to the subject, but conclude by directing attention to
the statement by the court, speaking through Mr. Chief Justice Fuller, in
Taylor vs. Beckham, 178 U.S. 548, 44 L.ed. 1187, 20 Sup. Ct. Rep. 890,
1009, where, after disposing of a contention made concerning the 14th
Amendment, and coming to consider a proposition which was
necessary to be decided concerning the nature and eect of the
guaranty of S 4 of article 4, it was said (p. 578):
" 'But it is said that the 14th Amendment must be read with S 4 of
article 4, of the Constitution, providing that 'the United States shall
guarantee to every state in this Union a republican form of government,
and shall protect each of them against invasion; and on application of
the legislature, or the Executive (when the legislature cannot be
convened), against domestic violence.'
xxx xxx xxx
" 'It was long ago settled that the enforcement of this guaranty
belonged to the political department. Luther v. Borden, 7 How. 1,12
L.ed. 581. In that case it was held that the question, which of the two
opposing governments of Rhode Island, namely, the charter
government or the government established by a voluntary convention,
was the legitimate one, was a question for the determination of the
political department; and when that department had decided, the courts
were bound to take notice of the decision and follow it '
xxx xxx xxx
"As the issues presented, in their very essence, are, and have
long since by this court been, denitely determined to be political and
governmental, and embraced within the scope of the powers conferred
upon Congress, and not, therefore, within the reach of judicial power, it
follows that the case presented is not within our jurisdiction, and the
writ of error must therefore be, and it is, dismissed for want of

jurisdiction. " (223 U.S. pp. 142-151; italics supplied).

Even a constitutional amendment that is only promulgated by the Constitutional

Convention without authority there for and without submitting the same to the
people for ratication, becomes valid, when recognized, accepted and acted upon by
the Chief of State an a other government functionaries as well as by the people. In
the 1903 case of Taylor vs. Commonwealth (44 SE 754-755), the Court ruled:
"The sole ground urged in support of the contention that the
Constitution proclaimed in 1902 is invalid is that it was ordained and
promulgated by the convention without being submitted for ratication
or rejection by the people of the commonwealth.
"The Constitution of 1902 was ordained and proclaimed by a
convention duly called by direct vote of the people of the state to revise
and amend the Constitution of 1869. The result of the work of that
convention has been recognized, accepted, and acted upon as the only
valid Constitution of the state by the Governor in swearing delity to it
and proclaiming it, as directed thereby; by the Legislature in its formal
ocial act adopting a joint resolution, July 15, 1902, recognizing the
Constitution ordained by the convention which assembled in the city of
Richmond on the 12th day of June, 1901, as the Constitution of Virginia;
by the individual oaths of its members to support it, and by its having
been engaged for nearly a year in legislating under it and putting its
provisions into operation; but the judiciary in taking the oath prescribed
thereby to support it, and by enforcing its provisions; and by the people
in their primary capacity by peacefully accepting it and acquiescing in it,
by registering as voters under it to the extent of thousands throughout
the state, and by voting, under its provisions, at a general election for
their representatives in the Congress of the United States." (p. 755).

The Court in the Taylor case above-mentioned further said:

"While constitutional procedure for adoption or proposal to
amend the constitution must be duly followed, without omitting any
requisite steps, courts should uphold amendment, unless satised that
the constitution was violated in submitting the proposal . . . Substance
more than form must be regarded in considering whether the complete
constitutional system or submitting the proposal to amend the
constitution was observed."

In the 1925 case of Taylor vs. King (130 A 407, 408 410), the Court stated:
"There may be technical error in the manner in which a proposed
amendment is adopted or in its advertisement, act, yet if followed,
unobjected to, by approval of the electors, it becomes part of the
Constitution. Legal complaints to the submission may be made prior to
taking the vote but, if once sanctioned, the amendment is embodied
therein and cannot be attacked, either directly or collaterally, because of
any mistake antecedent thereto. Even though it be submitted at an
improper time, it is eective for all purposes when accepted by the

majority. Armstrong v. King, 281 Pa. 207, 126 A. 263." (130 A 409).

Even if the act of the Constitutional Convention is beyond its authority, such act
becomes valid upon ratication or adoption or acquiescence by the people. Thus, in
the 1905 case of Ex parte Birmingham and A.R. Company (42 SO pp. 118 & 123),
the Alabama Supreme Court upheld this principle and stated that: "The authorities
are almost uniform that this ratication of an unauthorized act by the people (and
the people are the principal in this instance) renders the act valid and binding."
It has likewise been held that it is not necessary that voters ratifying the new
Constitution are registered in the book of voters; it is enough that they are electors
voting on the new Constitution. (Bott vs. Wurts, 40 A 740 [1899]; 45 LRA 251,
italics supplied).
In the 1956 case of Thomson vs. Peoples State Bank (75 NW 2nd 370, 375), the
Supreme Court of Wisconsin ruled that "irregularity in the procedure for the
submission of the proposed constitutional amendment will not defeat the
ratification by the people."

Again, in the 1958 case of Swaim vs. Tuscaloosa County (103 SO 2nd 769), the
Alabama Supreme Court pronounced that "the irregularity in failing to publish the
proposed constitutional amendment once in each of the 4 calendar weeks next
preceding the calendar week in which the election was held or once in each of the 7day periods immediately preceding the day of the election as required by the
Constitution, did not invalidate the amendment which was ratified by the people."
The same principle was reiterated in 1961 by the Mississippi Supreme Court in
Barnes, et al. v. Ladner (131) SO 2nd 458, 462), where the admitted irregularities
or illegalities committed in the procedure for submission of the proposed
constitutional amendment to the people for ratification consisted of: "(a) the alleged
failure of the county election commissioners of the several counties to provide a
sucient. number of ballot boxes 'secured by good and substantial locks,' as
provided by Section 3249, Code of 1942, Rec., to be used in the holding of the
special election on the constitutional amendment, and (b) the alleged failure of the
State Election Commissioners to comply with the requirements of Code Sections
3204 and 3205 in the appointment of election commissioners in each of the 82
counties. The irregularities complained of, even if proved, were not such
irregularities as would have invalidated the election. " (Italics supplied; see also
Sylvester vs. Tindall, 8 SO 2nd 892; 154 Fla. 663).
Even prior to the election in November, 1970 of delegates to the Constitutional
Convention and during the deliberations of the Constitutional Convention from June
1, 1971 until martial law was proclaimed on Sept. 21, 1972, the salient reforms
contained in the 1973 Constitution which have long been desired by the people, had
been thoroughly discussed in the various committees of the Constitutional
Convention, on the oor of the convention itself, in civic forums and in all the media
of information. Many of the decrees promulgated by the Chief Executive from Sept.

22, 1972 to Jan. 17, 1973 implement some of the reforms and had been ratied in
Sec. 3(2) of Article XVII of the Constitution.
Petitioners cannot safely state that during martial law the majority of the people
cannot freely vote for these reforms and are not complying with the implementing
decrees promulgated by the President.
Free election is not inevitably incompatible with martial law. We had free elections
in 1951 and 1971 when the opposition won six out of eight senatorial seats despite
the suspension of the privileges of the writ of habeas corpus (see Lansang vs. Garcia,
et al., Dec. 14, 1971, 42 SCRA 448), which suspension implies constraint on
individual freedom as the proclamation of martial law. In both situations, there is no
total blackout of human rights and civil liberties.
All the local governments, dominated either by Nacionalistas or Liberals, as well as
ocials of the Legislative and Executive branches of the government elected and/or
appointed under the I935 Constitution have either recognized or are now
functioning under the 1973 Constitution, aside from the fact of its ratication by
the sovereign people through the Citizens' Assemblies. Ninety-ve (95) of a total of
one hundred ten (110) members of the House of Representatives including the
Speaker and the Speaker Pro Tempore as well as about eleven (11) Congressmen
who belong to the Liberal Party and fteen (15) of a total of twenty-four (24)
senators including Liberal senators Edgar U. Ilarde and John Osmea opted to serve
in the Interim Assembly, according to the certication of the Commission on
Elections dated February 19, 1973 (Annex Rejoinder-3 to Consolidated Rejoinder of
petitioners in L-36165). Only the ve (5) petitioners in L-36165 close their eyes to a
fait accompli. All the other functionaries recognize the new government and are
performing their duties and exercising their powers under the 1973 Constitution,
including the lower courts. The civil courts, military tribunals and quasi-judicial
bodies created by presidential decrees have decided some criminal, civil and
administrative cases pursuant to such decrees. The foreign ambassadors who were
accredited to the Republic of the Philippines before martial law continue to serve as
such in our country; while two new ambassadors have been accepted by the
Philippines after the ratication of the 1973 Constitution on January 17, 1973.
Copies of the 1973 Constitution had been furnished the United Nations
Organization and practically all the other countries with which the Philippines has
diplomatic relations. No adverse reaction from the United Nation or from the foreign
states has been manifested. On the contrary, our permanent delegate to the United
Nations Organization and our diplomatic representatives abroad appointed before
martial law continue to remain in their posts and are performing their functions as
such under the 1973 Constitution.
Even the Commission on Elections is now implementing the provisions of the 1973
Constitution by requiring all election registrars to register 18-year olds and above
whether literates or not, who are qualied electors under the 1973 Constitution
(see pars. 1-A(c), (d), & (e) of Annex A to Notes of respondents Puyat and Roy in L
36165).

In brief, it cannot be said that the people are ignoring the 1973 Constitution and the
government which is enforcing the same for over 10 weeks now. With the
petitioners herein, secessionists, rebels and subversives as the only possible
exceptions, the rest of the citizenry are complying with the decrees, orders and
circulars issued by the incumbent President implementing the 1973 Constitution
Of happy relevance on this point is the holding in Miller vs. Johnson 18 SW 522):
"If a set of men, not selected by the people according to the
forms of law, were to formulate an instrument and declare it the
constitution, it would undoubtedly be the duty of the courts to declare
its work a nullity. This would be revolution, and this the courts of the
existing government must resist until they are overturned by power,
and a new government established. The convention, however, was the
ospring of law. The instrument which we are asked to declare invalid
as a constitution has been made and promulgated according to the
forms of law. It is a matter of current history that both the executive
and legislative branches of the government have recognized its validity
as a constitution, and are now daily doing so. Is the question, therefore,
one of a judicial characters It is our undoubted duty, if a statute be
unconstitutional, to so declare it; also, if a provision of the state
constitution be in conict with the federal constitution, to hold the
former invalid. But this is a very dierent case. It may be said, however,
that, for every violation of or non-compliance with the law, there should
be a remedy in the courts. This is not, however, always the case. For
instance, the power of a court as to the acts of other departments of
the government is not an absolute one, but merely to determine
whether they have kept within constitutional limits, it is a duty, rather
than a power. The judiciary cannot compel a co-equal department to
perform a duty. It is responsible to the people; but if it does act, then,
when the question is properly presented, it is the duty of the court to
say whether it has conformed to the organic law. While the judiciary
should protect the rights of the people with great care and jealousy,
because this is its duty, and also because, in times of great popular
excitement, it is usually their last resort, yet it should at the same time
be careful to overstep the proper bounds of its power, as being
perhaps equally dangerous; and especially where such momentous
results might follow as would be likely in this instance, if the power of
the judiciary permitted, and its duty required, the overthrow of the work
of the convention.
"After the American Revolution the state of Rhode Island retained
its colonial character as its constitution, and no law existed providing
for the making of a new one. In 1841 public meetings were held,
resulting in the election of a convention to form a new one, to be
submitted to a popular vote. The convention framed one, submitted it
to a vote, and declared it adopted. Elections were held for state
ocers, who proceeded to organize a new government. The charter
government did not acquiesce in these proceedings, and finally declared
the state under martial law. It called another convention, which in 1843

formed a new constitution. Whether the charter government, or the

one established by the voluntary convention, was the legitimate one,
was uniformly held by the courts of the state not to be a judicial, but a
political, question; and, the political department having recognized the
one, it was held to be the duty of the judiciary to follow its decision. The
Supreme Court of the United States, in Luther v. Borden, 7 How. 1,
while not expressly deciding the principle, as it held the federal court,
yet in the argument approves it, and in substance says that where the
political department has decided such a matter the judiciary should
abide by it.
"Let us illustrate the diculty of a court deciding the question:
Suppose this court were to hold that the convention, when it
reassembled, had no power to make any material amendment, and that
such as were made are void by reason of the people having theretofore
approved the instrument Then, next, this court must determine what
amendments were material; and we nd the court, in eect, making a
constitution. This would be arrogating sovereignty to itself. Perhaps the
members of the court might dier as to what amendments are
material, and the result would be confusion and anarchy. One judge
might say that all the amendments, material and immaterial, were void;
another, that the convention had then the implied power to correct
palpable errors, and then the Court might dier as to what
amendments are material. If the instrument as ratied by the people
could not be corrected or altered at all or if the court must determine
what changes were material, then the instrument, as passed upon by
the people or as xed by the court could be lacking a promulgation by
the convention; and, if this be essential, then the question would arise,
what constitution are we now living under, and what is the organic law
of the state? A suggestion of these matters shows what endless
confusion and harm to the state might and likely would arise. If,
through error of opinion, the convention exceeded its powers, and the
people are dissatised, they have ample remedy, without the judiciary
being asked to overstep the proper limits of its power. The instrument
provides for amendment and change. If a wrong has been done, it can,
and the proper way in which it should be remedied, is by the people
acting as a body politic. It is not a question of whether merely an
amendment to a constitution, made without calling a convention, has
been adopted, as required by that constitution. If it provides how it is to
be done, then, unless the manner be followed, the judiciary, as the
interpreter of that constitution, will declare the amendment invalid.
Koehler v. Hill, 60 Iowa, 54.3,14 N.W. Rep. 738, and 15 N.W. Rep. 609;
State v. Tuy, 19 Nev. .391, 12 Pac. Rep. 835. But it is a case where a
new constitution has been formed and promulgated according to the
forms of law. Great interests have already arisen under it; important
rights exist by virtue of it; persons have been convicted of the highest
crimes known to the law, according to its provisions; the political power
of the government has in many ways recognized it; and, under such
circumstances, it is our duty to treat and regard it as a valid
constitution, and now the organic law of our commonwealth.

"We need not consider the validity of the amendments made after
the convention reassembled. If the making of them was in excess of its
powers, yet, as the entire instrument has been recognized as valid in
the manner suggested, it would be equally an abuse of power by the
judiciary and violative of the rights of the people, who can and
properly should remedy the matter, if not to their liking, if it were to
declare the instrument of a portion invalid, and bring confusion and
anarchy upon state." (italics supplied).

If this Court inquires into the validity of Proclamation No. 1102 and consequently of
the adoption of the 1973 Constitution, it would be exercising a veto power on the
act of the sovereign people, of whom this Court is merely an agent, which to say the
least, would be anomalous. This Court cannot dictate to our principal, the sovereign
people, as to how the approval of the new Constitution should be manifested or
expressed. The sovereign people have spoken and we must abide by their decision,
regardless of our notion as to what is the proper method of giving assent to the new
Charter. In this respect, WE cannot presume to know better than the incumbent
Chief Executive, who, unlike the members of this Court, only last January 8, 1973,
We armed in Osmea vs. Marcos (Pres. Election Contest No. 3, Jan. 8, 1973), was
re-elected by the vote of over 5 million electors in 1969 for another term of four
years until noon of December 30, 1973 under the 1935 Constitution. This Court,
not having a similar mandate by direct at from the sovereign people, to execute
the law and administer the aairs of government, must restrain its enthusiasm to
sally forth into the domain of political action expressly and exclusively reserved by
the sovereign people themselves.
The people in Article XV of the 1935 Constitution did not intend to tie their hands to
a specic procedure for popular ratication of their organic law. That would be
incompatible with their sovereign character of which We are reminded by Section 1,
of Article II of both the 1935 and the 1973 Constitutions.
The Opinion of Judge Thomas McIntire Cooley that the sovereign people cannot
violate the procedure for ratication which they themselves dene in their
Constitution, cannot apply to a unitary state like the Republic of the Philippines. His
opinion expressed in 1868 may apply to a Federal State like the United States, in
order to secure and preserve the existence of the Federal Republic of the United
States against any radical innovation initiated by the citizens of the fty (50)
different states of the American Union, which states may be jealous of the powers of
the Federal government presently granted by the American Constitution. This
dangerous possibility does not obtain in the case of our Republic.
Then again, Judge Cooley advanced the aforesaid opinion in 1868 when he wrote
his opus "Constitutional Limitations." * (Vol. 6, Encyclopedia Brit., 1969 ed. pp. 445446). It is possible that, were he live today, in a milieu vastly dierent from 1868 to
1898, he might have altered his views on the matter.
Even if conclusiveness is to be denied to the truth of the declaration by the

President in Proclamation No. 1102 that the people through their Citizens'
Assemblies had overwhelmingly approved the new Constitution, due regard to a
separate, coordinate and co-equal branch of the government demands adherence to
the presumption of correctness of the President's declaration. Such presumption is
accorded under the law and jurisprudence to ocials in the lower levels of the
Executive branch; there is no over-riding reason to deny the same to the Chief of
State as head of the Executive Branch. WE cannot reverse the rule on
presumptions, without being presumptuous, in the face of the certications by the
Oce of the Secretary of the Department of Local Government and Community
Development. (Annexes 1, to 1-E, Annexes 2 to 2-O to the compliance with
manifestation led by the Solicitor General on behalf of the respondents public
ocers dated March 7,1973). There is nothing in the record that contradicts, much
less overthrow the results of the referendum as certied. Much less are We justied
in reversing the burden of proof by shifting it from the petitioners to the
respondents. Under the rules on pleadings, the petitioners have the duty to
demonstrate by clear and convincing evidence their claim that the people did not
ratify through the Citizens' Assemblies nor adopt by acquiescence the 1973
Constitution. And petitioners have failed to do so.
No member of this Tribunal is justied in resolving the issues posed by the cases at
bar on the basis of reports relayed to him from private sources which could be
biased and hearsay, aside from the fact that such reports are not contained in the
record. Proclamation No. 1102 is not just an ordinary act of the Chief Executive. It is
a well-nigh solemn declaration which announces the highest act of the sovereign
people their imprimatur to the basic Charter that shall govern their lives
hereafter may be for decades, if not for generations.
Petitioners decry that even 15-year olds, ex-convicts and illiterates were allowed to
vote in the Citizens' Assemblies, despite their admission that the term "Filipino
people" in the preamble as well as "people" in Sections 1 and 5 of Article II of the
1935 Constitution and in Section 1(3) of Article III of the Bill of Rights includes all
Filipino citizens of all ages, of both sexes, whether literate or illiterate, whether
peaceful citizens, rebels, secessionists, convicts or ex-convicts. Without admitting
that ex-convicts voted in the referendum, about which no proof was even oered,
these sectors of our citizenry, whom petitioners seem to regard with contempt or
derision and whom petitioners would deny their sovereign right to pass upon the
basic Charter that shall govern their lives and the lives of their progenies, are
entitled as much as the educated, the law abiding, and those who are 21 years of
age or above to express their conformity or non-conformity to the proposed
Constitution, because their stake under the new Charter is not any less than the
stake of the more fortunate among us. As a matter of fact, these citizens, whose
juridical personality or capacity to act is limited by age, civil interdiction or ignorance
deserve more solicitude from the State than the rest of the citizenry. In the
ultimate analysis, the inclusion of those from 15 years up to below 21 years old, the
ex-convicts and the ignorant, is more democratic as it broadens the base of
democracy and therefore more faithful to the express armation in Section 1 of
Article II of the Declaration of Principles that "sovereignty resides in the people and
all government authority emanates from them."

Moreover, ex-convicts granted absolute pardon are qualied to vote. Not all exconvicts are banned from voting. Only those who had been sentenced to at least
one year imprisonment are disenfranchised but they recover their right of surage
upon expiration of ten years after service of sentence (Sec. 102, 1971 Rev. Elec.
Code). Furthermore, ex-convicts and imbeciles constitute a very negligible number
in any locality or barrio, including the localities of petitioners.
Included likewise in the delegated authority of the President, is the prerogative to
proclaim the results of the plebiscite or the voting the Citizens' Assemblies.
Petitioners deny the accuracy or correctness of Proclamation No. 1102 that the
1973 Constitution was ratied by the overwhelming vote of close to 15 million
citizens because there was no ocial certication as to the results of the same from
the Department of Local Governments. But there was such certication as per
Annexes 1 to 1-A to the Notes submitted by the Solicitor General as counsel for
respondents public ocers. This should suce to dispose of this point. Even in the
absence of such a certication, in much the same way that in passing laws,
Congress or the legislative body is presumed to be in possession of the facts upon
which such laws are predicated (Justice Fernando, The Power of Judicial Review,
1967 Ed., pp. 112-113, citing Lorenzo vs. Dir., etc., [1927] 50 Phil. 595 and
O'Gonmore, et al: vs. Hartford, etc., [1931] 282 U.S. 251), it should likewise be
presumed that the President was in possession of the facts upon which Proclamation
No. 1102 was based. This presumption is further strengthened by the fact that the
Department of Local Governments, the Department of National Defense and the
Philippine Constabulary as well as the Bureau of Posts are all under the President,
which oces, as his alter ego, are presumptively acting for and in behalf of the
President and their acts are valid until disapproved or reprobated by the President
(Planas vs. Gil, 67 Phil. 62, Villena vs. Secretary of Interior, 67 Phil. 451). To deny
the truth of the proclamation of the President as to the overwhelming majority vote
in the Citizens' Assemblies in favor of the new Constitution, is to charge the
President with falsication, which is a most grievous accusation. Under the rules of
pleadings and evidence, the petitioners have the burden of proof by preponderance
of evidence in civil cases and by proof beyond reasonable doubt in criminal
prosecutions, where the accused is always presumed to be innocent. Must this
constitutional right be reversed simply because the petitioners all assert the
contrary? Is the rule of law they pretend to invoke only valid as long as it favors
them?
The presumption of regularity in the performance of ocial functions is accorded by
the law and jurisprudence to acts of public ocers whose category in the ocial
hierarchy is very much lower than that of the Chief of State. What reason is there
to withhold such a presumption in favor of the President? Does the fact that the
President belong to the party in power and that four (4) of the ve (5) senators who
are petitioners in L-36165 belong to the opposition party, justify a discrimination
against the President in matters of this nature? Unsupported as their word is by any
credible and competent evidence under the rules of evidence, must the word of the
petitioners prevail over that of the Chief Executive, because they happen to be
former senators and delegates to the Constitutional Convention? More than any of
the petitioners herein in all these cases, the incumbent President realizes that he

risks the wrath of his people being visited upon him and the adverse or hostile
verdict of history; because of the restrictions on the civil liberties of his people,
inevitable concomitants of martial law, which necessarily entail some degree of
sacrice on the part of the citizenry. Until the contrary is established or
demonstrated, herein petitioners should grant that the Chief Executive is motivated
by what is good for the security and stability of the country, for the progress and
happiness of the people. All the petitioners herein cannot stand on the proposition
that the rights under the 1935 Constitution are absolute and invulnerable to
limitations that may be needed for the purpose of bringing about the reforms for
which the petitioners pretend to be clamoring for and in behalf of the people. The
ve (5) petitioners in L-36165 and four (4) of the seven (7) petitioners in L-36164
were all participants in the political drama of this country since 1946. They are
witness to the frustrations of well-meaning Presidents who wanted to eect the
reforms, especially for the benet of the landless and the laboring class how
politics and political bargaining had stymied the eectuation of such reforms thru
legislation. The eight (8) petitioners in L-36164 and L-36165 may not have
participated in the systematic blocking of the desired reforms in Congress or outside
of it; but the question may be asked as to what exactly they did to support such
reforms. For the last seven (7) decades since the turn of the century, for the last
thirty-ve (35) years since the establishment of the Commonwealth government in
1935 and for the last twenty seven (27) years since the inauguration of the
Republic on July 4, 1946, no tangible substantial reform had been eected, funded
and seriously implemented, despite the violent uprisings in the thirties, and from
1946 to 1952, and the violent demonstrations of recent memory. Congress and the
oligarchs acted like ostriches, "burying their heads in timeless sand." Now the hopes
for the long-awaited reforms to be eected within a year or two are brighter. It
would seem therefore to be the duty of everyone including herein petitioners to
give the present leadership the opportunity to institute and carry out the needed
reforms as provided for in the new or 1973 Constitution and thru the means
prescribed in that same Constitution.

As stated in Wheeler vs. Board of Trustees, "a court is never justied in placing by
implication a limitation upon the sovereign."
This Court in the Gonzales and Tolentino cases transcended its proper sphere and
encroached upon the province exclusively reserved to and by the sovereign people.
This Court did not pay heed to the principle that the courts are not the fountain
spring of all remedies for all wrongs. WE cannot presume that we alone can speak
with wisdom as against the judgment of the people on the basic instrument which
aects their very lives. WE cannot determine what is good for the people or what
ought to be their fundamental law. WE can only exercise the power delegated to Us
by the sovereign people, to apply or interpret the Constitution and the laws for the
benet of the people, not against them nor to prejudice them. WE cannot perform
an act inimical to the interest of Our principal, who at any time may directly
exercise their sovereign power of ratifying a new Constitution in the manner
convenient to them

It is pertinent to ask whether the present Supreme Court can function under the
1935 Constitution without being a part of the government established pursuant
thereto. Unlike in the Borden case, supra, where there was at least another
government claiming to be the legitimate organ of the state of Rhode Island
(although only on paper as it had no established organ except Dorr who represented
himself to be its head; in the cases at bar there is no other government distinct from
and maintaining a position against the existing government headed by the
incumbent Chief Executive. (See Taylor vs. Commonwealth, supra). There is not
even a rebel government duly organized as such even only for domestic purposes,
let alone a rebel government engaged in international negotiations. As heretofore
stated, both the executive branch and the legislative branch established under the
1935 Constitution had been supplanted by the government functioning under the
1973 Constitution as of January 17, 1973. The vice president elected under the
1935 Constitution does not asset any claim to the leadership of the Republic of the
Philippines. Can this Supreme Court legally exist without being part of any
government?
Brilliant counsel for petitioners in L-36165 has been quite extravagant in his
appraisal of Chief Justice Roger Brooke Taney whom he calls the "hero of the
American Bar," because during the American civil war he apparently had the
courage to nullify the proclamation of President Lincoln suspending the privileges of
the writ of habeas corpus in Ex parte Merryman (Federal Case No. 9487 [1861]).
But who exactly was Chief Justice Roger Brooke Taney? The Editorial Board of Vol.
21 of the Encyclopedia Brit., 1966 ed. (pp. 778-779, 1969 ed., pp. 654-657), briey
recounts that he was born in 1777 in Calvert County, Maryland, of parents who
were landed aristocrats as well as slave owners. Inheriting the traditional
conservatism of his parents who belonged to the landed aristocracy, Taney became
a lawyer in 1799, practiced law and was later appointed Attorney General of
Maryland. He also was a member of the Maryland state legislature for several
terms. He was a leader of the Federalist Party, which disintegrated after the war of
1812, compelling him to join the Democratic Party of Andrew Jackson, also a slave
owner and landed aristocrat, who later appointed him rst as Attorney General of
the United States, then Secretary of the Treasury and in 1836 Chief Justice of the
United States Supreme Court to succeed Chief Justice John Marshall, in which
position he continued for 28 years until he died on October 21, 1864. His death
"went largely unnoticed and unregretted." Because he himself was a slave owner
and a landed aristocrat, Chief Justice Taney sympathized with the Southern States
and, even while Chief Justice, hoped that the Southern States would be allowed to
secede peacefully from the Union. That he had no sympathy for the Negroes was
revealed by his decision in Dred Scott vs. Sandford (19 How. 398 [1857]) where he
pronounced that the American Negro is not entitled to the rights of an American
citizen and that his status as a slave is determined by his returning to a slave state.
Once can therefore discern his hostility towards President Lincoln when he decided
Ex parte Merryman, which animosity to say the least does not bet a judicial mind.
Such a man could hardly be spoken of as a hero of the American Bar, least of all of
the American nation. The choice of heroes should not be expressed indiscriminately
just to embellish one's rhetoric.

Distinguished counsel in L-36165 appears to have committed another historical

error, which may be due to his rhetorical in the Encyclopedia Britannica (Vol. 9,
1969 ed., pp. 508-509) to this eect. On the contrary, Encyclopedia Britannica (Vol.
17, Encyclopedia Brit., 1966 & 1969 eds., 732-733), refers to Marshal Henri Philippe
Petain as the genuine hero or "Saviour of Verdun"; because he held Verdun against
the 1916 oensive of the German army at the cost of 350,000 of his French
soldiers, who were then demoralized and plotting mutiny. Certainly, the surviving
members of the family of Marshal Petain would not relish the error. And neither
would the members of the clan of Marshal Foch acknowledge the undeserved
accolade, although Marshal Foch has a distinct place in history on his own merits.
The foregoing clarication is oered in the interest of true scholarship and historical
accuracy, so that the historians, researchers and students may not be led astray or
be confused by esteemed counsel's eloquence and mastery of the spoken and
written word as well as by his eminence as law professor, author of law books,
political leader, and member of the newly integrated Philippine Bar.
It is quite intriguing why the eminent counsel and co-petitioner in L-36164 did not
address likewise his challenge to the ve (5) senators who are petitioners in L36165 to also act as "heroes and idealists," to defy the President by holding sessions
by themselves alone in a hotel or in their houses if they can muster a quorum or by
causing the arrest of other senators to secure a quorum and thereafter remove
respondents Puyat and Roy (Avelino, et al. vs. Cuenco, et al. [1949] 83 Phil. 17), if
they believe most vehemently in the justice and correctness of their position that
the 1973 Constitution has not been validly ratied, adopted or acquiesced in by the
people since January 18, 1973 until the present. The proclaimed conviction of
petitioners in L 36165 on this issue would have a ring of credibility, if they
proceeded rst to hold a rump session outside the legislative building; because it is
not unreasonable to demand or to exact that he who exhorts others to be brave
must rst demonstrate his own courage. Surely, they will not arm that the mere
ling of their petition in L-36165 already made them "heroes and idealists." The
challenge likewise seems to insinuate that the members of this Court who disagree
with petitioners' views are materialistic cowards or mercenary fence-sitters. The
Court need not be reminded of its solemn duty and how to perform it. WE refuse to
believe that petitioners and their learned as well as illustrious counsels, scholars and
liberal thinkers that they are, do not recognize the sincerity of those who entertain
opinions that clash with their own. Such an attitude does not sit well with the
dictum that "We can dier without being dicult; we can disagree without being
disagreeable," which distinguished counsel in L 36165 is wont to quote.
WE reserve the right to prepare an extensive discussion of the other points raised by
petitioners, which We do not nd now necessary to deal with in view of Our opinion
on the main issue.
IN VIEW OF THE FOREGOING, ALL THE PETITIONS IN THESE FIVE CASES SHOULD
BE DISMISSED.
MAKASIAR, J .:

Pursuant to Our reservation, We now discuss the other issues raised by the
petitioners.
II
EVEN IF ISSUE IS JUSTICIABLE, PEOPLE'S RATIFICATION, ADOPTION OR
ACQUIESCENCE CREATES STRONG PRESUMPTION OF VALIDITY OF 1973
CONSTITUTION.
As intimated in the aforecited cases, even the courts, which arm the proposition
that the question as to whether a constitutional amendment or the revised or new
Constitution has been validly submitted to the people for ratication in accordance
with the procedure prescribed by the existing Constitution, is a justiciable question,
accord all the presumption of validity to the constitutional amendment or the
revised or new Constitution after the government ocials or the people have
adopted or ratied or acquiesced in the new Constitution or amendment, although
there was an illegal or irregular or no submission at all to the people. (Collier vs.
Gray, 4th Dec. Dig. 935 [1934]; Hammond vs. Clark, 71 SE 479, 482-483; People
vs. Sours, 31 Colo. 369, 74 Pac. 167, 102 Am. St. Rep. 34; Thompson vs. Winneth,
78 Neb. 379, 110 NW 1113, 10 L.R.A. [N.S.] 149; State vs. Laylin, 69 Ohio St. Rep.
1, 68 NE 574; Weston vs. Ryan, 70 Neb. 211, 97 NW 347; Combs vs. State, 81 Ga.
780, 8 SE 318; Woodward vs. State, 103 Ga. 496, 30 SE 522; Corre vs. Cooney, 70
Mont. 355, 225 P 1007, 1009). As late as 1971, the courts stressed that the
constitutional amendment or the new Constitution should not be condemned
"unless in our judgment its nullity is manifest beyond reasonable doubt" (1971 case
of Moore vs. Shanahan, 486 Pac. 2d 506, 207 Karl. 1, 645; and the 1956 case of
Tipton vs. Smith, et al., supra).
Mr. Justice Enrique M. Fernando, speaking for the Court, pronounced that the
presumption of constitutionality must persist in the absence of factual foundation of
record to overthrow such presumption (Ermita-Malate Hotel, etc. vs. City Mayor, L24698, July 31, 1967, 20 SCRA 849).

III
CONSTITUTIONAL CONVENTION CO-EQUAL WITH AND INDEPENDENT OF
CONGRESS, EXECUTIVE AND JUDICIARY.
The Constitutional Convention is co-ordinate and co-equal with, as well as
independent of, the three grand departments of the Government, namely, the
legislative, the executive and the judicial. As a fourth separate and distinct branch,
to emphasize its independence, the Convention cannot be dictated to by either of
the other three departments as to the content as well as form of the Charter that it
proposes. It enjoys the same immunity from interference or supervision by any of
the aforesaid branches of the Government in its proceedings, including the printing
of its own journals (Taada and Fernando, Constitution of the Philippines, 1952 ed.,
Vol. I, pp. 8-9; Malcolm and Laurel, Phil. Const. Law, p. 22; Frantz vs. Autry, 91 Pac.
193). Implicit in that independence, for the purpose of maintaining the same
unimpaired and in order that its work will not be frustrated, the Convention has the
power to x the date for the plebiscite and to provide funds therefor. To deny the

Convention such prerogative, would leave it at the tender mercy of both legislative
and executive branches of the Government. An unsympathetic Congress would not
be disposed to submit the proposed Constitution drafted by the Constitutional
Convention to the people for ratication, much less appropriate the necessary funds
therefor. That could have been the fate of the 1973 Constitution, because the same
abolished the Senate by creating a unicameral National Assembly to be presided by
a Prime Minister who wields both legislative and executive powers and is the actual
Chief Executive, for the President contemplated in the new Constitution exercises
primarily ceremonial prerogatives. The new Constitution likewise shortened
abruptly the terms of the members of the present Congress (whose terms end on
December 31, 1913, 1975 and 1977) which provides that the new Constitution
shall take eect immediately upon its ratication (Sec. 16, Article XVII, 1973
Constitution). The fact that Section 2 of the same Article XVII secures to the
members of Congress membership in the interim National Assembly as long as they
opt to serve therein within thirty (30) days after the ratication of the proposed
Constitution, aords them little comfort; because the convening of the interim
National Assembly depends upon the incumbent President (under Sec. 3[1], Art.
XVII, 1973 Constitution). Under the foregoing circumstances, the members of
Congress, who were elected under the 1935 Constitution, would not be disposed to
call a plebiscite and appropriate funds therefor to enable the people to pass upon the
1973 Constitution, ratication of which means their elimination from the political
scene. They will not provide the means for their own liquidation.

Because the Constitutional Convention, by necessary implication as it is

indispensable to its independence and eectiveness, possesses the power to call a
plebiscite and to appropriate funds for the purpose, it inescapably must have the
power to delegate the same to the President, who, in the estimation of the
Convention can better determine the appropriate time for such a referendum as
well as the amount necessary to eect the same, for which reason the Convention
thru Resolution No. 29 approved on November 22, 1972, which superseded
Resolution No. 5843 adopted on November 16, 1972, proposed to the President
"that a decree be issued calling a plebiscite for the ratication of the proposed new
Constitution on such appropriate date as he shall determine and providing for the
necessary funds therefor, . . .," after stating in its "whereas" clauses that the 1971
Constitutional Convention is expected to complete its work by the end of
November, 1972, that the urgency of instituting reforms rendered imperative the
early approval of the new Constitution, and that the national and local leaders
desire that there be continuity in the immediate transition from the old to the new
Constitution.
If Congress can legally delegate to the Chief Executive or his subaltern the power to
promulgate subordinate rules and regulations to implement the law, this authority
to delegate implementing rules should not be denied to the Constitutional
Convention, a co-equal body.
Apart from the delegation to the Chief Executive of the power to call a plebiscite

and to appropriate funds therefor by the Constitutional Convention thru its

Resolution No. 29, the organization of the Citizens' Assemblies for consultation on
national issues, is comprehended within the ordinance-making power of the
President under Section 63 of the Revised Administrative Code, which expressly
confers on the Chief Executive the power to promulgate administrative acts and
commands touching on the organization or mode of operation of the government or
re-arranging or re-adjusting any district, division or part of the Philippines "or
disposing of issues of general concern . . ." (Italics supplied). Hence, as consultative
bodies representing the localities including the barrios, their creation by the
President thru Presidential Decree No. 86 of December 31, 1972, cannot be
successfully challenged.
The employment by the President of these Citizens' Assemblies for consultation on
the 1973 Constitution or on whether there was further need of a plebiscite thereon,
both issues of national concern is still within the delegated authority reposed
in him by the Constitutional Convention as aforesaid.
It should be noted that Resolution No. 29, which superseded Resolution No. 5843,
does not prescribe that the plebiscite must be conducted by the Commission on
Elections in accordance with the provisions of the 1971 Revised Election Code. If
that were the intention of the Constitutional Convention in making the delegation,
it could have easily included the necessary phrase for the purpose, some such
phrase like "to call a plebiscite to be supervised by the Commission on Elections in
accordance with the provisions of the 1971 Revised Election Code (or with existing
laws)." That the Constitutional Convention omitted such phrase, can only mean
that it left to the President the determination of the manner by which the plebiscite
should be conducted, who shall supervise the plebiscite, and who can participate in
the plebiscite. The fact that said Resolution No. 29 expressly states "that copies of
this resolution as approved in plenary session be transmitted to the President of the
Philippines and the Commission on Elections for implementation," did not in eect
designate the Commission on Elections as supervisor of the plebiscite. The copies of
said resolution that were transmitted to the Commission on Elections at best serve
merely to notify the Commission on Elections about said resolution, but not to
direct said body to supervise the plebiscite. The calling as well as conduct of the
plebiscite was left to the discretion of the President, who, because he is in
possession of all the facts funnelled to him by his intelligence services, was in the
superior position to decide when the plebiscite shall be held, how it shall be
conducted and who shall oversee it.
It should be noted that in approving said Resolution No. 29, the Constitutional
Convention itself recognized the validity of, or validated Presidential Proclamation
No. 1081 placing the entire country under martial law by resolving to "propose to
President Ferdinand E. Marcos that a decree be issued calling a plebiscite . . ." The
use of the term "decree" is signicant for the basic orders regulating the conduct of
all inhabitants are issued in that form and nomenclature by the President as the
Commander in Chief and enforcer of martial law. Consequently, the issuance by the
President of Presidential Decree No. 73 on December 1, 1972 setting the plebiscite
on January 15, 1973 and appropriating funds therefor pursuant to said Resolution

No. 29, is a valid exercise of such delegated authority.

Such delegation, unlike the delegation by Congress of the rule- making power to the
Chief Executive or to any of his subalterns, does not need sucient standards to
circumscribe the exercise of the power delegated, and is beyond the competence of
this Court to nullify. But even if adequate criteria should be required, the same are
contained in the "Whereas" clauses of the Constitutional Convention Resolution No.
29, thus:
"WHEREAS, the 1971 Constitutional Convention is expected to
complete its work of drafting a proposed new Constitution for the
Republic by the end of November, 1972;
"WHEREAS, in view of the urgency of instituting reforms, the
early approval of the New Constitution has become imperative;
"WHEREAS, it is the desire of the national and local leaders that
there be continuity in the immediate political transition from the old to
the New Constitution;" (Annex "1" of Answer, Res. No. 29,
Constitutional Convention).

As Mr. Justice Fernando, with whom Messrs. Justices Barredo, Antonio and the writer
concurred in the Plebiscite Cases, stated:
". . . Once its work of drafting has been completed, it could itself direct the
submission to the people for ratication as contemplated in Article XV of the
Constitution. Here it did not do so. With Congress not being in session,
could the President, by the decree under question, call for such a plebiscite?
Under such circumstances, a negative answer certainly could result in the
work of the Convention being rendered nugatory. The view has been
repeatedly expressed in many American state court decisions that to avoid
such undesirable consequence, the task of submission becomes ministerial,
with the political branches devoid of any discretion as to the holding of an
election for that purpose. Nor is the appropriation by him of the amount
necessary to be considered as oensive to the Constitution. If it were done
by him in his capacity as President, such an objection would indeed have
been formidable, not to say insurmountable. If the appropriation were made
in his capacity as agent of the Convention to assure that there be
submission to the people, then such an argument loses force. The
Convention itself could have done so. It is understandable why it should be
thus. If it were otherwise, then a legislative body, the appropriating arm of
the government, could conceivably make use of such authority to compel
the Convention to submit to its wishes, on pain of being rendered nancially
distraught. The President then, if performing his role as its agent, could be
held as not devoid of such competence." (pp. 2-3, concurring opinion of J.
Fernando in L-35925, etc., italics supplied).

IV
VAGUENESS OR AMBIGUITY DOES NOT INVALIDATE 1973 CONSTITUTION

(1)Petitions challenge the 1973 draft as vague and incomplete, and alluded to their
arguments during the hearings on December 18 and 19, 1972 on the Plebiscite
Cases. But the inclusion of questionable or ambiguous provisions does not aect the
validity of the ratication or adoption of the 1973 Constitution itself (Pope vs. Gray,
104 SO, 2d 841; 7th Dec. pp. 212-219, 1956-1966).
Alexander Hamilton, one of the leading founders and defenders of the American
Constitution, answering the critics of the Federal Constitution, stated that: "I never
expect to see a perfect work from imperfect man. The result of the deliberations of
all collective bodies must necessarily be a compound, as well of the errors and
prejudices as of the good sense and wisdom, of the individuals of whom they are
composed. The compacts which are to embrace thirteen distinct States in a common
bond of amity and union, must necessarily be a compromise of as many dissimilar
interests and inclinations. How can perfection spring from such materials?" (The
Federalist, Modern Library Ed., pp. xx-xxi).
(2)The 1973 Constitution is likewise impugned on the ground that it contains
provisions which are ultra vires or beyond the power of the Constitutional
Convention to propose.
This objection relates to the wisdom of changing the form of government from
Presidential to Parliamentary and including such provisions as Section 3 of Article IV,
Section 15 of Article XIV and Sections 3(2) and 12 of Article XVII in the 1973
Constitution.
Article IV
"Sec. 3.The right of the people to be secure in their persons, houses,
papers, and eects against unreasonable searches and seizures of
whatever nature and for any purpose shall not be violated, and no search
warrant or warrant of arrest shall issue except upon probable case to be
determined by the judge, or such other responsible ocer as may be
authorized by law, after examination under oath or armation of the
complainant and the witnesses he may produce, and particularly describing
the place to be searched, and the persons or things to be seized."

Article XIV
"Sec. 15.Any provision of paragraph one, Section fourteen, Article Eight and
of this Article notwithstanding, the Prime Minister may enter into
international treaties or agreements as the national welfare and interest may
require." (Without the consent of the National Assembly.)
Article XVII
"Sec. 3(2)All proclamations, orders, decrees, instructions, and acts
promulgated, issued, or done by the incumbent President shall be part of
the law of the land, and shall remain valid, legal, binding and eective even

after lifting of martial law or the ratication of this Constitution, unless

modied, revoked, or superseded by subsequent proclamations, orders,
decrees, instructions, or other acts of the incumbent President, or unless
expressly and explicitly modied or repealed by the regular National
Assembly.
xxx xxx xxx
"Sec. 12.All treaties, executive agreements, and contracts entered into by
the Government, or any subdivision, agency, or instrumentality thereof,
including government-owned or controlled corporations, are hereby
recognized as legal, valid and binding. When the national interest so
requires, the incumbent President of the Philippines or the interim Prime
Minister may review all -contracts, concessions, permits, or other forms of
privileges for the exploration, development, exploitation, or utilization of
natural resources entered into, granted, issued or acquired before the
ratification of this Constitution."

In the Plebiscite Cases (L-35925, L-35929, L-35940, L-35942, L-35948, L-35953, L35961, L-35965, & L-35979), Chief Justice Roberto Concepcion, concurred in by
Justices Fernando, Barredo, Antonio and the writer, overruled this objection, thus:
". . . Regardless of the wisdom and moral aspects of the
contested provisions of the proposed Constitution, it is my considered
view that the Convention was legally deem t to propose save
perhaps what is or may be insistent with what is now known,
particularly in international law, as Jus Cogens not only because the
Convention exercised sovereign powers delegated thereto by the
people although insofar only as the determination of the proposals
to be made and formulated by said body is concerned but also,
because said proposals cannot be valid as part of our Fundamental
Law unless and until 'approved by the majority of the votes cast at an
election which' said proposals 'are submitted to the people for their
ratication,' as provided in Section 1 of Article XV of the 1935
Constitution." (Pp. 11-18, Decision in L-35925, etc.).

This Court likewise enunciated in Del Rosario vs. Comelec (L- 32476, Oct. 20, 1970,
35 SCRA 367) that the Constitutional Convention has the authority to "entirely
overhaul the present Constitution and propose an entirely new Constitution based
on an ideology foreign to the democratic system . . .; because the same will be
submitted to the people for ratication. Once ratied by the sovereign people, there
can be no debate about the validity of the new Constitution."
Mr. Justice Fernando, concurring in the same Plebiscite Cases, cited the foregoing
pronouncement in the Del Rosario case, supra, and added: ". . . it seems to me a
sucient answer that once convened, the area open for deliberation to a
constitutional convention . . ., is practically limitless" (citing Cf. Koehler vs. Hill, 14
NW 738, 60 Iowa 543 [1883]; Hatch vs. Stoneman, 6 P 734, 66 Cal. 632 [1885];
MacMillan v. Blattner, 25 NW 245, 67 Iowa 287 [1895]; State v. Powell, 27 SO 297,
77 Miss. 543 [1900]; Hammond v. Clark, 71 SE 479, 136 Ga. 313 [1911]; Hamilton

v. Vaughan, 179 NW 533, 212 Mich. 31 [1920]; State v. Smith, 138 NE 881, 105
Ohio St. 570 [1922]; Looney vs. Leeper, 292 P 365, 145 Okl. 202 [1930]; School
District vs. City of Pontiac, 247 NW 474, 262 Mich. 338 [1933]).
Mr. Justice Barredo, in his concurring opinion in said Plebiscite Cases, expressed the
view "that when the people elected the delegates to the Convention and when the
delegates themselves were campaigning, such limitation of the scope of their
function and objective was not in their minds"

V
1973 CONSTITUTION DULY ADOPTED AND
PROMULGATED.
Petitioners next claim that the 1971 Constitutional Convention adjourned on
November 30,1972 without ocially promulgating the said Constitution in Filipino
as required by Sections 3(1) of Article XV on General Provisions of the 1973
Constitution. This claim is without merit because their very Annex "M" is the
Filipino version of the 1973 Constitution, and, like the English version, contains the
certication by President Diosdado Macapagal of the Constitutional Convention,
duly attested by its Secretary, that the proposed Constitution was approved on
second reading on the 27th day of November, 1972 and on third reading in the
Convention's 291st plenary session on November 29,1972 and accordingly signed
on November 30, 1972 by the delegates whose signatures are thereunder axed. It
should be recalled that Constitutional Convention President Diosdado Macapagal
was, as President of the Republic from 1962 to 1965, then the titular head of the
Liberal Party to which four (4) of the petitioners in L 36165 including their counsel,
former Senator Jovito Salonga, belong. Are they repudiating and disowning their
former party leader and benefactor?

VI
ARTICLE XV OF 1935 CONSTITUTION DOES NOT PRESCRIBE ANY PROCEDURE
FOR RATIFICATION OF 1973 CONSTITUTION.
(1)Article XV of the 1935 Constitution simply provides that "such amendments shall
be valid as part of this Constitution when approved by a majority of the votes cast
at an election at which the amendments are submitted to the people for
ratification."
But petitioners construe the aforesaid provision to read: "Such amendments shall be
valid as part of this Constitution when approved by a majority of the votes cast at
an election called by Congress at which the amendments are submitted for
ratication by the qualied electors dened in Article V hereof supervised by the
Commission on Elections in accordance with the existing election law and after such
amendments shall have been published in all the newspapers of general circulation
for at least four months prior to such election."
This position certainly imposes limitation on the sovereign people, who have the
sole power of ratication, which Imposition by the Court is never justied (Wheeler

vs. Board of Trustees, supra).

In eect, petitioners and their counsels are amending by a strained and tortured
construction Article XV of the 1935 Constitution. This is a clear case of usurpation of
sovereign power they do not possess through some kind of escamotage. This
Court should not commit such a grave error in the guise of judicial interpretation.
In all the cases where the court held that illegal or irregular submission, due to
absence of substantial compliance with the procedure prescribed by the Constitution
and/or the law nullies the proposed amendment or the new Constitution, the
procedure prescribed by the state Constitution is so detailed that it species that the
submission should be at a general or special election, or at the election for members
of the State legislature only or of all state ocials only or of local ocials only, or of
both state and local ocials; xes the date of the election or plebiscite limits the
submission to only electors or qualied electors; prescribes the publication of the
proposed amendment or a new Constitution for specic period prior to the election
or plebiscite, and designates the ocer to conduct the plebiscite, to canvass and to
certify the results, including the form of the ballot which should so state the
substance of the proposed amendments to enable the voter to vote on each
amendment separately; or authorizes expressly the Constitutional Convention or
the legislature to determine the procedure or certain details thereof. See the State
Constitutions of Alabama [1901]; Arizona [1912]; Arkansas [1874]; Colorado
[1976]; Connecticut [1818]; Florida [1887]; Georgia [1945]; Illinois [1970]; Indiana
[1851]; Iowa [1857]; Kansas [1861]; Kentucky [1891]; Louisiana [1921]; Maryland
[1867]; Massachusetts [1790]; Michigan [1909]; Minnesota [1857]; Mississippi
[1890]; and Missouri [1945]).
As typical examples:
Constitution of Alabama (1901):
"Article XVIII.Mode of Amending the Constitution
"Sec. 284.Legislative Proposals. Amendments may be proposed to this
Constitution by the legislature in the manner following: The proposed
amendments shall be read in the house in which they originate on three
several days, and, if upon the third reading three-fths of all the members
elected to that house shall vote in favor thereof, the proposed amendments
shall be sent to the other house, in which they shall likewise be read on three
several days, and if upon the third reading three-fths of all the members
elected to that house shall vote in favor of the proposed amendments, the
legislature shall order an election by the qualied electors of the state upon
such proposed amendments to be held either at the general election next
succeeding the session of the legislature at which the amendments are
proposed or upon another day appointed by the legislature, not less than
three months after the nal adjournment of the session of the legislature at
which the amendments were proposed. Notice of such election, together
with the proposed amendments, shall be given by proclamation of the
governor, which shall be published in every county in such manner as the

legislature shall direct, for at least eight successive weeks next preceding
the day appointed for such election. On the day so appointed an election
shall be held for the vote of the qualied electors of the state upon the
proposed amendments. If such election be held on the day of the general
election, the ocers of such general election shall open a poll for the vote of
the qualied electors upon the proposed amendments; If it be held on a day
other than that of a general election, ocers for such election shall be
appointed; and the election shall be held in all things in accordance with the
law governing general elections. In all elections upon such proposed
amendments, the votes cast thereat shall be canvassed, tabulated, and
returns thereof be made to the secretary of state, and counted, in the same
manner as in elections for representatives to the legislature; and if it shall
thereupon appear that a majority of the qualied electors who voted at such
election upon the proposed amendments voted in favor of the same, such
amendments shall be valid to all intents and purposes as parts of this
Constitution. The result of such election shall be made known by
proclamation of the governor. Representation in the legislature shall be
based upon population, and such basis of representation shall not be
changed by constitutional amendments.

"Sec. 285.Form of ballot for amendment. Upon the ballots used at all
elections provided for in section 284 of this Constitution the substance or
subject matter of each proposed amendment shall be so printed that the
nature thereof shall be clearly indicated. Following each proposed
amendment on the ballot shall be printed the word "Yes" and immediately
under that shall be printed the word "No". The choice of the elector shall be
indicated by a cross mark made by him or under his direction, opposite the
word expressing his desire, and no amendment shall be adopted unless it
receives the armative vote of a majority of all the qualied electors who
vote at such election."

Constitution of Arkansas (1874):

"Article XIX. Miscellaneous Provisions.
"Sec. 22.Constitutional amendments. Either branch of the General Assembly
at a regular session thereof may propose amendments to this Constitution,
and, if the same be agreed to by a majority of all the members elected to
each house, such proposed amendments shall be entered on the journal
with the yeas and nays, and published in at least one newspaper in each
county, where a newspaper is published, for six months immediately
preceding the next general election for Senators and Representatives, at
which time the same shall be submitted to the electors of the State for
approval or rejection; and if a majority of the electors voting at such election
adopt such amendments the same shall become a part of this Constitution;
but no more than three amendments shall be proposed or submitted at the
same time. They shall be so submitted as to enable the electors to vote on
each amendment separately."

Constitution of Kansas (1861):

"Article XIV.Amendments.
"Sec. 1.Proposal of amendments; publications; elections. Propositions for
the amendment of this constitution may he made by either branch of the
legislature; and if two thirds of all the members elected to each house shall
concur therein, such proposed amendments, together with the yeas and
nays, shall be entered on the journal; and the secretary of state shall cause
the same to be published in at least one newspaper in each county of the
state where a newspaper is published, for three months preceding the next
election for representatives, at which time, the same shall be submitted to
the electors, for their approval or rejection; and if a majority of the electors
voting on said amendments, at said election, shall adopt the amendments,
the same shall become a part of the constitution. When more than one
amendment shall be submitted at the same time, they shall be so submitted
as to enable the electors to vote on each amendments separately; and not
more than three propositions to amend shall be submitted at the same
election."

Constitution of Maryland (1867):

"Article XIV.Amendments to the Constitution.
"Sec. 1.Proposal in general assembly; publication; submission to voters;
governor's proclamation. The General Assembly may propose Amendments
to this Constitution; provided that each Amendment shall be embraced in a
separate bill, embodying the Article or Section, as the same will stand when
amended and passed by three fths of all the members elected to each of
the two Houses, by yeas and nays, to be entered on the Journals with the
proposed Amendment. The bill or bills proposing amendment or
amendments shall be published by order of the Governor, in at least two
newspapers, in each County, where so many may be published, and where
not more than one may be published, then in the newspaper, and in three
newspapers published in the City of Baltimore, once a week for four weeks
immediately preceding the next ensuing general election, at which the
proposed amendment or amendments shall be submitted, in a form to be
prescribed by the General Assembly, to the qualied voters of the State for
adoption or rejection. The votes cast for and against said proposed
amendment or amendments, severally, shall be returned to the Governor, in
the manner prescribed in other cases, and if it shall appear to the Governor
that a majority of the votes cast at said election on said amendment or
amendments, severally, were cast in favor thereof, the Governor shall, by
his proclamation, declare the said amendment or amendments having
received said majority of votes, to have been adopted by the people of
Maryland as part of the Constitution thereof, and thenceforth said
amendment or amendments shall be part of the said Constitution. When two
or more amendments shall be submitted in manner aforesaid, to the voters
of this State at the same election, they shall be so submitted as that each
amendment shall be voted on separately."

Constitution of Missouri (1945):

"Article XII.Amending the Constitution.
"Sec. 2(b).Submission of amendments proposed by general assembly or by
the initiative. All amendments proposed by the general assembly or by the
initiative shall be submitted to the electors for their approval or rejection by
ocial ballot title as may be provided by law, on a separate ballot without
party designation, at the next general election, or at a special election called
by the governor prior thereto, at which he may submit any of the
amendments. No such proposed amendment shall contain more than one
amended and revised article of this constitution, or one new article which
shall not contain more than one subject and matters properly connected
therewith. If possible, each proposed amendment shall be published once a
week for two consecutive weeks in two newspapers of different political faith
in each county, the last publication to be not more than thirty nor less than
fteen days next preceding the election. If there be but one newspaper in
any county, publication of four consecutive weeks shall be made. If a
majority of the votes cast thereon is in favor of any amendment, the same
shall take eect at the end of thirty days after the election. More than one
amendment at the same election shall be so submitted as to enable the
electors to vote on each amendment separately."

Article XV of the 1935 Constitution does not require a specic procedure, much less
a detailed procedure for submission or ratication. As heretofore stated, it does not
specify what kind of election at which the new Constitution shall be submitted; nor
does it designate the Commission on Elections to supervise the plebiscite. Neither
does it limit the ratication to the qualied electors as dened in Article V of the
1935 Constitution. Much less does it require the publication of the proposed
Constitution for any specic period before the plebiscite nor does it even insinuate
that the plebiscite should be supervised in accordance with the existing election law.
(2)As aforequoted, Article XV does not indicate the procedure for submission of the
proposed Constitution to the people for ratication. It does not make any reference
to the Commission on Elections as the body that shall supervise the plebiscite. And
Article XV could not make any reference to the Commission on Elections because
the original 1935 Constitution as ratied on May 14, 1935 by the people did not
contain Article X on the Commission on Elections, which article was included
therein pursuant to an amendment by the National Assembly proposed only about
ve (5) years later on April 11, 1940, ratied by the people on June 18, 1940 and
approved by the President of the United States on December 2, 1940 (see
Sumulong vs. Commission, 70 Phil. 703, 713, 715; Gonzales, Phil. Const. Law, 1966
ed., p. 13). So it cannot be said that the original framers of the 1935 Constitution as
ratied on May 14, 1935 intended that a body known as the Commission on
Elections should be the one to supervise the plebiscite, because the Commission on
Elections was not in existence then as it was created only by Commonwealth Act
No. 607 approved on August 22, 1940 and amended by Commonwealth Act No. 657
approved on June 21, 1941 (see Taada & Carreon, Political Law of the Philippines,
Vol. I, 1961 ed., pp. 475-476; Sumulong vs. Commission, 170 Phil. 703, 708-715;

73 Phil. 288, 290-300; Taada & Fernando, Constitution of the Philippines, 1953
ed., Vol. I, p. 5, Vol. II, pp. 11-19).
Because before August, 1940 the Commission on Elections was not yet in existence,
the former Department of Interior (now Department of Local Governments and
Community Development) supervised the plebiscites on the 1937 amendment on
woman's surage, the 1939 amendment to the Ordinance appended to the 1935
Constitution (Tydings- Kocialkowski Act of the U.S. Congress) and the three 1940
amendments on the establishment of a bicameral Congress, the re-election of the
President and the Vice-President, and the creation of the Commission on Elections
(ratied on June 18, 1940). The supervision of said plebiscites by the then
Department of Interior was not axiomatic, but by virtue of an express authorization
in Commonwealth Act Nos. 34, 49 and 517.
If the National Assembly then intended that the Commission on Elections should
also supervise the plebiscite for ratication of constitutional amendments or
revision, it should have likewise proposed the corresponding amendment to Article
XV by providing therein that the plebiscite on amendments shall be supervised by
the Commission on Elections.
3)If the framers of the 1935 Constitution and the people in ratifying the same on
May 14, 1935 wanted that only the qualied voters under Article V of the 1935
Constitution should participate in the referendum on any amendment or revision
thereof, they could have provided the same in 1935 or in the 1940 amendment by
just adding a few words to Article XV by changing the last phrase to "submitted for
ratication to the qualied electors as dened in Article V hereof," or some such
similar phrases.
Then again, the term "people" in Article XV cannot be understood to exclusively
refer to the qualied electors under Article V of the 1935 Constitution; because the
said term "people" as used in several provisions of the 1935 Constitution, does not
have a uniform meaning. Thus in the preamble, the term "Filipino people" refers to
all Filipino citizens of all ages of both sexes. In Section 1 of Article II on the
Declaration of Principles, the term "people" in whom sovereignty resides and from
whom all government authority emanates, can only refer also to Filipino citizens of
ail ages and of both sexes. But in Section 5 of the same Article II on social justice,
the term "people" comprehends not only Filipino citizens but also all aliens residing
in the country of all ages and of both sexes. Likewise, that is the same connotation
of the term "people" employed in Section 1(3) of Article III on the Bill of Rights
concerning searches and seizures.

When the 1935 Constitution wants to limit action or the exercise of a right to the
electorate, it does so expressly as in the case of the election of senators and
congressmen. Section 2, Article VI expressly provides that the senators "shall be
chosen at large by the qualied electors of the Philippines as may be provided by
law." Section 5 of the same Article VI specically provides that congressmen shall
"be elected by the qualied electors." The only provision that seems to sustain the

theory of petitioners that the term "people" in Article XV should refer to the
qualied electors as dened in Article V of the 1935 Constitution is the provision
that the President and Vice-President shall be elected "by direct vote of the people."
(Sec. 2 of Art. VII of the 1935 Constitution). But this alone cannot be conclusive as
to such construction; because of the explicit provisions of Sections 2 and 5 of Article
VI, which specically prescribes that the senators and congressmen shall be elected
by the qualified electors.
As aforesaid, most of the constitutions of the various states of the United States,
specically delineate in detail the procedure of ratication of amendments to or
revision of state Constitutions and expressly require ratication by qualied
electors, not by the generic term "people".
The proposal submitted to the Ozamis Committee on the Amending Process of the
1934-35 Constitutional Convention, specied that the amendment shall be
submitted to qualied electors for ratication. This proposal was not accepted,
indicating that the 1934-35 Constitutional Convention did not intend to limit the
term "people" in Article XV of the 1935 Constitution to qualied electors only. As
above demonstrated, the 1934-35 Constitutional Convention limits the use of the
term "qualied electors" to elections of public ocials. It did not want to tie the
hands of succeeding or future constitutional conventions as to who should ratify the
proposed amendment or revision.
(4)It is not exactly correct to opine that Article XV of the 1935 Constitution on
constitutional amendment contemplates the automatic applicability of election laws
to plebiscites on proposed constitutional amendments or revision.
The very phraseology of the specic laws enacted by the National Assembly and
later by Congress, indicates that there is need of a statute expressly authorizing the
application of the election laws to plebiscites of this nature. Thus, Com. Act No. 34
on the woman's surage amendment enacted on September 30, 1936, consists of
12 sections and, aside from providing that "there shall be held a plebiscite on Friday,
April 30, 1937, on the question of woman's surage . . . and that said amendment
shall be published in the Ocial Gazette in English and Spanish for three
consecutive issues at least fteen (15) days prior to said election, . . . and shall be
posted in a conspicuous place in its municipal and provincial oce building and in its
polling place not later than April 22, 1937" (Sec. 12, Com. Act No. 34), species that
the provisions of the Election Law regarding the holding of a special election, insofar
as said provisions are not in conict with it, should apply to the said plebiscite (Sec.
3, Com. Act No. 34); and that the votes cast according to the returns of the board of
inspectors shall be counted by the National Assembly (Sec. 10, Com. Act No. 34).
The election laws then in force before 1938 were found in Sections 392-483 of the
Revised Administrative Code.
Sec. 1 of Com. Act No. 357, the previous Election Code enacted on August 22, 1938,
makes it expressly applicable to plebiscites. Yet the subsequent laws, namely, Com.
Act Nos. 492 and 517 and Rep. Act No. ?3 calling for the plebiscite on the
constitutional amendments in 1939, 1940 and 1946, including the amendment

creating the Commission on Elections, specically provided that the provisions of

the existing election law shall apply to such plebiscites insofar as they are not
inconsistent with the aforesaid Com. Act Nos. 492 and 517, as well as Rep. Act No.
73. Thus
Commonwealth Act No. 492, enacted on September 19, 1939, calling for a
plebiscite on the proposed amendments to the Constitution adopted by the National
Assembly on September 15, 1939, consists of 8 sections and provides that the
proposed amendments to the Constitution adopted in Resolution No. 39 on
September 15, 1939 "shall be submitted to the Filipino people for approval or
disapproval at a general election to be held throughout the Philippines on Tuesday,
October 24, 1939"; that the amendments to said Constitution proposed in "Res. No.
38, adopted on the same date, shall be submitted at the following election of local
ocials," (Sec. 1, Com. Act No. 492); that the said amendments shall be published
in English and Spanish in three consecutive issues of the Official Gazette at least ten
(10) days prior to the election; that copies thereof shall be posted not later than
October 20, 1939 (Sec. 2, Com. Act No. 492); that the election shall be conducted
according to the provisions of the Election Code insofar as the same may be
applicable; that within thirty (30) days after the election, the Speaker of the
National Assembly shall request the President to call a special session of the
Assembly for the purpose of canvassing the returns and certify the results thereof
(Sec. 6, Com. Act No. 492).
Commonwealth Act No. 617, consisting of 11 sections, was approved on April
25,1940 and provided, among others: that the plebiscite on the constitutional
amendments providing for a bicameral Congress, re- election of the President and
Vice-President, and the creation of a Commission on Elections shall be held at a
general election on June 18, 1940 (Sec. 1); that said amendments shall be
published in three consecutive issues of the Ocial Gazette in English and Spanish
at least 20 days prior to the election and posted in every local government oce
building and polling place not later than May 18, 1940 (Sec. 2); that the election
shall be conducted in conformity with the Election Code insofar as the same may be
applicable (Sec. 3); that copies of the returns shall be forwarded to the Secretary of
National Assembly and the Secretary of Interior (Sec. 7); and that the National
Assembly shall canvass the returns and certify the results at a special session to be
called by the President (Sec. 8).
Republic Act No. 73 approved on October 21, 1946 calling for a plebiscite on the
parity amendment consists of 8 sections and provides that the Amendment "shall be
submitted to the people, for approval or disapproval, at a general election which
shall be held on March 11, 1947, in accordance with the provisions of this Act" (Sec.
1, R.A. No. 73); that the said amendment shall be published in English and Spanish
in three consecutive issues of the Ocial Gazette at least 20 days prior to the
election; that copies of the same shall be posted in a conspicuous place and in every
polling place not later than February 11, 1947 (Section 2, R.A. No. 73); that the
provisions of Com. Act No. 357 (Election Code) and Com. Act No. 657 creating the
Commission on Elections, shall apply to the election insofar as they are not
inconsistent with this Act (Sec. 3, R.A. No. 73); and that within 30 days after the

election, the Senate and House of Representatives shall hold a joint session to
canvass the returns and certify the results thereof (Section 6, R.A. No. 73).
From the foregoing provisions, it is patent that Article XV of the 1935 Constitution
does not contemplate nor envision the automatic application of the election law;
and even at that, not all the provisions of the election law were made applicable
because the various laws aforecited contain several provisions which are
inconsistent with the provisions of the Revised Election Code (Com. Act No. 357).
Moreover, it should be noted that the period for the publication of the copies of the
proposed amendments was about 10 days, 15 days or 20 days, and for posting at
least 4 days, & days or 30 days.
Republic Acts Nos. 180 and 6388 likewise expressly provide that the Election Code
shall apply to plebiscites (Sec. 2, R.A. No. 180, as amended, and Section 2, Rep. Act
No. 6388).
If the Election Code ipso facto applies to plebiscites under Article XV of the 1935
Constitution, there would be no need for Congress to expressly provide therefor in
the election laws enacted after the inauguration of the Commonwealth government
under the 1935 Constitution.
(5)Article XV of the 1935 Constitution does not specify who can vote and how they
shall vote. Unlike the various State Constitutions of the American Union (with few
exceptions), Article XV does not state that only qualied electors can vote in the
plebiscite. As above-intimated, most of the Constitutions of the various states of the
United States provide for very detailed amending process and specify that only
qualified electors can vote at such plebiscite or election.
Congress itself, in enacting Republic Act No. 3590, otherwise known as the Barrio
Charter, which was approved on June 17, 1967 and superseded Republic Act No.
2370, expanded the membership of the barrio assembly to include citizens who are
at least 18 years of age, whether literate or not, provided they are also residents of
the barrio for at least 6 months (Sec. 4, R.A. No. 3590).
"Sec. 4.The barrio assembly. The barrio assembly shall consist of all
persons who are residents of the barrio for at least six months, eighteen
years of age or over, citizens of the Republic of the Philippines and who are
duly registered in the list of barrio assembly members kept by the Barrio
Secretary.
"The barrio assembly shall meet at least once a year to hear the annual
report of the barrio counsel concerning the activities and nances of the
barrio.
"It shall meet also at the case of the barrio council or upon written petition of
at least One-Tenth of the members of the barrio assembly.

"No meeting of the barrio assembly shall take place unless notice is given

one week prior to the meeting except in matters involving public safety or
security in which case notice within a reasonable time shall be sucient. The
barrio captain, or in his absence, the councilman acting as barrio captain, or
any assembly member selected during the meeting, shall act as presiding
ocer at all meetings of the barrio assembly. The barrio secretary or in his
absence, any member designated by the presiding ocer to act as
secretary shall discharge the duties of secretary of the barrio assembly.
"For the purpose of conducting business and taking any ocial action in the
barrio assembly, It is necessary that at least one-fth of the members of the
barrio assembly be present to constitute a quorum. All actions shall require
a majority vote of these present at the meeting there being a quorum.
"Sec. 5.Powers of the barrio assembly. The powers of the barrio
assembly shall be as follows:
"a.To recommend to the barrio council the adoption of
measures for the welfare of the barrio;
"b.To decide on the holding of a plebiscite as provided for in
Section 6 of this Act;
"c.To act on budgetary and supplemental appropriations and
special tax ordinances submitted for its approval by the barrio council;
and
"d.To bear the annual report council concerning the activities
and finances of the assembly.
"Sec. 6.Plebiscite. A plebiscite may be held in the barrio when authorized
by a majority vote of the members present in the barrio assembly, there
being a quorum, or when called by at least four members of the barrio
council; Provided, however, That no plebiscite shall be held until after thirty
days from its approval by either body, and such plebiscite has been given
the widest publicity in the barrio, stating the date, time, and place thereof,
the questions or issues to be decided, action to be taken by the voters, and
such other information relevant to the holding of the plebiscite.
"All duly registered barrio assembly members qualied to vote may vote in
the plebiscite. Voting procedures may be made either in writing as in regular
election, and/or declaration by the voters to the board of election tellers. The
board of election tellers shall be the same board envisioned by section 8,
paragraph 2 of this Act, in case of vacancies in this body, the barrio council
may fill the same.
"A plebiscite may be called to decide on the recall of any member of the
barrio council. A plebiscite shall be called to approve any budgetary,
supplemental appropriations or special tax ordinances.
"For taking action on any of the above enumerated measures, majority vote
of all the barrio assembly members registered in the list of barrio secretary

is necessary.
xxx xxx xxx
"Sec. 10.Qualications of voters and candidates. Every citizen of the
Philippines, twenty-one years of age or over, able to read and write, who has
been a resident of the barrio during the six months immediately preceding
the election, duly registered in the list of voters kept by the barrio secretary,
who is not otherwise disqualied, may vote or be a candidate in the barrio
elections.
"The following persons shall not be qualified to vote:
"a.Any person who has been sentenced by nal judgment to
suer one year or more of imprisonment, within two years after
service of his sentence;
"b.Any person who has violated his allegiance to the Republic of
the Philippines; and
"c.Insane or feeble-minded persons."

All these barrio assembly members, who are at least 18 years of age, although
illiterate, may vote at the plebiscite on the recall of any member of the barrio
council or on any budgetary, supplemental appropriation, or special tax ordinances,
a valid action on which requires "a majority vote of all of the barrio assembly
members registered in the list of the barrio secretary" (par. 5, Sec. 6, R.A. No.
3590). Such plebiscite may be authorized by a majority vote of the members
present in the barrio assembly, there being a quorum (par. 1, Sec. 6).
However, in the case of election of barrio ocials, only Filipino citizens, who are at
least 21 years of age, able to read and write, residents of the barrio during the 6
months immediately preceding the election and duly registered in the list of voters
kept by the barrio secretary, not otherwise disqualied, may vote (Sec. 10, R.A. No.
3590).
Paragraph 2 of Section 6 likewise authorizes open voting as it provides that "voting
procedures may be made xxx either in writing as in regular elections, and/or
declaration by the voters to the board of election tellers."
That said paragraph 2 of Section 6 provides that "all duly registered barrio assembly
members qualified to vote may vote in the plebiscite," cannot sustain the position of
petitioners in G.R. No. L- 36165 that only those who are 21 years of age or above
and who possess all other qualications of a voter under Section 10 of R.A. No.
3590, can vote on the plebiscites referred to in Section 6; because paragraph 3 of
Section 6 does not expressly limit the voting to those with the qualications under
Section 10 as said Section 6 does not distinguish between those who are 21 or
above on the one hand and those 18 or above but below 21 on the other, and
whether literate or not, to constitute a quorum of the barrio assembly.

Consequently, on questions submitted for plebiscite, all the registered members of

the barrio assembly can vote as long as they are 18 years of age or above; and that
only those who are 21 years of age or over and can read and write, can vote in the
elections of barrio officials.
Otherwise there was no sense in extending membership in the barrio assembly to
those who are at least 18 years of age, whether literate or not Republic Act No.
3590 could simply have restated Section 4 of Republic Act No. 2370, the old Barrio
Charter, which provided that only those who are 21 and above can be members of
the barrio assembly.
Counsels Salonga and Taada as well as all the petitioners in L- 36165 and two of
the petitioners in L-36164 participated in the enactment of Republic Act No. 3590
and should have known the intendment of Congress in expanding the membership
of the barrio assembly to include all those 18 years of age and above, whether
literate or not.
If Congress in the exercise of its ordinary legislative power, not as a constituent
assembly, can include 18-years old as qualied electors for barrio plebiscites, this
prerogative can also be exercised by the Chief Executive as delegate of the
Constitutional Convention in regard to the plebiscite on the 1973 Constitution.
As heretofore stated, the statement by the President in Presidential Proclamation
No. 1102 that the 1973 Constitution was overwhelmingly ratied by the people
through the Citizens' Assemblies in a referendum conducted from January 10 to 15,
1973, should be accorded the presumption of correctness; because the same was
based on the certication by the Secretary of the Department of Local Government
and Community Development who tabulated the results of the referendum all over
the country. The accuracy of such tabulation and certication by the said
Department Secretary should likewise be presumed; because it was done in the
regular performance of his ocial functions aside from the fact that the act of the
Department Secretary, as an alter ego of the President, is presumptively the act of
the President himself unless the latter disapproves or reprobates the same (Villena
vs. Secretary of Interior, 67 Phil. 451). The truth of the certication by the
Department Secretary and the Chief Executive on the results of the referendum, is
further strengthened by the adavits and certications of Governor Isidro
Rodriguez of Rizal, Mayor Norberto S. Amoranto of Quezon City and Councilor
Eduardo T. Paredes of Quezon City.
The procedure for the ratication of the 1937 amendment on woman surage, the
1939 amendment to the ordinance appended to the 1935 Constitution, the 1940
amendments establishing the bicameral confess, creating the Commission on
Elections and providing for two consecutive terms for the President, and the 1947
parity amendment, cannot be invoked; because those amendments were proposed
by the National Assembly as expressly authorized by Article V of the 1935
Constitution respecting woman surage and as a constituent assembly in all the
other amendments aforementioned and therefore as such, confess had also the
authority to prescribe the procedure for the submission of the proposed

amendments to the 1935 Constitution.

In the cases at bar, the 1973 Constitution was proposed by an independent
Constitutional Convention, which as heretofore discussed, has the equal power to
prescribe the modality for the submission of the 1973 Constitution to the people for
ratification or delegate the same to the President of the Republic.
The certication of Governor Isidro Rodriguez of Rizal and Mayor Norberto Amoranto
could be utilized as the basis for the extrapolation of the Citizens' Assemblies in all
the other provinces, cities and municipalities in all the other provinces, cities and
municipalities, and the armative votes in the Citizens' Assemblies resulting from
such extrapolation would still constitute a majority of the total votes cast in favor of
the 1973 Constitution.
As claimed by petitioners in L-36165, against the certication of the Department of
Local Government and Community Development that in Rizal there were
1,126,000 Yes votes and 100,310 No votes, the certication of Governor Isidro
Rodriguez of Rizal, shows only 614,157 Yes votes as against 292,530 No votes. In
Cavite province, there were 249,882 Yes votes against 12,269 No votes as disclosed
in Annex 1-A of respondents' Compliance (the certication by the Department of
Local Government and Community Development), while the alleged certication of
Governor Lino Bocalan of Cavite shows only 126,163 Yes votes and 5,577 No votes.
If such a ratio is extended by way of extrapolation to the other provinces, cities and
towns of the country, the result would still be an overwhelming vote in favor of the
1973 Constitution.

The alleged certication by Governor Lino Bocalan of Cavite, is not true; because in
his duly acknowledged certication dated March 16, 1973, he states that since the
declaration of martial law and up to the present time, he has been under house
arrest in his residence in Urdaneta Village, Makati, Rizal; that he never participated
in the conduct of the Citizens' Assemblies on January 10 to 15, 1973 in the province
of Cavite; that the acting chairman and coordinator of the Citizens' Assemblies at
that time was Vice-Governor Dominador Camerino; and that he was shown a letter
for his signature during the conduct of the Citizens' Assemblies, which he did not
sign but which he referred to Vice-Governor Camerino (Annex 1-Rejoinder of the
Sol. Gen. dated March 20, 1973).
Mayor Pablo Cuneta likewise executed an adavit dated March 16, 1973 stating
that on January 15, 1973, he caused the preparation of a letter addressed to
Secretary Jose Roo of the Department of Local Government and Community
Development showing the results of the referendum in Pasay City; that on the
same day, there were still many Citizens' Assemblies holding referendum in Pasay
City, for which reason he did not send the aforesaid letter pending submittal of the
other results from the said Citizens' Assemblies; and that in the afternoon of
January 15, 1973, he indorsed the complete certicate of results on the referendum
in Pasay City to the Oce of the President (Annex 5-Rejoinder of Sol. Gen. dated
March 20, 1973).

Pablo F. Samonte, Assistant City Treasurer and Ocer in Charge of Pasay City also
issued an adavit dated March 15, 1973 stating that a certain Atty. Delia Sutton of
the Salonga Law Oce asked him for the results of the referendum; that he
informed her that he had in his possession unsigned copies of such results which
may not be considered ocial as they had then no knowledge whether the original
thereof had been signed by the mayor; and that in spite of his advice that said
unsigned copies were not ocial, she requested him if she could give her the
unocial copies thereof, which he gave in good faith (Annex C-Rejoinder to the Sol.
Gen.).
There were 118,010 Yes votes as against 5,588 No votes in the Citizens' Assemblies
of Quezon city (Annex V to Petitioners' Notes in L-36165). The fact that a certain
Mrs. Remedio Gutierrez, wife of alleged barrio treasurer Faustino Gutierrez, of barrio
South Triangle, Quezon City, states that "as far as we know, there has been no
Citizens' Assembly meeting in our Area, particularly in January of this year," does
not necessarily mean that there was no such meeting in said barrio; for she may not
have been notied thereof and as a result she was not able to attend said meeting.
Much less can it be a basis for the claim that there was no meeting at all in the
other barrios of Quezon City. The barrio captain or the secretary of the barrio
assembly could have been a credible witness.
Councilor Eduardo T. Paredes, chairman of the Secretariat of Quezon City
Ratication and Coordinating Council, certied on March 12, 1973 that as such
chairman he was in charge of the compilation and tabulation of the results of the
referendum among the Citizens' Assemblies in Quezon City based on the results
submitted to the Secretariat by the dierent Citizens' Assemblies; but many results
of the referendum were submitted direct to the national agencies having to do with
such activity and all of which he has no knowledge, participation and control (Annex
4 Rejoinder of the Sol. Gen.).
Governor Isidro Rodriguez of Rizal issued a certication dated March 16, 1973 that
he prepared a letter to the President dated January 15, 1973 informing him of the
results of the referendum in Rizal, in compliance with the instruction of the National
Secretariat to submit such letter 2 or 3 days from January 10 to show the trend of
voting in the Citizens' Assemblies; that the gures 614,157 and 292,530 mentioned
in said letter were based on the certicates of results in his possession as of January
14, 1973, which results were made the basis of the computation of the percentage
of voting trend in the province; that his letter was never intended to show the nal
or complete result in the referendum in the province as said referendum was then
still going on from January 14-17, 1973, for which reason the said letter merely
stated that it was only a "summary result; and that after January 15, 1973, he sent
to the National Secretariat all the certicates of results in 26 municipalities of Rizal
for final tabulation (Annex 3-Rejoinder of the Sol. Gen.; italics supplied).
Lydia M. Encarnacion, acting chief of the Records Section, Department of Local
Government and Community Development, issued a certicate dated March 16,
1973 that she was shown xerox copies of unsigned letters allegedly coming from
Governor Lino Bocalan dated January 15, 1973 and marked "Rejoinder Annex

Cavite" addressed to the President of the Philippines through the Secretary of the
Department of Local Government and Community Development and another
unsigned letter reportedly from Mayor Pablo Cuneta dated January 15, 1973 and
marked "Rejoinder Annex Pasay City" addressed to the Secretary of the Department
of Local Government and Community Development; that both xerox copies of the
unsigned letters contain gures showing the results of the referendum of the
Citizens' Assemblies in those areas; and that the said letters were not received by
her oce and that her records do not show any such documents received by her
office (Annex 2-Rejoinder of the Sol. Gen.).
Thus it would seem that petitioners in L-36165 have attempted to deceive this
Court by representing said unsigned letters and/or certicates as duly signed and/or
containing the complete returns of the voting in the Citizens' Assemblies.
The observation We made with respect to the discrepancy between the number of
Yes votes and No votes contained in the summary report of Governor Rodriguez of
Rizal as well as those contained in the alleged report of Governor Lino Bocalan of
Cavite who repudiated the same as not having been signed by him for he was then
under house arrest, on the one hand, and the number of votes certied by the
Department of Local Government and Community Development, on the other, to
the eect that even assuming the correctness of the gures insisted on by counsel
for petitioners in L-36165, if the same were extrapolated and applied to the other
provinces and cities of the country, the Yes votes would still be overwhelmingly
greater than the No votes, applies equally to the alleged discrepancy between the
gures contained in the certication of the Secretary of the Department of Local
Government and Community Development and the gures furnished to counsel for
petitioners in L-36165 concerning the referendum in Camarines Sur, Bataan and
Negros Occidental.
The fact that the referendum in the municipality of Pasacao, Camarines Sur, shows
that there were more votes in favor of a plebiscite to be held later than those
against, only serves to emphasize that there was freedom of voting among the
members of the Citizens' Assemblies all over the country during the referendum
from January 10 to 15, 1973 (Annex-6 Cam. Sur to Rejoinder of Petitioners in L36165). If there was no such freedom of choice, those who wanted a plebiscite later
would not outnumber those against holding such plebiscite.
The letter of Governor Felix O. Alfelor, Sr. dated January 14, 1973 conrms the
"strong manifestation of approval of the new Constitution by almost 97% by the
members of the Citizens' Assemblies in Camarines Sur" (Annex-Camarines Sur to
Rejoinder of Petitioners in L-36165).
The report of Governor Efren B. Pascual of Bataan shows that the members of the
Citizens' Assemblies voted overwhelmingly in favor of the new Constitution despite
the fact that the second set of questions including the question "Do you approve of
the new Constitution?" was received only on January 10. Provincial Governor
Pascual stated that the "orderly conduct and favorable results of the referendum"
were due not only to the coordinated eorts and cooperation of all teachers and

government employees in the area but also to the enthusiastic participation by the
people, showing "their preference and readiness to accept this new method of
government to people consultation in shaping up government policies." (AnnexBataan to Rejoinder of Petitioners in L-36165).
As heretofore stated, it is not necessary that voters ratifying the new Constitution
are registered in the book of voters; it is enough that they are electors voting on the
new Constitution (Bott vs. Wurts, 40 A 740 [1898]; 43 A 744, 881 [1899]; 45 LRA
251). The fact that the number of actual voters in the referendum in certain
localities may exceed the number of voters actually registered for the 1971
elections, can only mean that the excess represents the qualied voters who are not
yet registered including those who are at least 15 years of age and the illiterates.
Although ex-convicts may have voted also in the referendum, some of them might
have been granted absolute pardon or were sentenced to less than one year
imprisonment to qualify them to vote (Sec. 201, 1971 Rev. Election Code). At any
rate, the ex-convicts constitute a negligible number, discounting which would not
tilt the scale in favor of the negative votes.
Similarly, the fact that Mayor Marcial F. Samson of Caloocan City, who belongs to
the Liberal Party, stated in his letter dated March 13, 1973 that he does not "feel
authorized by the proper authorities to conrm or deny the data" concerning the
number of participants, the Yes votes and No votes in the referendum on the new
Constitution among the members of the Citizens' Assemblies in Caloocan City, does
not necessarily give rise to the inference that Mayor Samson of Caloocan City is
being intimidated, having been recently released from detention; because in the
same letter of Mayor Samson, he suggested to counsel for petitioners in L-36165
that he can secure "the true and legitimate results of the referendum" from the
Oce of the President (Annex Caloocan-B to Rejoinder of Petitioners in L-36165).
Why did not learned and eminent counsel heed such suggestion?

Counsel for petitioners in L-36165, to sustain their position, relies heavily on the
computation of the estimated turnover in the Citizens' Assemblies referendum on
January 10 to 15, 1973 by a certain Professor Benjamin R. Salonga, of the Mapua
Institute of Technology, ostensibly a close relative of former Senator Jovito R.
Salonga, eminent counsel for petitioners in L-36165 (Annex M-as amended, to
Consolidated Rejoinder of petitioners in L-36165 to the Notes of Arguments and
Memorandum of respondents). Professor Salonga is not a qualied statistician,
which all the more impairs his credibility. Director Tito A. Mijares of the Bureau of
Census and Statistics, in his letter dated March 16, 1973 addressed to the Secretary
of the Department of Local Government and Community Development, refutes the
said computation of Professor Benjamin R. Salonga, thus:
"1)I do not quite understand why (Problem I) all qualied registered voters
and the 15-20-year-old youths (1972) will have to be estimated in order to
give a 101.9% estimate of the percentage participation of the '15-20 year old
plus total number of qualied voters' which does not deem to answer the
problem. This computation apparently fails to account for some 5.6 million

persons '21 years old and over' who were not registered voters (COMELEC),
but who might be qualified to participate at the Citizen's Assembly.
"2)The ocial population projection of this oce (medium assumption) for
'15 year olds and over' as of January 1, 1973 is 22.506 million. If total
number of participants at the Citizens' Assembly Referendum held on
January 10-15, 1973 was 16.702 million, participation rate will therefore be
the ratio of the latter figure to the former which gives 74.2%.
"3)I cannot also understand c-2 'Solution to Problem 11.' The
'dierence or implied number of 15-20 year olds' of 5,039,906 would
represent really not only all 15 year olds and over who participated at
the Citizens' Assembly but might not have been registered voters at the
time, assuming that all the 11,661,909 registered voted at the Citizens'
Assembly. Hence, the 'estimate percentage participation of 15-20 years
olds' of 105.6% does not seem to provide any meaningful information.
"To obtain the participation rate of '15-20 years old' one must
divide the number in this age group, which was estimated to be 4.721
million as of January 1, 1973 by the population of '15 years old and
over' for the same period which was estimated to be 22.506 million,
giving 21.0%.
"In Problem III, it should be observed that registered voters also
include names of voters who are already dead. It cannot therefore be
assumed that all of them participated at the Citizens' Assembly. It can
therefore be inferred that 'a total number of persons 15 and over
unqualied/disqualied to vote' will be more than 10,548,197 and hence
the 'dierence or implied number of registered voters that participated'
will be less than 6,153,618.
"I have reservations on whether an 'appropriate number of
qualified voters that supposedly voted' could be meaningfully estimated.
"5)The last remark will therefore make the ratio: (a) [Solution to
Problem] more than 1.71 and that for (b), accordingly, will also be less
than 36.8%." (Annex F Rejoinder).

From the foregoing analysis of the Director of Census and Statistics as of January
21, 1973, the ocial population projection for 15-year olds and over is 22,506,000.
If 16,702,000 voted in the referendum, the participation ratio would be 74.2% of
22,506,000.
If the registered electors as of the election of November 8, 1971 numbered
11,661,909, the dierence between 16,702,000 who participated in the
referendum and the registered electors of 11,661,909 for the November 8, 1971
elections, is 5,040,091, which may include not only the 15-year olds and above but
below 21 but also the qualied electors who were not registered before the
November 8, 1971 elections as well as illiterates who are 15 years old and above
but below 21.

Moreover, in the last Presidential election in November, 1969, We found that the
incumbent President obtained over 5,000,000 votes as against about 3,000,000
votes for his rival LP Senator Sergio Osmea, Jr., garnering a majority of from about
896,498 to 1,436,118 (Osmea, Jr. vs. Marcos, Presidential Election Contest No. 3,
Jan. 8, 1973).
The petitioners in all the cases at bar cannot state with justication that those who
voted for the incumbent President in 1969 did not vote in favor of the 1973
Constitution during the referendum from January 10 to 15, 1973. It should also be
stressed that many of the partisans of the President in the 1969 Presidential
elections, have several members in their families and relatives who are qualied to
participate in the referendum because they are 15 years or above including
illiterates, which fact should necessarily augment the number of votes who voted
for the 1973 Constitution.
(6)It is also urged that martial law being the rule of force, is necessarily inconsistent
with freedom of choice, because the people fear to disagree with the President as
Commander-in-Chief of the Armed Forces of the Philippines and therefore cannot
voice views opposite to or critical of the position of the President on the 1973
Constitution and on the mode of its ratification.
It is also claimed or urged that there can be no free choice during martial law which
inevitably generates fear in the individual. Even without martial law, the penal, civil
or administrative sanction provided for the violation of the law ordinarily engenders
fear in the individual which fear persuades the individual to comply with or obey the
law. But before martial law was proclaimed, many individuals did not fear such
sanctions of the law because of lack of eective or equal enforcement or
implementation thereof in brief, compartmentalized justice and extraneous
pressures and inuences frustrated the rm and just enforcement of the laws. The
fear that is generated by martial law is merely the fear of immediate execution and
swift enforcement of the law and therefore immediate iniction of the punishment
or sanction prescribed by the law whenever it is transgressed during the period of
martial law. This is not the fear that aects the voters' freedom of choice or
freedom to vote for or against the 1973 Constitution. Those who cringe in fear are
the criminals or the law violators. Surely, petitioners do not come under such
category.
(7)Petitioners likewise claim that open voting by viva voce or raising of hands
violates the secrecy of the ballot as secured by the election laws. But the 1935
Constitution does not require secret voting. We search in vain for such guarantee or
prescription in said organic law. The Commission on Elections under the 1940
Amendment, embodied as Article X is merely mandated to insure "free, orderly and
honest election." Congress, under its plenary law-making authority, could have
validly prescribed in the election law open voting in the election of public ocers,
without trenching upon the Constitution. Any objection to such a statute concerns
its wisdom or propriety, not its legality or constitutionality. Secret balloting was
demanded by partisan strife in elections for elective ocials. Partisanship based on
party or personal loyalties does not generally obtain in a plebiscite on proposed

constitutional amendments or on a new Constitution. We have seen even before

and during martial law that voting in meetings of government agencies or private
organizations is usually done openly. This is specially true in sessions of Congress,
provincial boards, city councils, municipal boards and barrio councils when voting on
national or local issues, not on personalities.
Then again, open voting was not a universal phenomenon in the Citizens'
Assemblies. It might have been true in certain areas, but that does not necessarily
mean that it was done throughout the country.
The recent example of an open voting is the last election on March 3, 1973 of the
National Press Club ocers who were elected by acclamation presided over by its
former president, petitioner Eduardo Monteclaro in L-36236 (see Bulletin Today, p.
8, March 3, 1973 issue). There can be no more hardboiled group of persons than
newspapermen, who cannot say that voting among them by acclamation was
characterized by fear among the members of the National Press Club.
Moreover, petitioners would not be willing to arm that all the members of the
citizenry of this country are against the new Constitution. They will not deny that
there are those who favor the same, even among the 400,000 teachers among
whom ocers of the Department of Education campaigned for the ratication of the
new Constitution.
Not one of the petitioners can say that the common man farmer, laborer,
sherman, lowly employee, jeepney driver, taxi driver, bus driver, pedestrian,
salesman, or salesgirl does not want the new Constitution, or the reforms
provided for therein.
(8)Petitioners likewise claim that there was no sucient publicity given to the new
Constitution. This is quite inaccurate; because even before the election in
November, 1970 of delegates to the Constitutional Convention, the proposed
reforms were already discussed in various forums and through the press as well as
other media of information. Then after the Constitutional Convention convened in
June, 1971, specic reforms advanced by the delegates were discussed both in
committee hearings as well as in the tri-media the press, radio and television.
Printed materials on the proposed reforms were circulated by their proponents.
From June, 1971 to November 29, 1972, reforms were openly discussed and
debated except for a few days after the proclamation of martial law on September
21, 1972. From the time the Constitutional Convention reconvened in October,
1972 until January 7, 1973, the provisions of the new Constitution were debated
and discussed in forums sponsored by private organizations and universities and
debated over the radio and on television. The Philippines is a literate country,
second only to Japan in the Far East, and more literate perhaps than many of the
mid-western and southern states of the American Union and Spain. Many residents
in about 1,500 towns and 33,000 barrios of the country have radios. Even the
illiterates listened to the radio broadcasts on and discussed the provisions of the
1973 Constitution.

As reported by the eminent and widely read columnist Teodoro Valencia in his
column in Bulletin Today, March 4, 1973 issue, "Otto Lang, Hollywood producer
director (Tora, Tora, Tora) went around the country doing a 30-minute documentary
on the Philippines for American television and stated that what impressed him most
in his travel throughout the country was the general acceptance of the New Society
by the people which he saw in his 6-week travel from Aparri to Jolo."
The report of Frank Valeo (Bulletin Today, March 3 and 4, 1973 and Daily Express,
March 3, and Sunday Express, March 4), Secretary of the United States Senate, who
conducted a personal survey of the country as delegate of Senator Mike Manseld,
Chairman, Committee on US-Philippine relations, states:
"Martial law has paved the way for a re-ordering of the basic
social structure of the Philippines. President Marcos has been prompt
and sure-footed in using the power of presidential decree under martial
law for this Purpose. He has zeroed in on areas which have been widely
recognized as prime sources of the nation's diculties land tenure,
ocial corruption, tax evasion and abuse of oligarchic economic power.
Clearly, he knows the targets. What is not yet certain is how accurate
have been his shots. Nevertheless, there is marked public support for
his leadership and tangible alternatives have not been forthcoming. That
would suggest that he may not be striking too far from the mark.
"The United States business community in Manila seems to have
been reassured by recent developments . . . (Italics supplied.)

Petitioners cannot safely assume that all the peaceful citizens of the country, who
constitute the majority of the population, do not like the reforms stipulated in the
new Constitution, as well as the decrees, orders and circulars issued to implement
the same. It should be recalled, as herein before stated, that all these reforms were
the subject of discussion both in the committee hearings and on the oor of the
Constitutional Convention, as well as in public forums sponsored by concerned
citizens or civic organizations at which Con-Con delegates as well as other
knowledgeable personages expounded their views thereon and in all the media of
information before the proclamation of martial law on September 21, 1972. This is
the reason why the Constitutional Convention, after spending close to P30 million
during the period from June 1, 1971 to November 29, 1972, found it expedient to
accelerate their proceedings in November, 1972 because all views that could
possibly be said on the proposed provisions of the 1973 Constitution were already
expressed and circulated. The 1973 Constitution may contain some unwise
provisions. But this objection to such unwise or vague provisions, as heretofore
stated, refers to the wisdom of the aforesaid provisions, which issue is not for this
Court to decide; otherwise We will be substituting Our judgment for the judgment
of the Constitutional Convention and in effect acting as a constituent assembly.

VI
PRESIDENT AS COMMANDER IN CHIEF EXERCISES LEGISLATIVE POWERS
DURING MARTIAL LAW.

The position of the respondent public ocers that under martial law, the President
as Commander-in-Chief is vested with legislative powers, is sustained by the ruling
in the 1949 case of Kuroda vs. Jalandoni, et al. (83 Phil. 171, 177-178), which
reiterates the 1945 case of Yamashita vs. Styer (75 Phil. 563, 571-72). The trial of
General Kuroda was after the surrender of Japan on October 2, 1945 (23 Encyc. Brit.
1969 ed., p. 799) and hence no more martial law in the Philippines.
". . . Consequently, in the promulgation and enforcement of
Executive Order No. 68, the President of the Philippines has acted in
conformity with the generally accepted principles and policies of
international law which are part of our Constitution.
"The promulgation of said executive order is an exercise by the
President of his powers as Commander in Chief of all our armed forces,
as upheld by this Court in the case of Yamashita vs. Styer (L-129, 42
Off. Gaz., 664) when we said
" 'War is not ended simply because hostilities have ceased.
After cessation of armed hostilities, incidents of war may remain
pending which should be disposed of as in time of war. 'An
important incident to a conduct of war is the adoption of
measures by the military command not only to repel and defeat
the enemies but to seize and subject to disciplinary measures
those enemies who in their attempt to thwart or impede our
military eort have violated the law of war. ' (Ex parte Quirin, 317
U.S., 1; 63 Sup. Ct., 2.) Indeed, the power to create a military
commission for the trial and punishment of war criminals is an
aspect of waging war. And, in the language of a writer, a military
commission 'has jurisdiction so long as a technical state of war
continues. This includes the period of an armistice, or military
occupation, up to the eective date of a treaty of peace, and may
extend beyond, by treaty agreement.' (Cowles, Trial of War
Criminals by Military Tribunals, American Bar Association Journal,
June, 1944).'
''Consequently, the President as Commander in Chief is fully
empowered to consummate this unnished aspect of war, namely, the
trial and punishment of war criminals, through the issuance and
enforcement of Executive Order No. 68." (83 Phil. 177-178; italics
supplied).

Chief Justice Stone of the United States Supreme Court likewise appears to
subscribe to this view, when, in his concurring opinion in Duncan vs. Kahanamoku
(327 U.S. 304 [1946]), he dened martial law as "the exercise of the power which
resides in the executive branch of the government to preserve order and insure the
public safety in times of emergency, when other branches of the government are
unable to function, or their functioning would itself threaten the public safety. "
(Italics supplied). There is an implied recognition in the aforesaid denition of
martial law that even in places where the courts can function, such operation of the
courts may be aected by martial law should their "functioning . . . threaten the

public safety." It is possible that the courts, in asserting their authority to pass upon
questions which may adversely aect the conduct of the punitive campaign against
rebels, secessionists, dissidents as well as subversives, martial law may restrict such
judicial function until the danger to the security of the state and of the people shall
have been decimated.
The foregoing view appears to be shared by Rossiter when he stated:
"Finally, this strong government, which in some instances might
become an outright dictatorship, can have no other purposes than the
preservation of the independence of the state, the maintenance of the
existing constitutional order, and the defense of the political and social
liberties of the people. It is important to recognize the true and limited
ends of any practical application of the principle of constitutional
dictatorship. Perhaps the matter may be most clearly stated in this way:
the government of a free state is proceeding on its way and meeting
the usual problems of peace and normal times within the limiting
framework of its established constitutional order. The functions of
government are parceled out among a number of mutually independent
oces and institutions; the power to exercise those functions is
circumscribed by well-established laws, customs, and constitutional
prescriptions; and the people for whom this government was instituted
are in possession of a lengthy catalogue of economic, political, and
social rights which their leaders recognize as inherent and inalienable. A
severe crisis arises the Country is invaded by a hostile power, or a
dissident segment of the citizenry revolts, or the impact of a world-wide
depression threathens to bring the nation's economy in ruins. The
government meets the crisis by assuming more powers and respecting
fewer rights. The result is a regime which can act arbitrarily and even
dictatorially in the swift adoption of measures designed to save the
state and its people from the destructive eects of the particular crisis .
And the narrow duty to be pursued by this strong government, this
constitutional dictatorship? Simply this and nothing more: to end the
crisis and restore normal times. The government assumes no power
and abridges no right unless plainly indispensable to that end; it
extends no further in time than the attainment of that end; and it
makes no alteration in the political, social and economic structure of the
nation which can not be eradicated with the restoration of normal
times. In short, the aim of constitutional dictatorship is the complete
restoration of the status quo ante bellum. This historical fact does not
comport with philosophical theory, that there never has been a perfect
constitutional dictatorship, is an assertion that can be made without
fear of contradiction. But this is true of all institutions of government,
and the principle of constitutional dictatorship remains eternally valid no
matter how often and seriously it may have been violated in practice."
(Constitutional Dictatorship, 1948 ed., by Clinton L. Rossiter, p.7; italics
supplied.)

Finally, Rossiter expressly recognizes that during martial law, the Chief Executive
exercises legislative power, whether of temporary or permanent character, thus:

"The measures adopted in the prosecution of a constitutional

dictatorship should never be permanent in character or eect .
Emergency powers are strictly conditioned by their purpose and this
purpose is the restoration of normal conditions. The actions directed to
this end should therefore be provisional. For example, measures of a
legislative nature which work a lasting change in the structure of the
state or constitute permanent derogations from existing law should not
be adopted under an emergency enabling act, at least not without the
positively registered approval of the legislature. Permanent laws,
whether adopted in regular or irregular times, are for parliaments to
enact. By this same token, the decisions and sentences of
extraordinary courts should be reviewed by the regular courts after the
termination of the crisis.

"But what if a radical act of permanent character, one working

lasting changes in the political and social fabric, is indispensable to the
successful prosecution of the particular constitutional dictatorship? The
only answer can be: it must be resolutely taken and openly
acknowledged. President Lincoln found it necessary to proceed to the
revolutionary step of emancipation in aid of his conservative purpose of
preserving the Union; as a constitutional dictator he had a moral right
to take this radical action. Nevertheless, it is imperative that any action
with such last eects should eventually receive the positive approval of
the people or of their representatives in the legislature." (P. 303, italics
supplied).

From the foregoing citations, under martial law occasioned by severe crisis
generated by revolution, insurrection or subversion or even by just severe economic
depression or dislocation, the government exercises more powers and respects
fewer rights in order "to end the crisis and restore normal times." The government
can assume additional powers indispensable to the attainment of that end the
complete restoration of peace. In our particular case, eradication of the causes that
incited rebellion and subversion as well as secession, is the sine qua non to the
complete restoration of normalcy. Exercise of legislative power by the President as
Commander in Chief, upon his proclamation of martial law, is justied because, as
he professes, it is directed towards the institution of radical reforms essential to the
elimination of the causes of rebellious, insurgent or subversive conspiracies and the
consequent dismantling of the rebellious, insurgent or subversive apparatus.
Hence, the issuance of Presidential Decree Nos. 86 and 86-A as well as Proclamation
No. 1102 is indispensable to the eectuation of the reforms within the shortest
possible time to hasten the restoration of normalcy.
"Must the government be too strong for the liberties of the people; or must it be too
weak to maintain its existence?" That was the dilemma that vexed President
Lincoln during the American Civil War, when without express authority in the
Constitution and the laws of the United States, he suspended one basic human
freedom the privilege of the writ of habeas corpus in order to preserve with

permanence the American Union, the Federal Constitution of the United States and
all the civil liberties of the American people. This is the same dilemma that
presently confronts the Chief Executive of the Republic of the Philippines, who,
more than the Courts and Congress, must, by express constitutional mandate,
secure the safety of our Republic and the rights as well as lives of the against open
rebellion, insidious subversion and succession. The Chief Executive announced
repeatedly that in choosing to proclaim martial law, the power expressly vested in
him by the 1935 Constitution (Sec. 10[2], Art. VII, 1935 Constitution) to insure our
national and individual survival in peace and freedom, he is in eect waging a
peaceful, democratic revolution from the center against the violent revolution and
subversion being mounted by the economic oligarchs of the extreme right, who
resist reforms to maintain their economic hegemony, and the communist rebels and
Moist oriented secessionists of the extreme left who demand swift institution of
reforms. In the exercise of his constitutional and statutory powers, to save the state
and to protect the citizenry against actual and threatened assaults from insurgents,
secessionists and subversives, doctrinaire concepts and principles, no matter how
revered they may be by jurisprudence and time, should not be regarded as
peremptory commands; otherwise the dead hand of the past will regulate and
control the security and happiness of the living present. A contrary view would be to
deny the self-evident proposition that constitution and laws are mere instruments
for the well-being, peace, security and prosperity of the country and its citizenry.
The law as a means of social control is not static, but dynamic. Paraphrasing Mr.
Justice Frankfurter, the Constitution is neither a printed nality nor the
imprisonment of the past, but the unfolding of the future. In the vein of Mr. Justice
Holmes, the meaning of the words of the Constitution is not to be determined by
merely opening a dictionary. Its terms must be construed in the context of the
realities in the life of a nation it is intended to serve. Because experience may teach
one generation to doubt the validity and ecacy of the concepts embodied in the
existing Constitution and persuade another generation to abandon them entirely,
heed should be paid to the wise counsel of some learned jurists that in the
resolution of constitutional questions like those posed before Us the blending
of idealism and practical wisdom or progressive legal realism should be applied (see
Alexander M. Bickel, the Supreme Court and the Idea of Progress, 1970 ed., pp. 1921). To Justice Frankfurter, law is "a vital agency for human betterment" and
constitutional law "is applied politics, using the word in its noble sense."
(Frankfurter, Law and Politics, 1939 ed., pp. 3 & 6; italics supplied). Justice Brandeis
gave utterance to the truth that "Our Constitution is not a straight jacket. It is a
living organism. As such, it is capable of growth or expansion and adaptation to
new conditions. Growth implies changes, political, economic and social." (Brandeis
Papers, Harvard Law School; italics supplied). Harvard Professor Thomas Reed
Powell emphasizes "practical wisdom," for " the logic of constitutional law is the
common sense of the Supreme Court." (Powell, the Validity of State Legislation,
under the Webb-Kenyon Law, 2 Southern Law Quarterly, pp. 112, 138-139, cited in
Bickel's Opus, supra; italics supplied).
The eternal paradox in this nite world of mortal and fallible men is that nothing is
permanent except change. Living organisms as well as man-made institutions are
not immutable. Civilized men organize themselves into a State only for the purpose

of serving their supreme interest their welfare. To achieve such end, they created
an agency known as the government. From the savage era thru ancient times, the
Middle Ages, the Dark Ages and the Renaissance to this era of sophisticated
electronics and nuclear weaponry, states and governments have mutated in their
search for the magic instrument for their well-being. It was trial and error then as it
is still now. Political philosophies and constitutional concepts, forms and kinds of
government, had been adopted, overturned, discarded, re-adopted or modied to
built the needs of a given society at a particular given epoch. This is true of
constitutions and laws because they are not "the infallible instruments of a
manifest destiny." No matter how we want the law to be stable, it cannot stand
still. As Mr. Justice Holmes aptly observed, every "constitution is an experiment as
all life is an experiment," (Abrahms vs. U.S., 250 US 616, 631) for 'the life of the
law is not logic, but experience." In the pontical tones of Mr. Justice Benjamin
Nathan Cardozo, "so long as society is inconstant, there can be no constancy in law,"
and "there will be change whether we will it or not." As Justice Jose P. Laurel was
wont to say, "We cannot, Canute-like, command the waves of progress to halt."
Thus, political scientists and jurists no longer exalt with vehemence a "government
that governs least." Adherents there are to the poetic dictum of Alexander Pope:
"For forms of government let fools contest; whatever is best administered is best."
(Poems of Pope, 1931 Cambridge ed., p. 750). In between, the shades vary from
direct democracy, representative democracy, welfare states, socialist democracy,
mitigated socialism, to outright communism which degenerated in some countries
into totalitarianism or authoritarianism.
Hence, even the scholar, who advances academic opinions unrelated to factual
situations in the seclusion of his ivory tower, must perforce submit to the inexorable
law of change in his views, concepts, methods and techniques when brought into
the actual arena of conict as a public functionary face to face with the practical
problems of state, government and public administration. And so it is that some
learned jurists, in the resolution of constitutional issues that immediately aect the
lives, liberties and fortunes of the citizens and the nation, recommend the blending
of idealism with practical wisdom, which legal thinkers prefer to identify as
progressive legal realism. The national leader, who wields the powers of
government, must and has to innovate if he must govern eectively to serve the
supreme interests of the people. This is especially true in times of great crises where
the need for a leader with vision, imagination, capacity for decision and courageous
action is greater, to preserve the unity of the people, to promote their well-being,
and to insure the safety and stability of the Republic. When the methods of
rebellion and subversion have become covert, subtle and insidious, there should be
a recognition of the corresponding authority on the part of the Commander-in-Chief
of the Armed Forces to utilize all the available techniques to suppress the peril to
the security of the government and the State.
Over a century and a half ago, Thomas Jeerson, one of the founding fathers of the
American Constitution and former President of the United States, who personies
the progressive liberal, spoke the truth when he said that some men "ascribe to
men of the preceding age a wisdom more than human, and suppose what they did

to be beyond amendment . . . But I know also, that laws and institutions must go
hand in hand with the progress of the human mind. As that becomes more
developed, more enlightened, as new discoveries are made, new truths disclosed
and manners and opinions change, with the change of circumstances, institutions
must also advance, and keep pace with the times." (Vol. 12, Encyclopedia
Britannica, 1969 ed., p. 989).

The wisdom of the decision of the Chief Executive can only be judged in the
perspective of history. It cannot be adequately and fairly appraised within the
present ambiance, charged as it is with so much tension and emotion, if not partisan
passion. The analytical, objective historians will write the nal verdict in the same
way that they pronounced judgment on President Abraham Lincoln who suspended
the privilege of the writ of habeas corpus without any constitutional or statutory
authority therefor and of President Franklin Delano Roosevelt who approved the
proclamation of martial law in 1941 by the governor of Hawaii throughout the
Hawaiian territory. President Lincoln not only emancipated the Negro slaves in
America, but also saved the Federal Republic of the United States from
disintegration by his suspension of the privilege of the writ of habeas corpus, which
power the American Constitution and Congress did not then expressly vest in him.
No one can deny that the successful defense and preservation of the territorial
integrity of the United States was due in part, if not to a great extent, to the
proclamation of martial law over the territory of Hawaii main bastion of the outer
periphery or the outpost of the American defense perimeter in the Pacic which
protected the United States mainland not only from actual invasion but also from
aerial or naval bombardment by the enemy. Parenthetically, the impartial observer
cannot accurately conclude that the American Supreme Court acted with courage in
its decision in the cases of Ex parte Milligan and Duncan vs. Kahanamoku (led on
May 10, 1865 argued on March 5 to 13, 1866, decided on April 3, 1866, and opinion
delivered on December 17, 1866) after the lifting of the proclamation suspending
the privilege of the writ of habeas corpus, long after the Civil War and the Second
World ended respectively on April 9 or 26, 1865 (Vol. 1, Encyclopedia Britannica,
1969 ed., pp. 730, 742) and on September 2, 1945 (Vol. 23, Encyclopedia
Britannica, 1969 ed., p. 799). Was the delay on the part of the American Supreme
Court in deciding these cases against the position of the United States President
in suspending the privilege of the writ of habeas corpus in one case and approving
the proclamation of martial law in the other deliberate as an act of judicial
statesmanship and recognition on their part that an adverse court ruling during the
period of such a grave crisis might jeopardize the survival of the Federal Republic of
the United States in its life-and-death struggle against an organized and well armed
rebellion within its own borders and against a formidable enemy from without its
territorial confines during the last global armageddon?

VIII
DOCTRINE OF SEPARATION OF POWERS PRECLUDES MANDAMUS AGAINST
SENATORS.

In G.R. No. L-36165, mandamus will not lie to compel respondents Gil Puyat and
Jose Roy to convene the Senate of the Philippines even on the assumption that the
1935 Constitution still subsists; because pursuant to the doctrine of separation of
powers under the 1935 Constitution, the processes of this Court cannot legally
reach a coordinate branch of the government or its head. This is a problem that is
addressed to the Senate itself for resolution; for it is purely an internal problem of
the Senate. If a majority of the senators can convene, they can elect a new Senate
President and a new Senate President Pro Tempore. But if they have no quorum,
those present can order the arrest of the absent members (Sec. 10[2], Art. VI, 1935
Constitution). If this falls, then there is no remedy except an appeal to the people.
The dictum ubi jus, ubi remedium, is not absolute and certainly does not justify the
invocation of the power of this Court to compel action on the part of a co-equal body
or its leadership. This was emphasized with sucient clarity by this Court in the
1949 case of Avelino vs. Cuenco (83 Phil. 17, 22-24), with which the distinguished
counsels for the petitioners in L-36164 and L-36165 are familiar. WE stress that the
doctrine of separation of powers and the political nature of the controversy such as
this, preclude the interposition of the Judiciary to nullify an act of a coordinate body
or to command performance by the head of such a co-ordinate body of his functions.
Mystifying is the posture taken by counsels for petitioners in referring to the
political question doctrine almost in mockery as a magic formula which should
be disregarded by this Court, forgetting that this magic formula constitutes an
essential skein in the constitutional fabric of our government, which, together with
other basic constitutional precepts, conserves the unity of our people, strengthens
the structure of the government and assures the continued stability of the country
against the forces of division, if not of anarchy.
Moreover, if they have a quorum, the senators can meet anywhere. Validity of the
acts of the Senate does not depend on the place of session; for the Constitution does
not designate the place of such a meeting. Section 9 of Article VI imposes upon
Congress to convene in regular session every year on the 4th Monday of January,
unless a dierent date is xed by law, or on special session called by the President.
As former Senator Arturo Tolentino, counsel for respondents Puyat and Roy in L36165, stated, the duty to convene is addressed to all members of Congress, not
merely to its presiding ocers. The fact that the doors of Congress are padlocked,
will not prevent the senators especially the petitioners in L-36165 if they are
minded to do so, from meeting elsewhere at the Sunken Gardens, at the Luneta
Independence Grandstand, in any of the big hotels or theaters, in their own houses,
or at the Araneta Coliseum, which is owned by the father-in-law of petitioner
Gerardo Roxas in L-36165.
However, a session by the Senate alone would be purely an exercise in futility, for it
cannot validly meet without the lower House (Sec. 10[5], Art. VI, 1935
Constitution). Hence, this petition by five former senators for mandamus in L-36165
is useless.
And as pointed out by former Senator Arturo Tolentino, counsel for respondents
Puyat and Roy, mandamus will lie only if there is a law imposing on the

respondents the duty to convene the body. The rule imposing such a duty invoked
by petitioners in L-36165 is purely an internal rule of the Senate; it is not a law
because it is not enacted by both Houses and approved by the President.
The Constitutional provision on the convening of Congress, is addressed to the
individual members of the legislative body (Sec. 9, Art. VI of 1935 Constitution).

IX
TO NULLIFY PROCLAMATION NO. 1102 AND 1973 CONSTITUTION REQUIRES
EIGHT OR TEN VOTES OF SUPREME COURT.
The petitioners in L-36164 and L-36236 specically pray for a declaration that the
alleged ratication of the 1973 Constitution is null and void and that the said 1973
Constitution be declared unenforceable and inoperative.
As heretofore stated, Proclamation No. 1102 is an enactment of the President as
Commander-in-Chief during martial law as directly delegated to him by Section
10(2) of Article VII of the 1935 Constitution.
A declaration that the 1973 Constitution is unenforceable and inoperative is
practically deciding that the same is unconstitutional. The proposed Constitution is
an act of the Constitutional Convention, which is co-equal and coordinate with as
well as independent of either Congress or the Chief Executive. Hence, its nal act,
the 1973 Constitution, must have the same category at the very least as the act of
Congress itself.
Consequently, the required vote to nullify Proclamation No. 1102 and the 1973
Constitution should be eight (8) under Section 10 of Article VIII of the 1935
Constitution in relation to Section 9 of the Judiciary Act or Republic Act No. 296, as
amended, or should be ten (10) under Section 2(2) of Article X of the 1973
Constitution. Should the required vote of eight (8) or ten (10), as the case may be,
for the declaration of invalidity or unconstitutionality be not achieved, the 1973
Constitution must be deemed to be valid, in force and operative.

X
ARTICLE OF FAITH
WE yield to no man as devotees of human rights and civil liberties. Like Thomas
Jeerson, We swear "eternal hostility towards any form of tyranny over the mind of
man" as well as towards bigotry and intolerance, which are anathema to a free
spirit. But human rights and civil liberties under a democratic or republican state are
never absolute and never immune to restrictions essential to the common weal. A
civilized society cannot long endure without peace and order, the maintenance of
which is the primary function of the government. Neither can civilized society
survive without the natural right to defend itself against all dangers that may
destroy its life, whether in the form of invasion from without or rebellion and
subversion from within. This is the rst law of nature and ranks second to none in
the hierarchy of all values, whether human or governmental. Every citizen, who

prides himself in being a member or a civilized society under an established

government, impliedly submits to certain constraints on his freedom for the general
welfare and the preservation of the State itself, even as he reserves to himself
certain rights which constitute limitations on the powers of government. But when
there is an inevitable clash between an exertion of governmental authority and the
assertion of individual freedom, the exercise of which freedom imperils the State
and the civilized society to which the individual belongs, there can be no alternative
but to submit to the superior right of the government to defend and preserve the
State. In the language of Mr. Justice Holmes often invoked by herein petitioners
"when it comes to a decision involving its (state life, the ordinary rights of
individuals must yield to what he (the President) deems the necessities of the
moment. Public danger warrants the substitution of executive process for judicial
process. (See Keely vs. Sanders, 99 U.S. 441, 446, 25 L ed. 327, 328). This was
admitted with regard to killing men in the actual clash of arms. And we think it is
obvious, although it was disputed, that the same is true of temporary detention to
prevent apprehended harm." (Moyer vs. Peabody, 212 U.S. 77, 85, 53 L ed., 411,
417).

The rhetoric of freedom alone is not enough. It must be the rhetoric of freedom with
order and security for all, that should be the shibboleth; for freedom cannot be
enjoyed in an environment of disorder and anarchy.
The incumbent Chief Executive who was trying to gain the support for his reform
program long before September 21, 1972, realized almost too late that he was
being deceived by his partymates as well as by the opposition, who promised him
cooperation, which promises were either oered as a bargaining leverage to secure
concessions from him or to delay the institution of the needed reforms. The people
have been victimized by such bargaining and dilly-dallying. To overt a terrifying
blood bath and the breakdown of the Republic, the incumbent President proclaimed
martial law to save the Republic from being overrun by communists, secessionists
and rebels by eecting the desired reforms in order to eradicate the evils that
plague our society, which evils have been employed by the communists, the rebels
and secessionists to exhort the citizenry to rise against the government. By
eliminating the evils, the enemies of the Republic will be decimated. How many of
the petitioners and their counsels have been utilizing the rebels, secessionists and
communists for their own personal or political purposes and how many of them are
being used in turn by the aforesaid enemies of the State for their own purposes?
If the petitioners are sincere in their expression of concern for the greater mass of
the populace, more than for their own selves, they should be willing to give the
incumbent Chief Executive a chance to implement the desired reforms. The
incumbent President assured the nation that he will govern within the framework
of the Constitution and if at any time, before normalcy is restored, the people thru
their Citizens' Assemblies, cease to believe in his leadership, he will step down
voluntarily from the Presidency. But if, as apprehended by the petitioners, he
abuses and brutalizes the people, then to the battlements we must go to man the

ramparts against tyranny. This, it is believed, he knows only too well; because he is
aware that he who rides the tiger will eventually end inside the tiger's stomach. He
who toys with revolution will be swallowed by that same revolution. History is
replete with examples of libertarians who turned tyrants and were burned at stake
or beheaded or hanged or guillotined by the very people whom they at rst
championed and later deceived. The most bloody of such mass executions by the
wrath of a wronged people, was the decapitation by guillotine of about 15,000
Frenchmen including the leaders of the French revolution, like Robespierre, Danton,
Desmoulins and Marat. He is fully cognizant of the lessons of history.
HENCE, THE DISMISSAL OF THESE FIVE CASES IS JUSTIFIED.
ESGUERRA, J.: For Dismissal of Petitions
These petitions seek to stop and prohibit the respondents Executive Ocers from
implementing the Constitution signed on November 30, 1972; in L-36165, to
compel respondents Gil Puyat and Jose J. Roy, President and President Pro-Tempore,
respectively, of the Senate under the 1935 Constitution, to convene the Senate in
regular session which should have started on January 22, 1973; to nullify
Proclamation No. 1102 of the President issued on January 17, 1973, which declared
the ratication of the Constitution on November 30, 1972, by the Filipino people,
through the barangays or Citizens Assemblies established under Presidential Decree
No. 86 issued on December 31, 1972, which were empowered under Presidential
Decree No. 86-A, issued on January 5, 1973, to act in connection with the
ratification of said Constitution.
Grounds for the petitions are as follows:
1.That the Constitutional Convention was not a free forum for the making of a
Constitution after the declaration of Martial Law on September 21, 1972.
2.The Convention was not empowered to incorporate certain provisions in the 1972
Constitution because they are highly unwise and objectionable and the people were
not sufficiently informed about them.
3.The President had no authority to create and empower the Citizens Assemblies to
ratify the new Constitution at the referendum conducted in connection therewith,
as said assemblies were merely for consultative purposes, and
4.The provisions of Article XV of the 1935 Constitution prescribing the manner of
amending the same were not duly observed.
The petitions were not given due course immediately but were referred to the
Solicitor General as counsel for the respondents for comment, with three members
of the Court, including the undersigned, voting to dismiss them outright. The
comments were considered motions to dismiss which were set for hearing and
extensively argued. Thereafter both parties submitted their notes and memoranda
on their oral arguments.

I.
The issues raised for determination, on which the resolution of the Motion to
Dismiss hinges, are as follows:
1.Is the question presented political and, hence, beyond the competence of this
Court to decide, or is it justiciable and fit for judicial determination?
2.Was the new Constitution of November 30, 1972, ratied in accordance with the
amending process prescribed by Article XV of the 1935 Constitution?
3.Has the new Constitution been accepted and acquiesced in by the Filipino people?
4.Is the new Constitution actually in force and effect?
5.If the answers to questions Nos. 3 and 4 be in the armative, are petitioners
entitled to the reliefs prayed for?
II.
The pivotal question in these cases is whether the issue raised is highly political and,
therefore, not justiciable. I maintain that this Court should abstain from assuming
jurisdiction, but, instead, as an act of judicial statesmanship, should dismiss the
petitions. In resolving whether or not the question presented is political, joint
discussion of issues Nos. 1, 3 and 4 is necessary so as to arrive at a logical
conclusion. For after the acceptance of a new Constitution and acquiescence therein
by the people by putting it into practical operation, any question regarding its
validity should he foreclosed and all debates on whether it was duly or lawfully
ushered into existence as the organic law of the state become political and not
judicial in character.
The undisputed facts that lead to the issuance of Proclamation No. 1102 and
Presidential Decrees Nos. 86 and 86-A are fully set forth in the majority and
dissenting opinions in the Plebiscite cases decided on January 22, 1973, and need
not be repeated here.
Petitioners seeks to set at naught Proclamation No. 1102 and Presidential Decrees
Nos. 86 and 86-A, claiming that the ratication of the new Constitution pursuant to
the said decrees is invalid and of no eect. Presidential Decree No. 86 organized the
barangays or Citizens Assemblies composed of all citizens at least fteen years of
age, and through these assemblies the proposed 1972 Constitution was submitted
to the people for ratication. Proclamation No. 1102 of the President announced or
declared the result of the referendum or plebiscite conducted through the Citizens
Assemblies, and that 14,976,561 members thereof voted for the ratication of the
new Constitution and 743,869 voted against it. Petitioners assail these two acts of
the President as unauthorized and devoid of legal effect.
But looking through the veneer of judicial conformity with which the petitions have
been adroitly contrived, what is sought to be invalidated is the new Constitution
itself the very framework of the present Government since January 17, 1973.

The reason is obvious. The Presidential decrees set up the means for the ratication
and acceptance of the new Constitution and Proclamation No. 1102 simply
announced the result of the referendum or plebiscite by the people through the
Citizens Assemblies. The Government under the new Constitution has been running
on its tracks normally and apparently without obstruction in the form of organized
resistance capable of jeopardizing its existence and disrupting its operation.
Ultimately the issue is whether the new Constitution may be set aside by this
Court. But has it the power and authority to assume such a stupendous task when
the result of such invalidation would be to subject this nation to divisive
controversies that may totally destroy the social order which the Government under
the new Constitution has been admirably protecting and promoting under Martial
Law? That the new Constitution has taken deep root and the people are happy and
contended with it is a living reality which the most articulate critics of the new
order cannot deny. 95 out of 108 members of the House of Representatives have
opted to serve in the interim National Assembly provided for under the new
Constitution. 15 out of 24 Senators have done likewise. The members of the
Congress did not meet anymore last January 22, 1973, not because they were really
prevented from so doing but because of no serious eort on their parts to assert
their oces under the 1935 Constitution. In brief the Legislative Department under
the 1935 Constitution is a thing of the past. The Executive Department has been
fully reorganized; new appointments of key executive ocers including those of the
Armed Forces were extended and they took an oath to support and defend the new
Constitution. The courts, except the Supreme Court by reason of these cases, have
administered justice under the new Constitution. All government oces have dealt
with the public and performed their functions according to the new Constitution and
laws promulgated thereunder.
If the real purpose of the petitions is to set aside the new Constitution, how can this
Court justify its assumption of jurisdiction when no power has . . . conferred upon it
the jurisdiction to declare the Constitution or any part thereof null and void? It is
the height of absurdity and impudence for a court to wage open war against the
organic act to which it owes its existence. The situation in which this Court nds
itself does not permit it to pass upon the question whether or not the new
Constitution has entered into force and has superseded the 1935 Constitution. If it
declares that the present Constitution has not been validly ratied, it has to uphold
the 1935 Constitution as still the prevailing organic law. The result would be too
anomalous to describe, for then this Court would have to declare that it is governed
by one Constitution or the 1935 Constitution, and the legislative and executive
branches by another or the 1972 Constitution.

If it declares that the 1972 Constitution is now operative, how can it exercise
judicial discretion in these cases when it would have no other choice but to uphold
the new Constitution as against any other one? In the circumstances it would be
bereft of judicial attributes as the matter would then be not meet for judicial
determination, but one addressed to the sovereign power of the people who have
already spoken and delivered their mandate by accepting the fundamental law on

which the government of this Republic is now functioning. To deny that the new
Constitution has been accepted and actually is in operation would be ying in the
face of reason and pounding one's bare head against a veritable stone wall or a
heavily reinforced concrete, or simply "kicking the deadly pricks" with one's bare
foot in an effort to eliminate the lethal points.
When a Constitution has been in operation for sometime, even without popular
ratication at that, submission of the people thereto by the organization of the
government provided therein and observance of its prescriptions by public ocers
chosen thereunder, is indicative of approval. Courts should be slow in nullifying a
Constitution claimed to have been adopted not in accordance with constitutional or
statutory directives [Miller vs. Johnson, 92 Ky. 589; 189 S.W. 522; Taylor vs.
Commonwealth, 101; Va. 829; 44 S.E. 754; Smith vs. Good, 34 F 204, 207; Wiston
vs. Ryan, 70 Neb. 211; 97 N.W. 347].
In Miller vs. Johnson, supra, the Court said:
". . . But it is a case where a new constitution has been formed and
promulgated according to the forms of law. Great interests have already
arisen under it; important rights exist by virtue of it; persons have been
convicted of the highest crimes known to the law, according to its
provisions; the political power of the government has in many ways
recognized it; and under such circumstances, it is our duty to treat and
regard it as a valid constitution, and now the organic law of our state. We
need not consider the validity of the amendments made after the convention
reassembled. If the making of them was in excess of its power, yet, as the
entire instrument has been recognized as valid in the manner suggested, it
would be equally an abuse of power by the judiciary, and violative of the
rights of the people, who can and property should remedy the matter, if
not to their liking, if it were to declare the instrument or a portion invalid,
and bring confusion and anarchy upon the state." (Emphasis supplied)

In Smith vs. Good, supra, the Court said:

"It is said that a state court is forbidden from entering upon such an inquiry
when applied to a new constitution, and not an amendment, because the
judicial power presupposes an established government, and if the authority
of that government is annulled and overthrown, the power of its courts is
annulled with it; and therefore, if a state court should enter upon such an
inquiry, and come to the conclusion that the government under which it
acted had been displaced by an opposing government, it would cease to be
a court, and it would be incapable of pronouncing a judicial decision upon the
question before it; but, if it decides at all, it must necessarily arm the
existence of the government under which it exercises its judicial powers."
(Emphasis supplied)

These rules are all traceable to Luther vs. Borden, 48 U.S. (7 How.), 12 L. Ed. 581,
598 (1849) where it was held:
"Judicial power presupposes an established government capable of enacting

laws and enforcing their execution, and of appointing judges to expound

and administer them. The acceptance of the judicial oce is a recognition of
the authority of the government from which it is derived. And if the authority
of that government is annulled and overthrown, the power of its courts and
other ocers is annulled with it. And if a State court should enter upon the
inquiry proposed in this case, and should come to the conclusion that the
government under which it acted had been put aside and displaced by an
opposing government it would cease to be a court, and be incapable of
pronouncing a judicial decision upon the question it undertook to try. If it
decides at all as a court, it necessarily arms the existence and authority of
the government under which it is exercising judicial power."

The foreign relations of the Republic of the Philippines have been normally
conducted on the basis of the new Constitution and no state with which we
maintain diplomatic relations has withdrawn its recognition of our government. (For
particulars about executive acts done under the new Constitution, see pages 22-25
of the Comments of the Solicitor General, dated February 3, 1973.)
Certainly the invalidation of Proclamation No. 1102 and Presidential Decrees Nos.
86 and 86-A by this Court would smack of plain political meddling which is described
by the United States Supreme Court as "entering a political thicket" in Colegrove vs.
Green, 328 U.S. p. 549. At this juncture it would be the part of wisdom for this
Court to adopt the proper attitude towards political upheavals and realize that the
question before Us is political and not t for judicial determination. For a political
question is one entrusted to the people for judgment in their sovereign capacity
(Taada vs. Cuenco, G.R. No. L-10520, Feb. 28, 1967; 100 Phil. 1101), or to a coequal and coordinate branch of the Government (Vera vs. Arellano, 77 Phil. 192;
Mabanag vs. Lopez Vito, 78 Phil. 1; Alejandrino vs. Quezon, 46 Phil. 35; Cabili vs.
Francisco, G. R. No. 4638, May 8, 1931). A case involves a political question when
there would be "the impossibility of undertaking independent resolutions without
expressing a lack of respect due to coordinate branches of government", or when
there is "the potentiality of embarassment from multifarious pronouncements by
various departments on one question."
To preserve the prestige and eminence that this Court has long enjoyed as the
"ultimate organ of the 'Supreme Law of the Land' in that vast range of legal
problems often strongly entangled in popular feeling on which this Court must
pronounce", let us harken to the following admonition of Justice Frankfurter in his
dissent in Baker vs. Carr, 369 U.S. 186; 82 S. Ct. 691; 7 L. Ed. 2d. 663:
"The Court's authority possessed neither of the purse nor the sword
ultimately rests on sustained public condence in its moral sanction. Such
feeling must be nourished by the Court's complete detachment, in fact and
appearance, from political entanglements and abstention from injecting itself
into the clash of political forces in political settlement . . ." (Emphasis
supplied)

The people have accepted and submitted to a new Constitution to replace the 1935
Constitution. The new organic law is now in the plenitude of its ecacy and vigor.

We are now living under its aegis and protection and only the cynics will deny this.
This Court should not in the least attempt to act as a super-legislature or a superboard of canvassers and sow confusion and discord among our people by
ponticating that there was no valid ratication of the new Constitution. The sober
realization of its proper role and delicate function and its consciousness of the
limitations on its competence, especially in situations like this, are more in keeping
with the preservation of our democratic tradition than the blatant declamations of
those who wish the Court to engage in their brand of activism and would not mind
plunging it into the whirlpool of passion and emotion in an eort to capture the
entoxicating applause of the multitude.
For all the foregoing, I vote to dismiss all petitions.
ZALDIVAR, J., concurring and dissenting:
In these ve cases, the main issue to be resolved by this Court is whether or not the
Constitution proposed by the Constitutional Convention of 1971 had been ratified in
accordance with the provisions of Article XV of the 1935 Constitution. In the
plebiscite cases, which were decided by this Court on January 22, 1973 1 , I held the
view that this issue could be properly resolved by this Court, and that it was in the
public interest that this Court should declare then whether or not the proposed
Constitution had been validly ratied. The majority of this Court, however, was of
the view that the issue was not squarely raised in those cases, and so the Court, as
a body, did make any categorical pronouncement on the question of whether or not
the Constitution proposed by the 1971 Convention was validly ratied. I was the
only one who expressed the opinion that the proposed Constitution was not validly
ratified and therefore "it should not be given force and effect."
The Court is now called upon to declare, and to inform the people of this country,
whether or not that proposed Constitution had been validly ratied and had come
into effect.
The Solicitor General, however, contends that this Court has no jurisdiction to
resolve the issue that we have mentioned because that issue is a political question
that cannot be decided by this Court. This contention of the Solicitor General is
untenable. A political question relates to "those questions which under the
Constitution are to be decided by the people in their sovereign capacity or in regard
to which full discretionary authority has been delegated to the legislative, or to the
executive, branch of the government. 2 The courts have the power to determine
whether the acts of the executive are authorized by the Constitution and the laws
whenever they are brought before the court in a judicial proceeding. The judicial
department of the government exercises a sort of controlling, or rather restraining,
power over the two other departments of the government. Each of the three
departments, within its proper constitutional sphere, acts independently of the
other, and restraint is only placed on one department when that sphere is actually
transcended. While a court may not restrain the executive from committing an
unlawful act, it may, when the legality of such an act is brought before it in a
judicial proceeding, declare it to be void, the same as it may declare a law enacted

by the legislature to be unconstitutional. 3 It is a settled doctrine that every ocer

under a constitutional government must act according to law and subject to its
restrictions, and every departure therefrom, or disregard thereof, must subject him
to the restraining and controlling power of the people, acting through the agency of
the judiciary. It must be remembered that the people act through the courts, as well
as through the executive or the legislature. One department is just as
representative as the other, and the judiciary is the department which is charged
with the special duty of determining the limitations which the law places upon all
ocial actions 4 . In the case of Gonzales v. Commission on Elections 5 , this Court
ruled that the issue as to whether or not a resolution of Congress acting as a
constituent assembly violates the Constitution is not a political question and is
therefore subject to judicial review. In the case of Avelino v. Cuenco 6 , this Court
held that the exception to the rule that courts will not interfere with a political
question aecting another department is when such political question involves an
issue as to the construction and interpretation of the provisions of the constitution.
And so, it has been held that the question of whether a constitution shall be
amended or not is a political question which is not in the power of the court to
decide, but whether or not the constitution has been legally amended is a justiciable
question. 7

My study on the subject of whether a question before the court is political or judicial,
based on decisions of the courts in the United States where, after all, our
constitutional system has been patterned to a large extent made me arrive at the
considered view that it is in the power of this Court, as the ultimate interpreter of
the Constitution, to determine the validity of the proposal, the submission, and the
ratication of any change in the Constitution. Ratication or non-ratication of a
constitutional amendment is a vital element in the procedure to amend the
constitution, and I believe that the Court can inquire into, and decide on, the
question of whether or not an amendment to the constitution, as in the present
cases, has been ratied in accordance with the requirements prescribed in the
Constitution that was amended. And so, in the cases now before Us, I believe that
the question of whether or not the Constitution proposed by the 1971
Constitutional Convention had been validly ratified or not is a justiciable question.
The Chief Justice, in his opinion, has discussed lengthily the subject on whether or
not, the cases, before Us involve a political, or a judicial, question. I fully concur with
his conclusion that the question involved in these cases is justiciable.
On the question now of whether or not the Constitution proposed by the 1971
Constitutional Convention has been validly ratied, I am reproducing herein
pertinent portions of my dissenting opinion in the plebiscite cases:
"The ratication of the Constitution proposed by the 1971 Constitutional
Convention must be done in accordance with the provisions of Section 1,
Article XV of the 1935 Constitution of the Philippines, which reads:
'Section 1.The Congress in joint session assembled by a vote of

three fourths of all the Members of the Senate and of the House of
Representatives voting separately, may propose amendments to the
Constitution or call a convention for that purpose. Such amendments
shall be valid as part of this Constitution when approved by a majority
of the votes cast at an election at which the amendments are
submitted to the people for their ratification.'
"It is in consonance with the abovequoted provision of the 1935 Constitution
that on March 16, 1967, the Congress of the Philippines passed Resolution
No. 2 calling a convention to propose amendments to the Constitution of the
Philippines. Sec. 7 of said Resolution No. 2 reads as follows:
'SECTION 7.The amendments proposed by the Convention shall
be valid and considered part of the Constitution when approved by a
majority of the votes cast in an election at which they are submitted to
the people for their ratication pursuant to Article XV of the
Constitution.'
"It follows that from the very resolution of the Congress of the Philippines
which called for the 1971 Constitutional Convention there was a clear
mandate that the amendments proposed by the 1971 Convention, in order
to be valid and considered part of the Constitution, must be approved by
majority of the votes cast in an election at which they are submitted to the
people for their ratification as provided in the Constitution.
"This Court, in the case of Tolentino vs. Commission on Elections, L-35140,
October 16, 1971 (41 SCRA 715), speaking through Mr. Justice Barredo,
said:
'The Constitutional Convention of 1971, as any other convention
of the same nature, owes its existence and derives all its authority and
power from the existing Constitution of the Philippines. This
Convention has not been called by the people directly as in the case of
a revolutionary convention which drafts the rst Constitution of an
entirely new government born of either a war of liberation from a
mother country or of a revolution against an existing government or
of a bloodless seizure of power a la coup d'etat. As to such kind of
conventions, it is absolutely true that the convention is completely
without restraint and omnipotent all wise, and it is as to such
conventions that the remarks of Delegate Manuel Roxas of the
Constitutional Convention of 1934 quoted by Senator Pelaez refer. No
amount of rationalization can belie the fact that the current convention
came into being only because it was called by a resolution of a joint
session of Congress acting as a constituent assembly by authority of
Section 1, Article XV of the present Constitution . . .
xxx xxx xxx
'As to matters not related to its internal operation and the
performance of its assigned mission to propose amendments to the
Constitution, the Convention and its ocers and members are all

subject to all the provisions of the existing Constitution. Now we hold

that even as to its latter task of proposing amendments to the
Constitution, it is subject to the provisions of Section 1 of Article XV.'
"In Proclamation No. 1102, issued on January 17, 1973, the President of the
Philippines certied that as a result of the voting before the barangays
(Citizens Assemblies) 14,976,561 members of the barangays voted for the
adoption of the proposed Constitution, as against 743,869 who voted for its
rejection, and on the basis of the overwhelming majority of the votes cast by
the members of all the barangays throughout the Philippines the President
proclaimed that the Constitution proposed by the 1971 Convention has been
ratified and has thereby come into effect.
"It is very plain from the very wordings of Proclamation No. 1102 that the
provisions of Section 1 of Article XV of the Constitution of 1935 were not
complied with. It is not necessary that evidence be produced before this
Court to show that no elections were held in accordance with the provisions
of the Election Code. Proclamation No. 1102 unequivocably states that the
proposed Constitution of 1972 was voted upon by the barangays. It is very
clear, therefore, that the voting held in these barangays is not the election
contemplated in the provisions of Section 1, Article XV, of the 1935
Constitution. The election contemplated in said constitutional provision is an
election held in accordance with the provisions of the election law, where
only the qualied and registered voters of the country would cast their
votes, where ocial ballots prepared for the purpose are used, where the
voters would prepare their ballots in secret inside the voting booths in the
polling places established in the dierent election precincts throughout the
country, where the election is conducted by election inspectors duly
appointed in accordance with the election law, where the votes are
canvassed and reported in a manner provided for in the election law. It was
this kind of election that was held on May 14, 1935, when the Constitution of
1935 was ratied; on April 30, 1937, when the amendment to the
Constitution providing for Women's Surage was ratied; on June 18, 1940,
when the 1940 Amendments to the Constitution were ratied; on March 11,
1947 when the Parity Amendment to the Constitution was ratied; and on
November 14, 1967 when the amendments to the Constitution to increase
the number of Members of the House of Representatives and to allow the
Members of Congress to run in the elections for Delegates to the
Constitutional Convention of 1971 were rejected.
"I cannot see any valid reason why the practice or procedure in the past, in
implementing the constitutional provision requiring the holding of an election
to ratify or reject an amendment to the Constitution, has not been followed
in the case of the Constitution proposed by the 1971 Constitutional
Convention.
"It is my view that the President of the Philippines cannot by decree order
the ratication of the proposed 1972 Constitution thru a voting in the
barangays and make said result the basis for proclaiming the ratication of
the proposed constitution. It is very clear, to me, that Proclamation No.
1102 was issued in complete disregard or in violation, of the provisions of

Section 1 of Article XV of the 1935 Constitution.

"Proclamation No. 1102 mentions, furthermore, that on the question as to
whether or not the people would still like a plebiscite to be called to ratify the
new Constitution, 14,298,814 members of the barangays answered that
there was no need for a plebiscite but that the vote of the barangays should
be considered a vote in a plebiscite. It would thus appear that the barangays
assumed the power to determine whether a plebiscite as ordained in the
Constitution be held or not. Indeed, the provision of Section 1, Article XV of
the Constitution was completely disregarded.
"The armative votes cast in the barangays are not the votes contemplated
in Section 1 of Article XV of the 1935 Constitution. The votes contemplated
in said constitutional provision are votes obtained through the election
processes as provided by law.
'An election is the embodiment of the popular will, the
expression of the sovereign power of the people. In common parlance
an election is the act of casting and receiving the ballots, counting
them, and making the return.' (Hontiveros vs. Altavas, 24 Phil. 632,
637).
'Election' implies a choice by an electoral body at the time and
substantially in the manner and with the safeguards provided by law
with respect to some question or issue. (Leel v. Brown, Com. P1.,
159 N.E. 2d 807, 808 cited in 29 C.J.S. 13 at footnote 6.5).
'. . . the statutory method whereby qualied voters or electors
pass on various public matters submitted to them the election of
ocers, national, state, county, township the passing on various
other questions submitted for their determination.' (29 C.J.S. 13, citing
Iowa-llinois Gas & Elec. Co. v. City of Bettendorf, 41 N.W. 2d 1, 5, 241
Iowa 358).
'Election' is expression of choice by voters of body politic.
(Ginsburg v. Giles, 72 S.W. 2d 438, 254 Ky. 720, in Words and
Phrases, Permanent Edition, p. 234).
"The right to vote may be exercised only on compliance with
such statutory requirements as have been set by the legislature.'
(People ex rel. Rago v. Lipsky, 63 N.E. 2d 642, 327 Ill. App. 63;
Rothfels v. Southworth, 356 P. 2d 612, 11 Utah 2d 169 in 29 C.J.S.
38). (Italics supplied).

"In this connection I herein quote the pertinent provisions of the Election
Code of 1971:
'Sec. 2.Applicability of this Act. All elections of public ocers
except barrio officials and plebiscites shall be conducted in the manner

provided by this Code.'

'Sec. 99.Necessity of registration to be entitled to vote. In
order that a qualied voter may vote in any regular or special election
or in any plebiscite he must be registered in the permanent list of
voters for the city, municipality or municipal district in which he
resides: Provided, That no person shall register more than once
without rst applying for cancellation of his previous registration.'
(Italics supplied). (Please see also Sections 100-102, Election Code of
1971, RA. No. 6388).
"It is stated in Proclamation No. 1102 that the voting was done by the
members of citizens assemblies who are 15 years of age or over. Under the
provision of Section 1 of Article V of the 1935 Constitution the age
requirement to be a qualified voter is 21 years or over.
"But what is more noteworthy is the fact that the voting in the barangays,
except in very few instances, was done by the raising of hands by the
persons indiscriminately gathered to participate in the voting, where even
children below 15 years of age were included. This is a matter of common
observation, or of common knowledge, which the Court may take judicial
notice of. To consider the votes in the barangays as expressive of the
popular will and use them as the basis in declaring whether a Constitution is
ratied or rejected is to resort to a voting by demonstrations, which is would
mean the rule of the crowd, which is only one degree higher than the rule by
the mob. Certainly, so important a question as to whether the Constitution,
which is the supreme law of the land, should be ratied or not, must not be
decided by simply gathering people and asking them to raise their hands in
answer to the question of whether they vote for or against a proposed
Constitution. The election processes as provided by law should be strictly
observed in determining the will of the sovereign people in a democracy. In
our Republic the will of the people must be expressed through the ballot in a
manner that is provided by law.
"It is said that in a democracy the will of the people is the supreme law.
Indeed, the people are sovereign, but the will of the people must be
expressed in a manner as the law and the demands of a well-ordered
society require. The rule of law must prevail even over the apparent will of
the majority of the people, if that will had not been expressed, or obtained, in
accordance with the law. Under the rule of law public questions must be
decided in accordance with the Constitution and the law. This is specially true
in the case of the adoption of a constitution or in the ratication of an
amendment to the Constitution.
"The following citations are, to me, very relevant in the eort to determine
whether the proposed Constitution of 1972 had been validly ratified, or not:
'When it is said that 'the people' have the right to alter or amend
the constitution, it must not be understood that this term necessarily
includes all the inhabitants of the state. Since the question of the
adoption or rejection of a proposed new constitution or constitutional

amendment must be answered by a vote, the determination of it rests

with those who, by the existing constitution, are accorded the right of
surage. But the qualied electors must be understood in this, as in
many other cases, as representing those who have not the right to
participate in the ballot. If a constitution should be abrogated, and a
new one adopted, by the whole mass of people in a state, acting
through representatives not chosen by the 'people' in the political
sense of the term, but by the general body of the populace, the
movement would be extra-legal' (Black's Constitutional Law, Second
Edition, pp. 47-48).
'The theory of our political system is that the ultimate
sovereignty is in the people, from whom springs all legitimate
authority. The people of the Union created a national constitution, and
conferred upon it powers of sovereignty over certain subjects, and
the people of each State created a State government, to exercise the
remaining powers of sovereignty so far as they were disposed to
allow them to be exercised at all. By the constitution which they
establish, they not only tie up the hands of their ocial agencies, but
their own hands as well; and neither the ocers of the State, nor the
whole people as an aggregate body, are at liberty to take action in
opposition to this fundamental law.' (Cooley's Constitutional
Limitations, 8th Edition, Vol. I, p. 81 cited in Graham v. Jones, 3 So. 2d.
761, 782).
'The theory that a favorable vote by the electorate, however
unanimous, on a proposal to amend a constitution, may cure, render
innocuous, all or any antecedent failures to observe commands of
that Constitution in respect of the formulation or submission of
proposed amendments thereto, does not prevail in Alabama, where
the doctrine of the stated theory was denied, in obvious eect, by the
pronouncement 60 years ago of broad, wholesome constitutional
principles in Collier v. Frierson, supra, as quoted in the original opinion,
ante. The people themselves are bound by the Constitution; and, being
so bound, are powerless, whatever their numbers, to change or
thwart its mandates, except through the peaceful means of a
constitutional convention, or of amendment according to the mode
therein prescribed, or through the exertion of the original right of
revolution. 'The Constitution may be set aside by revolution, but it can
only be amended in the way it provides,' said Hobson, C.J., in
McCreary v. Speer, 156 Ky. 783, 791, 162 S. W. 99, 103. (Johnson vs.
Craft, et al., 87 So. 375, 385, 387, On Rehearing).
'The fact that a majority voted for the amendment, unless the
vote was taken as provided by the Constitution, is not sucient to
make a change in that instrument. Whether a proposed amendment
has been legally adopted is a judicial question, for the court must
uphold and enforce the Constitution as written until it is amended in
the way which it provides for.' Wood v. Tooker, 15 Mont. 8, 37 Pac.
840, 25 L.R.A. 560; McConaughty v. State, 106 Minn. 409, 119 N.W.

408; Oakland Paving Company v. Hilton, 69 Cal. 499,11 Pac. 3; Utter

v. Mosely, 16 Idaho 274, 100 Pac. 1958, 133 Am. St. Rep. 94, 18 Ann.
Cas. 723. (McCreary v. Speer, 162 S.W. 99,104).
'Provisions of a constitution regulating its own amendment, . . .
are not merely directory, but are mandatory; and a strict observance
of every substantial requirement is essential to the validity of the
proposed amendment. These provisions are as binding on the people
as on the legislature, and the former are powerless by vote of
acceptance to give legal sanction to an amendment the submission of
which was made in disregard of the limitations contained in the
constitution.' (16 C.J.S. 35-36 cited in Graham v. Jones, 3 So. 2d 761,
782).
'It is said that chaos and confusion in the governmental aairs
of the State will result from the Court's action in declaring the
proposed constitutional amendment void. This statement is grossly
and manifestly inaccurate. If confusion and chaos should ensue, it will
not be due to the action of the Court but will be the result of the
failure of the drafters of the joint resolution to observe, follow and
obey the plain essential provisions of the Constitution. Furthermore, to
say that, unless the Court disregards its sworn duty to enforce the
Constitution, chaos and confusion will result, is an inherently weak
argument in favor of the alleged constitutionality of the proposed
amendment. It is obvious that, if the Court were to countenance the
violations of the sacramental provisions of the Constitution, those who
would thereafter desire to violate it and disregard its clear mandatory
provisions would resort to the scheme of involving and confusing the
aairs of the State and then simply tell the Court that it was powerless
to exercise one of its primary functions by rendering the proper
decree to make the Constitution eective.' (Graham v. Jones, 3 So. 2d.
761, 793-794).
"In our jurisprudence I nd an instance where this Court did not allow the will
of the majority to prevail, because the requirements of the law were not
complied with. In the case of Monsale v. Nico, 83 Phil. 758, Monsale and Nico
were both candidates for the oce of Municipal Mayor of Miagao, Iloilo, in
the elections of November 11, 1947. Monsale had duly led his certicate of
candidacy before the expiration of the period for the ling of the same.
However, on October 10, 1947, after the period for the ling of certicate of
candidacy, Monsale withdrew his certicate of candidacy. But on November
7, 1947 Monsale attempted to revive his certicate of candidacy by
withdrawing the withdrawal of his certicate of candidacy. e ( The
Commission on Elections, on November 8, 1947, ruled that Monsale could
no longer be a candidate. Monsale nevertheless proceeded with his
candidacy. The boards of inspectors in Miagao, however, did not count the
votes cast for Monsale upon the ground that the votes cast for him were
stray votes, because he was considered as having no certicate of
candidacy. On the other hand, the boards of inspectors credited Nico with
2,291 votes, and Nico was proclaimed elected. Monsale led a protest

against the election of Nico in the Court of First Instance of Iloilo. In the
count of the ballots during the proceedings in the trial court it appeared that
Monsale had obtained 2,877 votes while Nico obtained 2,276 votes, or a
margin of 601 votes in favor of Monsale. The Court of First Instance of Iloilo
decided the election protest in favor of Monsale. Upon appeal by Nico, this
Court reversed the decision of the lower court. This Court declared that
because Monsale withdrew his certicate of candidacy his attempt to revive
it by withdrawing his withdrawal of his certicate of candidacy did not
restore the eectiveness of his certicate of candidacy, and this Court
declared Nico the winner in spite of the fact that Monsale had obtained more
votes than he.

"We have cited this Monsale case to show that the will of the majority of the
voters would not be given eect, as declared by this Court, if certain legal
requirements have not been complied with in order to render the votes valid
and effective to decide the result of an election.
"And so, in the cases now before this Court, the fact that the voting in the
citizens assemblies (barangays) is not the election that is provided for in the
1935 Constitution for the ratication of the amendment to the Constitution,
the armative votes cast in those assemblies can not be made the basis for
declaring the ratication of the proposed 1972 Constitution, in spite of the
fact that it was reported that 14,976,561 members of the citizens
assemblies voted for the adoption as against 743,869 for the rejection,
because the votes thus obtained were not in accordance with the provisions
of Section 1 of Article XV of the 1935 Constitution of the Philippines. The rule
of law must he upheld.
"My last observation: One of the valid grounds against the holding of the
plebiscite on January 15, 1973, as provided in Presidential Decree No. 73, is
that there is no freedom on the part of the people to exercise their right of
choice, because of the existence of martial law in our country. The same
ground holds true as regards the voting of the barangays on January 10 to
15, 1973. More so, because by General Order No. 20, issued on January 7,
1973, the President of the Philippines ordered 'that the provisions of Section
3 of Presidential Decree No. 73 in so far as they allow free public discussion
of the proposed constitution, as well as any order of December 17, 1972
temporarily suspending the eects of Proclamation No. 1081 for the
purpose of free and open debate on the proposed constitution, he
suspended in the meantime.' It is, therefore, my view that voting in the
barangays on January 10-15, 1973 was not free, and so this is one added
reason why the results of the voting in the barangays should not be made
the basis for the proclamation of the ratication of the proposed
Constitution.
"It is my view, therefore, that Proclamation No. 1102 is repugnant to the
1935 Constitution, and so it is invalid, and should not be given eect. The
Constitution of 1972 proposed by the 1971 Constitutional Convention
should be considered as not yet ratied by the people of this Republic, and

so it should not be given force and effect."

It is urged by the Solicitor General, however, that the voting in the citizens
assemblies was a substantial compliance with the provisions of Article XV of the
1935 Constitution. The Solicitor General-maintains that the primary thrust of the
provision of Article XV of the 1935 Constitution is that "to be valid, amendments
must gain the approval of the majority in recognition of the democratic postulate
that sovereignty resides in the people." It is not disputed that in a democracy
sovereignty resides in the people. But the term "people" must be understood in its
constitutional meaning, and they are "those persons who are permitted by the
Constitution to exercise the elective franchise." 8 Thus, in Section 2 of Article VII of
the 1935 Constitution, it is provided that "The President shall hold his oce during
a term of four years and, together with the Vice- President chosen for the same
term, shall be elected by direct vote of the people . . ." Certainly under that
constitutional provision the "people" who elect directly the President and the VicePresident are no other than the persons who, under the provisions of the same
Constitution, are granted the right to vote. In like manner the provision in Section 1
of Article II of the 1935 Constitution which says "Sovereignty resides in the people
and all government authority emanates from them", the "people" who exercise the
sovereign power are no other than the persons who have the right to vote under
the Constitution. In the case of Garchitorena vs. Crescini 9 , this Court, speaking
through Mr. Justice Johnson, said, "In democracies, the people, combined, represent
the sovereign power of the State. Their sovereign authority is expressed through
the ballot, of the qualied voters, in duly appointed elections held from time to
time, by means of which they choose their ocials for denite xed periods, and to
whom they entrust, for the time being, as their representatives, the exercise of the
powers of government." In the case of Moya v. Del Fierro, 10 this Court, speaking
through Mr. Justice Laurel, said, "As long as popular government is an end to be
achieved and safeguarded, surage, whatever may be the modality and form
devised, must continue to be the means by which the great reservoir of power must
be emptied into the receptacular agencies wrought by the people through their
Constitution in the interest of good government and the common weal.
Republicanism, in so far as it implies the adoption of a representative type of
government, necessarily points to the enfranchised citizen as a particle of popular
sovereignty and as the ultimate source of the established authority." And in the
case of Abanil v. Justice of the Peace of Bacolod, 11 this Court said: "In the scheme of
our present republican government, the people are allowed to have a voice therein
through the instrumentality of surage to be availed of by those possessing certain
prescribed qualications. The people, in clothing a citizen with the elective franchise
for the purpose of securing a consistent and perpetual administration of the
government they ordain, charge him with the performance of a duty in the nature
of a public trust, and in that respect constitute him a representative of the whole
people. This duty requires that the privilege thus bestowed should be exercised, not
exclusively for the benet of the citizen or class of citizens professing it, but in good
faith and with an intelligent zeal for the general benet and welfare of the state.
(U.S. v. Cruikshauk, 92 U.S. 588) . . ." There is no question, therefore, that when we
talk of sovereign people, what is meant are the people who act through the duly
qualied and registered voters who vote during an election that is held as provided

in the Constitution or in the law.

The term "election" as used in Section 1 of Article XV of the 1935 Constitution
should be construed along with the term "election" as used in the provisions of
Section 4 of the Philippine Independence Act of the Congress of the United States,
popularly known as the Tydings-McDue Law (Public Act No. 127). Said Section 4 of
the Tydings-McDuffie Law provides as follows:
"Section 4.After the President of the United States has certied that the
constitution conforms with the provisions of this act, it shall be submitted to
the people of the Philippine Islands for their ratication or rejection at an
election to be held within four months after the date of such certication, on
a date to be xed by the Philippine Legislature, at which election the qualied
voters of the Philippine Islands shall have an opportunity to vote directly for
or against the proposed constitution and ordinances appended thereto.
Such election shall be held in such manner as may be prescribed by the
Philippine Legislature, to which the return of the election shall be made. The
Philippine Legislature shall by law provide for the canvassing of the return
and shall certify the result of the Governor- General of the Philippine Islands,
together with a statement of the votes cast, and a copy of said constitution
and ordinances. If a majority of the votes cast shall be for the constitution,
such vote shall be deemed an expression of the will of the people of the
Philippine Independence, and the Governor-General shall, within thirty days
after receipt of the certication from the Philippine Legislature, issue a
proclamation for the election of ocers of the government of the
Commonwealth of the Philippine Islands provided for in the Constitution . . ."

It can safely be said, therefore, that when the framers of the 1935 Constitution
used the word "election" in Section 1 of Article XV of the 1935 Constitution they
had no other idea in mind except the elections that were periodically held in the
Philippines for the choice of public ocials prior to the drafting of the 1935
Constitution, and also the "election" mentioned in the Independence Act at which
"the qualied voters of the Philippine Islands shall have an opportunity to vote
directly for or against the proposed constitution . . ." It is but logical to expect that
the framers of the 1935 Constitution would provide a mode of ratifying an
amendment to that Constitution similar to the mode of ratifying the original
Constitution itself.
It is clear, therefore, that the ratication or any amendment to the 1935
Constitution could only he done by holding an election, as the term "election" was
understood, and practiced, when the 1935 Constitution was drafted. The alleged
referendum in the citizens assemblies participated in by persons aged 15 years or
more, regardless of whether they were qualied voters or not, voting by raising
their hands, and the results of the voting reported by the barrio or ward captain to
the municipal mayor, who in turn submitted the report to the Provincial Governor,
and the latter forwarding the reports to the Department of Local Governments, all
without the intervention of the Commission on Elections which is the constitutional
body which has exclusive charge of the enforcement and administration of all laws
relative to the conduct of elections was not only a non-substantial compliance

with the provisions of Section 1 of Article XV of the 1935 Constitution but a

downright violation of said constitutional provision. It would be indulging in
sophistry to maintain that the voting in the citizens assemblies amounted to a
substantial compliance with the requirements prescribed in Section 1 of Article XV
of the 1935 Constitution, 1935 Constitution.

It is further contended by the Solicitor General, that even if the Constitution

proposed by the 1971 Constitutional Convention was not ratied in accordance with
the provisions of Section 1 of Article XV of the 1935 Constitution, the fact is that
after the President of the Philippines had issued Proclamation No. 1102 declaring
that the said proposed Constitution "has been ratied by overwhelming majority of
all the votes cast by the members of all the barangays (citizens assemblies)
throughout the Philippines and had thereby come into eect" the people have
accepted the new Constitution. What appears to me, however, is that practically it
is only the ocials and employees under the executive department of the
Government who have been performing their duties apparently in observance of
the provisions of the new Constitution. It could not be otherwise, because the
President of the Philippines, who is the head of the executive department, had
proclaimed that the new Constitution had come into eect, and his oce had taken
the steps to implement the provisions of the new Constitution. True it is, that some
92 members of the House of Representatives and 15 members of the Senate, of the
Congress of the Philippines had expressed their option to serve in the interim
National Assembly that is provided for in Section 2 of Article XVII of the proposed
Constitution. It must be noted, however, that of the 15 senators who expressed
their option to serve in the interim National Assembly only one of them took his
oath of oce, and of the 92 members of the House of Representatives who opted to
serve in the interim National Assembly, only 22 took their oath of oce. The fact,
that only one Senator out of 24, and only 22 Representatives out of 110, took their
oath of oce, is an indication that only a small portion of the members of Congress
had manifested their acceptance of the new Constitution. It is in the taking of the
oath of oce where the aant says that he swears to "support and defend the
Constitution" that the acceptance of the Constitution is made manifest. I agree with
counsel for petitioners in 1,36165 (Gerardo Roxas, et al. v. Alejandro Melchor, et al.)
when he said that the members of Congress who opted to serve in the interim
National Assembly did so only ex abundante cautela, or by way of a precaution, or
making sure, that in the event the new Constitution becomes denitely eective
and the interim National Assembly is convened they can participate in legislative
work in their capacity as duly elected representatives of the people, which
otherwise they could not do if they did not manifest their option to serve, and that
option had to be made within 30 days from January 17, 1973, the date when
Proclamation No. 1102 was issued. Of course, if the proposed Constitution does not
become eective, they continue to be members of Congress under the 1935
Constitution. Let it be considered that the members of the House of Representatives
were elected in 1969 to serve a term which will yet expire on December 31, 1973.
Whereas, of the Senators who opted to serve in the interim National Assembly, the
term of some of them will yet expire on December 31, 1973, some on December

31, 1975, and the rest on December 31, 1977. Let if be noted that 9 Senators did
not opt to serve in the interim National Assembly, and 18 members of the House of
Representatives also did not opt to serve in the interim National Assembly.
Neither can it be said that the people have accepted the new Constitution. I cannot,
in conscience, accept the reported armative votes in the citizens assemblies as a
true and correct expression by the people of their approval, or acceptance, of the
proposed Constitution. I have my serious doubts regarding the freedom of the
people to express their views regarding the proposed Constitution during the voting
in the citizens assemblies, and I have also my serious doubts regarding the
truthfulness and accuracy of the reports of the voting in the citizens assemblies. This
doubt has been engendered in my mind after a careful examination and study of
the records of these cases, particularly with respect to the reports of the voting in
the citizens assemblies. Perhaps, it may be said that the people, or the inhabitants
of this country, have acquiesced to the new Constitution, in the sense that they
have continued to live peacefully and orderly under the government that has been
existing since January 17, 1973 when it was proclaimed that the new Constitution
came into eect. But what could the people do? In the same way that the people
have lived under martial law since September 23, 1972, they also have to live
under the government as it now exists, and as it has existed since the declaration of
martial law on September 21, 1972, regardless of what Constitution is operative
whether it is the 1935 Constitution or the new Constitution. Indeed, there is
nothing that the people can do under the circumstances actually prevailing in our
country today circumstances, known to all, and which I do not consider necessary
to state in this opinion I cannot agree, therefore, with my worthy colleagues in the
Court who hold the view that the people have accepted the new Constitution, and
that because the people have accepted it, the new Constitution should be
considered as in force, regardless of the fact that it was not ratied in accordance
with the provisions of Section 1 of Article XV of the 1935 Constitution.
It is my honest view that the Constitution proposed by the 1971 Constitutional
Convention has not come into eect. I do not say, however, that the proposed
Constitution is invalid. To me, the validity of the proposed Constitution is not in
issue in the cases before Us. What the petitioners assail is not the validity of the
proposed Constitution but the validity of Presidential Proclamation No. 1102 which
declares the proposed Constitution as having been ratied and has come into eect.
It being my considered view that the ratication of the proposed Constitution, as
proclaimed in Proclamation No. 1102, is not in accordance with the provisions of
Section 1 of Article XV of the 1935 Constitution, I hold that Proclamation No. 1102
is invalid and should not be given force and eect. The proposed Constitution,
therefore, should be considered as not yet validly ratied, and so it is not in force.
The proposed Constitution may still be submitted to a plebiscite in conformity with
Section 1 of Article XV of the 1935 Constitution. Incidentally, I must state that the
1935 Constitution is still in force, and this Court is still functioning under the 1935
Constitution.
I sincerely believe that the proposed Constitution may still be submitted to the
people in an election or plebiscite held in accordance with the provisions of Section 1

of Article XV of the 1935 Constitution. In fact, as we have adverted to in this

opinion, this was the mandate of Congress when, on March 16, 1967, it passed
Resolution No. 2 calling a convention to propose amendments to the 1935
Constitution. The Court may take judicial notice of the fact that the President of the
Philippines has reassured the nation that the government of our Republic since the
declaration of martial law is not a revolutionary government, and that he has been
acting all the way in consonance with his powers under the Constitution. The people
of this Republic has reason to be happy because, according to the President, we still
have a constitutional government. It being my view that the 1935 Constitution is
still in force, I believe Congress may still convene and pass a law calling for an
election at which the Constitution proposed by the 1971 Constitutional Convention
will be submitted to the people for their ratication or rejection. A plebiscite called
pursuant to Section 1 of Article XV of the 1935 Constitution is an assurance to our
people that we still have in our country the Rule of Law, and that the democratic
system of government that has been implanted in our country by the Americans,
and which has become part of our social and political fabric, is still a reality.
The views that I have expressed in this opinion are inspired by a desire on my part
to bring about stability in the democratic and constitutional system in our country. I
feel that if this Court would give its imprimatur to the ratication of the proposed
Constitution, as announced in Proclamation No. 1102, it being very clear that the
provisions of Section 1 of Article XV of the 1935 Constitution had not been complied
with, We will be opening the gates for a similar disregard of the Constitution in the
future. What I mean is that if this Court now declares that a new Constitution is
now in force because the members of the citizens assemblies had approved said new
Constitution, although that approval was not in accordance with the procedure and
the requirements prescribed in the 1935 Constitution, it can happen again in some
future time that some amendments to the Constitution may be adopted, even in a
manner contrary to the existing Constitution and the law, and then said proposed
amendment is submitted to the people in any manner and what will matter is that
a basis is claimed that there was approval by the people. There will not be stability
in our constitutional system, and necessarily no stability in our government. As a
member of this Court I only wish to contribute my humble eorts to prevent the
happening of such a situation in the future.
It appearing to me that the announced ratication of the proposed Constitution
through the voting in the citizens assemblies is a clear violation of the 1935
Constitution, what I say in this opinion is simply an endeavor on my part to be true
to my oath of oce to defend and support the 1935 Constitution. I am inspired by
what the great jurist and statesman, Jose P. Laurel, said:
"Let our judges be as it were the vestal keepers of the purity and sanctity of
our Constitution, and the protection and vindication of popular rights will be
safe and secure in their reverential guardianship."

I only wish to help prevent, if I can, democracy and the liberties of our people from
vanishing in our land, because, as Justice George Sutherland of the U. S. Supreme

Court said:
"(t)he saddest epitaph which can be carved in memory of a vanished liberty
is that it was lost because its possessors failed to stretch forth a saving
hand while yet there was time."

I concur fully with the personal views expressed by the Chief Justice in the opinion
that he has written in these cases. Along with him, I vote to deny the motion to
dismiss and to give due course to the petitions in these cases.
FERNANDO, J., dissenting:
No question more momentous, none impressed with such transcendental
signicance is likely to confront this Court in the near or distant future as that posed
by these petitions. For while the specic substantive issue is the validity of
Presidential Proclamation No. 1102, an adverse judgment may be fraught with
consequences that, to say the least, are far-reaching in its implications. As stressed
by respondents, "what petitioners really seek to invalidate is the new Constitution."
1 Strict accuracy would of course qualify such statement that what is in dispute, as
noted in the opinion of the Chief Justice, goes only as far as the validity of its
ratication. It could very well be though that the ultimate outcome is not conned
within such limit, and this is not to deny that under its aegis, there have been
marked gains in the social and economic sphere, but given the premise of continuity
in a regime under a fundamental law, which itself explicitly recognizes the need for
change and the process for bringing it about, 2 it seems to me that the more
appropriate course is for this Court to give heed to the plea of petitioners that the
most serious attention be paid to their submission that the challenged executive act
fails to meet the test of constitutionality. Under the circumstances, with regret and
with due respect for the opinion of my brethren, I must perforce dissent. It would
follow therefore that the legal position taken by the Chief Justice as set forth with
his usual lucidity and thoroughness has, on the whole, my concurrence, subject, of
course, to reservations insofar as it contains views and nuances to which I have in
the past expressed doubts. Nonetheless, I feel that a brief expression of the reasons
for the stand I take would not be amiss.
In coping with its responsibility arising from the function of judicial review, this
Court is not expected to be an oracle given to utterances of eternal verities, but
certainly it is more than just a keen but passive observer of the contemporary
scene. It is, by virtue of its role under the separation of powers concept, involved not
necessarily as a participant in the formation of government policy, but as an arbiter
of its legality. Even then, there is realism in what Lerner did say about the American
Supreme Court as "the focal point of a set of dynamic forces which [could play]
havoc with the landmarks of the American state and determine the power
conguration of the day." 3 That is why there is this caveat. In the United States as
here, the exercise of the power of judicial review is conditioned on the necessity
that the decision of a case or controversy before it so requires. To repeat, the
Justices of the highest tribunal are not, as Justice Frankfurter made clear, "architects
of policy. They can nullify the policy of others, they are incapable of fashioning their
own solutions for social problems." 4 Nonetheless, as was stressed by Professors

Black 5 and Murphy, 6 a Supreme Court by the conclusion it reaches and the decision
it renders does not merely check the coordinate branches, but also by its approval
stamps with legitimacy the action taken. Thus in arming constitutional
supremacy, the political departments could seek the aid of the judiciary. For the
assent it gives to what has been done conduces to its better support in a regime
where the rule of law holds sway. In discharging such a rule, this Court must
necessarily take into account not only what the exigent needs of the present
demand but what may lie ahead in the unexplored and unknown vistas of the
future. It must guard against the pitfall of lack of understanding of the dominant
forces at work to seek a better life for all, especially those suering from the pangs
of poverty and disease, by a blind determination to adhere to the status quo. It
would be tragic, and a clear case of its being recreant to its trust, if the suspicion can
with reason be entertained that its approach amounts merely to a militant
vigilantism that is violently opposed to any form of social change. It follows then
that it does not suce that recourse be had only to what passes for scholarship in
the law that could be marred by inapplicable erudition and narrow legalism. Even
with due recognition of such factors, however, I cannot, for reasons to be set more
at length and in the light of the opinion of the Chief Justice, reach the same result
as the majority of my brethren. For, in the last analysis, it is my rm conviction that
the institution of judicial review speaks too clearly for the point to be missed that
ocial action, even with due allowance made for the good faith that invariably
inspires the step taken, has to face the gauntlet of a court suit whenever there is a
proper case with the appropriate parties.
1.Respondents are acting in the soundest constitutional tradition when, at the
outset, they would seek a dismissal of these petitions. For them, the question raised
is political and thus beyond the jurisdiction of this Court. Such an approach cannot
be indicted for unorthodoxy. It is implicit in the concept of the rule of law that rights
belong to the people and that government possesses powers only. Essentially then,
unless such an authority may either be predicated on express or implied grant in the
Constitution or the statutes, an exercise thereof cannot survive an inquiry as to its
validity. Respondents through Solicitor-General Mendoza would deny our
competence to proceed further. It is their view, vigorously pressed and plausibly
asserted, that since what is involved is not merely the eectivity of an amendment
but the actual coming into eect of a new constitution, the matter is not justiciable.
The immediate reaction is that such a contention is to be tested in the light of the
fundamental doctrine of separation of powers that it is not only the function but the
solemn duty of the judiciary to determine what the law is and to apply it in cases
and controversies that call for decision. 7 Since the Constitution pre-eminently
occupies the highest rung in the hierarchy of legal norms, it is in the judiciary,
ultimately this Tribunal, that such a responsibility is vested. With the 1935
Constitution containing, as above noted, an explicit article on the subject of
amendments, it would follow that the presumption to be indulged in is that the
question of whether there has been deference to its terms is for this Court to pass
upon. What is more, the Gonzales, 8 Tolentino 9 and Planas 10 cases speak
unequivocally to that eect. Nor is it a valid objection to this conclusion that what
was involved in those cases was the legality of the submission and not ratication,
for from the very language of the controlling article, the two vital steps are proposal

and ratication, which as pointed out in Dillon v. Gloss, 11 "cannot be treated as

unrelated acts, but as succeeding steps in a single endeavor." 12 Once an aspect
thereof is viewed as judicial, there would be no justication for considering the rest
as devoid of that character. It would be for me then an indefensible retreat, deriving
no justication from circumstances of weight and gravity, if this Court were to
accede to what is sought by respondents and rule that the question before us is
political.
On this point, it may not be inappropriate to refer to a separate opinion of mine in
Lansang v. Garcia. 13 Thus: "The term has been made applicable to controversies
clearly non judicial and therefore beyond its jurisdiction or to an issue involved in a
case appropriately subject to its cognizance, as to which there has been a prior
legislative or executive determination to which deference must be paid. It has
likewise been employed loosely to characterize a suit where the party proceeded
against is the President or Congress, or any branch thereof. If to be delimited with
accuracy, 'political questions' should refer to such as would under the Constitution
be decided by the people in their sovereign capacity or in regard to which full
discretionary authority is vested either in the Presidency or Congress. It is thus
beyond the competence of the judiciary to pass upon. Unless clearly falling within
the above formulation, the decision reached by the political branches whether in the
form of a congressional act or an executive order could be tested in court. Where
private rights are aected, the judiciary has no choice but to look into its validity. It
is not to be lost sight of that such a power comes into play if there be an appropriate
proceeding that may be led only after either coordinate branch has acted. Even
when the Presidency or Congress possesses plenary power, its improvident exercise
or the abuse thereof, if shown, may give rise to a justiciable controversy. For the
constitutional grant of authority is not usually unrestricted. There are limits to what
may be done and how it is to be accomplished. Necessarily then, the courts in the
proper exercise of judicial review could inquire into the question of whether or not
either of the two coordinate branches has adhered to what is laid down by the
Constitution. The question thus posed is judicial rather than political." 14 The view
entertained by Professor Dodd is not too dissimilar. For him such a term "is
employed to designate certain types of functions committed to the political organs
of government (the legislative and executive departments, or either of them), and
not subject to judicial investigation." 15 After a thorough study of American judicial
decisions, both federal and state, he could conclude: "The eld of judicial
nonenforceability is important, but is not large when contrasted with the whole
body of written constitutional texts. The exceptions from judicial enforceability fall
primarily within the eld of public or governmental interests." 16 Nor was Professor
Weston's formulation any dierent. As was expressed by him: "Judicial questions, in
what may be thought the more useful sense, are those which the sovereign has set
to be decided in the courts. Political questions, similarly, are those which the
sovereign has entrusted to the so called political departments of government or has
reserved to be settled by its own extra-governmental action." 17 What appears
undeniable then both from the standpoint of Philippine as well as American
decisions is the care and circumspection required before the conclusion is warranted
that the matter at issue is beyond judicial cognizance, a political question being
raised.

2.The submission of respondents on this subject of political question, admittedly one

of complexity and importance, deserves to be pursued further. They would derive
much aid and comfort from the writings of both Professor Bickel 18 of Yale and
Professor Freund 19 of Harvard, both of whom in turn are unabashed admirers of
Justice Brandeis. Whatever be the merit inherent in their lack of enthusiasm for a
more active and positive role that must be played by the United States Supreme
Court in constitutional litigation, it must be judged in the light of our own history. It
cannot be denied that from the well nigh four decades of constitutionalism in the
Philippines, even discounting an almost similar period of time dating from the
inception of American sovereignty, there has sprung a tradition of what has been
aptly termed as judicial activism. Such an approach could be traced to the
valedictory address before the 1935 Constitutional Convention of Claro M. Recto. He
spoke of the trust reposed in the judiciary in these words: "It is one of the paradoxes
of democracy that the people at times place more condence in instrumentalities of
the State other than those directly chosen by them for the exercise of their
sovereignty." 20 It would thus appear that even then this Court was expected not to
assume an attitude of timidity and hesitancy when a constitutional question is
posed. There was the assumption of course that it would face up to such a task,
without regard to political considerations and with no thought except that of
discharging its trust. Witness these words of Justice Laurel in an early landmark
case, People v. Vera, 21 decided in 1937: "If it is ever necessary for us to make any
vehement armance during this formative period of our political history, it is that
we are independent of the Executive no less than of the Legislative department of
our government independent in the performance of our functions, undeterred by
any consideration, free from politics, indierent to popularity, and unafraid of
criticism in the accomplishment of our sworn duty as we see it and as we
understand it." 22 The hope of course was that such assertion of independence and
impartiality was not mere rhetoric. That is a matter more appropriately left to
others to determine. It suces to state that what elicits approval on the part of our
people of a judiciary ever alert to inquire into alleged breaches of the fundamental
law is the realization that to do so is merely to do what is expected of it and that
thereby there is no invasion of spheres appropriately belonging to the political
branches. For it needs to be kept in kind always that it can act only when there is a
suit with proper parties before it, wherein rights appropriate for judicial
enforcement are sought to be vindicated. Then, too, it does not approach
constitutional questions with dogmatism or apodictic certainty nor view them from
the shining clis of perfection. This is not to say though that it is satised with an
empiricism untroubled by the search for jural consistency and rational coherence. A
balance has to be struck. So juridical realism requires. Once allowance is made that
for all its care and circumspection this Court is manned by human beings fettered by
fallibility, but nonetheless earnestly and sincerely striving to do right, the public
acceptance of its vigorous pursuit of the task of assuring that the Constitution be
obeyed is easy to understand. It has not in the past shirked its responsibility to
ascertain whether there has been compliance with and delity to constitutional
requirements. Such is the teaching of a host of cases from Angara v. Electoral
Commission 23 to Planas v. Commission on Elections. 24 It should not start now. It

should continue to exercise its jurisdiction, even in the face of a plausible but not
sufficiently persuasive insistence that the matter before it is political.
Nor am I persuaded that the reading of the current drift in American legal
scholarship by the Solicitor-General and his equally able associates presents the
whole picture. On the question of judicial review, it is not a case of black and white;
there are shaded areas. It goes too far, in my view, if the perspective is one of
dissatisfaction, with its overtones of distrust. This expression of disapproval has not
escaped Dean Rostow of Yale, who began one of his most celebrated legal essays.
The Democratic Character of Judicial Review, thus: "A theme of uneasiness, and
even of guilt, colors the literature about judicial review. Many of those who have
talked, lectured, and written about the Constitution have been troubled by a sense
that judicial review is undemocratic." 25 He went on to state: "Judicial review, they
have urged, is an undemocratic shoot on an otherwise respectable tree. It should be
cut o, or at least kept pruned and inconspicuous." 26 His view was precisely the
opposite. Thus: "The power of constitutional review, to be exercised by some part of
the government, is implicit in the conception of a written constitution delegating
limited powers. A written constitution would promote discord rather than order in
society if there were no accepted authority to construe it, at the least in cases of
conicting action by dierent branches of government or of constitutionally
unauthorized governmental action against individuals. The limitation and
separation of powers, if they are to survive, require a procedure for independent
mediation and construction to reconcile the inevitable disputes over the boundaries
of constitutional power which arise in the process of government." 27 More than
that, he took pains to emphasize: "Whether another method of enforcing the
Constitution could have been devised, the short answer is that no such method has
developed. The argument over the constitutionality of judicial review has long since
been settled by history. The power and duty of the Supreme Court to declare
statutes or executive action unconstitutional in appropriate cases is part of the
living Constitution. 'The course of constitutional history,' Mr. Justice Frankfurter
recently remarked, 'has cast responsibilities upon the Supreme Court which it would
be "stultication" for it to evade." 28 or is it only Dean Rostow who could point to
Fraukfurter, reputed to belong to the same school of thought opposed to judicial
activism, if not its leading advocate during his long stay in the United States
Supreme Court, as one fully cognizant of the stigma that attaches to a tribunal
which neglects to meet the demands of judicial review. There is a statement of
similar import from Professor Mason: "In Stein v. New York Frankfurter remarked,
somewhat self-consciously perhaps, that the 'duty of deference cannot be allowed
imperceptibly to slide into abdication.'" 29 Professor Konefsky, like Dean Rostow,
could not accept the characterization of judicial review as undemocratic. Thus in his
study of Holmes and Brandeis, the following appears: "When it is said that judicial
review is an undemocratic feature of our political system, it ought also to be
remembered that the architects of that system did not equate constitutional
government with unbridled majority rule. Out of their concern for political stability
and security for private rights, . . ., they designed a structure whose keystone was to
consist of barriers to the untrammeled exercise of power by any group. They
perceived no contradiction between effective government and constitutional cheeks.
To James Madison, who may legitimately be regarded as the philosopher of the

Constitution, the scheme of mutual restraints was the best answer to what he
viewed as the chief problem in erecting a system of free representative
government: 'In framing a government which is to be administered by men over
men, the great diculty lies in this: you must rst enable the government to
control the governed; and in the next place oblige it to control itself.'" 30
There is thus an inevitability to the owering of judicial review. Could it be that the
tone of discontent apparent in the writings of eminent authorities on the subject
evince at the most fears that the American Supreme Court might overstep the
bounds allotted to the judiciary? It cannot be a denial of the tness of such
competence being vested in judges and of their being called upon to fulll such a
trust whenever appropriate to the decision of a case before them. That is why it has
been correctly maintained that notwithstanding the absence of any explicit
provision in the fundamental law of the United States Constitution, that
distinguished American constitutional historian, Professor Corwin, could rightfully
state that judicial review "is simply incidental to the power of courts to interpret the
law, of which the Constitution is part, in connection with the decision of cases." 31
This is not to deny that there are those who would place the blame or the credit,
depending upon one's predilection, on Marshall's epochal opinion in Marbury v.
Madison. 32 Curtis belonged to that persuasion. As he put it: "The problem was given
no answer by the Constitution. A hole was left where the Court might drive in the
peg of judicial supremacy, if it could. And that is what John Marshall did." 33 At any
rate there was something in the soil of American juristic thought resulting in this
tree of judicial power so precariously planted by Marshall striking deep roots and
showing wonderful vitality and hardiness. It now dominates the American legal
scene. Through it, Chief Justice Hughes, before occupying that exalted position,
could state in a lecture: "We are under a Constitution, but the Constitution is what
the judges say it is . . ." 34 The above statement is more than just an aphorism that
lends itself to inclusion in judicial anthologies or bar association speeches. It could
and did provoke from Justice Jackson, an exponent of the judicial restraint school
thought, this meaningful query: "The Constitution nowhere provides that it shall be
what the judges say it is. How, then, did it come about that the statement not only
could be made but could become current as the most understandable and
comprehensive summary of American constitutional law?" 35 It is no wonder that
Professor Haines could pithily and succinctly sum up the place of the highest
American tribunal in the scheme of things in this wise: "The Supreme Court of the
United States has come to be regarded as the unique feature of the American
governmental system." 36 Let me not be misunderstood. There is here no attempt
to close one's eyes to a discernible tendency on the part of some distinguished
faculty minds to look askance at what for them may be inadvisable extension of
judicial authority. For such indeed is the case as reected in two leading cases of
recent vintage, Baker v. Carr, 37 decided in 1962 and Powell v. MacCormack, 38 in
1969, both noted in the opinion of the Chief Justice. The former disregarded the
warning of Justice Frankfurter in Colegrove v. Green 39 about the American
Supreme Court declining jurisdiction on the question of apportionment as to do so
"would cut very deep into the very being of Congress." 40 For him, the judiciary
"ought not to enter this political thicket." Baker has since then been followed; it has
spawned a host of cases. 41 Powell, on the question of the power of a legislative

body to exclude from its ranks a person whose qualications are uncontested, for
many the very staple of what is essentially political, certainly goes even further
than the authoritative Philippine decision of Vera v. Avelino, 42 It does look then
that even in the United States, the plea for judicial self-restraint, even if given voice
by those competent in the eld of constitutional law, has fallen on deaf ears. There
is in the comments of respondents an excerpt from Professor Freund quoting from
one of his essays appearing in a volume published in 1968. It is not without interest
to note that in another paper, also included therein, he was less than assertive
about the necessity for self-restraint and apparently mindful of the claims of judicial
activism. Thus: "First of all, the Court has a responsibility to maintain the
constitutional order, the distribution of public power, and the limitations on that
power." 43 As for Professor Bickel, it has been said that as counsel for the New York
Times in the famous Vietnam papers case, 44 he was less than insistent on the
American Supreme Court exercising judicial self restraint. There are signs that the
contending forces on such question, for some an unequal contest, are now
quiescent. The fervor that characterized the expression of their respective points of
view appears to have been minimized. Not that it is to be expected that it will
entirely disappear, considering how dearly cherished are, for each group, the
convictions, prejudices one might even say, entertained. At least what once was fitly
characterized as the booming guns of rhetoric, coming from both directions, have
been muted. Of late, scholarly disputations have been centered on the standards
that should govern the exercise of the power of judicial review. In his celebrated
Holmes lecture in 1959 at the Harvard Law School, Professor Wechsler advocated as
basis for decision what he termed neutral principles of constitutional law. 45 It has
brought forth a plethora of law review articles, the reaction ranging from guarded
conformity to caustic criticism. 46 There was, to be sure, no clear call to a court in
eect abandoning the responsibility incumbent on it to keep governmental agencies
within constitutional channels. The matter has been put in temperate terms by
Professor Frank thus: "When allowance has been made for all these factors, it
nevertheless seems to me that the doctrine of political questions ought to be very
sharply conned to cases where the functional reasons justify it and that in a given
case involving its expansion there should be careful consideration also of the social
considerations which may militate against it. The doctrine has a certain specious
charm because of its nice intellectualism and because of the ne deference it
permits to expertise, to secret knowledge, and to the prerogatives of others. It
should not be allowed to grow as a merely intellectual plant." 47

It is dicult, for me at least, not to be swayed by such appraisal, coming from such
impeccable sources of the worth and signicance of judicial review in the United
States. I cannot resist the conclusion then that the views advanced on this subject
by distinguished counsel for petitioners, with Senators Lorenzo M. Taada and Jovito
Salonga at the van, rather than the advocacy of the Solicitor-General, possess the
greater weight and carry persuasion. So much then for the invocation of the political
question principle as a bar to the exercise of our jurisdiction.
3.That brings me to the issue of the validity of the ratication. The crucial point that

had to be met is whether Proclamation No. 1102 manifests delity to the explicit
terms of Article XV. There is, of course, the view not oensive to reason that a sense
of the realities should temper the rigidity of devotion to the strict letter of the text
to allow deference to its spirit to control. With due recognition of its force in
constitutional litigation, 48 if my reading of the events and the process that led to
such proclamation, so clearly set forth in the opinion of the Chief Justice, is not
inaccurate, then it cannot be confidently asserted that there was such compliance. It
would be to rely on conjectural assumptions that did founder on the rock of the
undisputed facts. Any other conclusion would, for me, require an interpretation that
borders on the strained. So it has to be if one does not lose sight of how the article
on amendments is phrased. A word, to paraphrase Justice Holmes may not be a
crystal, transparent and unchanged, but it is not, to borrow from Learned Hand, that
eminent jurist, a rubber band either. It would be unwarranted in my view then to
assert that the requirements of the 1935 Constitution have been met. There are
American decisions, 49 and they are not few in number, which require that there be
obedience to the literal terms of the applicable provision. It is understandable why it
should be thus. If the Constitution is the supreme law, then its mandate must be
fullled. No evasion is to be tolerated. Submission to its commands can be shown
only if each and every word is given meaning rather than ignored or disregarded.
This is not to deny that a recognition of the conclusive eect attached to the
electorate manifesting its will to vote armatively on the amendments proposed
poses an obstacle to the judiciary being insistent on the utmost regularity. Briey
stated, substantial compliance is enough. A great many American State decisions
may be cited in support of such a doctrine. 50
Even if the assumption be indulged in that Article XV is not phrased in terms too
clear to be misread, so that this Court is called upon to give meaning and
perspective to what could be considered words of vague generality, pregnant with
uncertainty, still whatever obscurity it possesses is illumined when the light of the
previous legislation is thrown on it. In the rst Commonwealth Act, 51 submitting to
the Filipino people for approval or disapproval certain amendments to the original
ordinance appended to the 1935 Constitution, it was made clear that the election
for such purpose was to "be conducted in conformity with the provisions of the
Election Code insofar as the same may be applicable." 52 Then came the statute, 53
calling for the plebiscite on the three 1940 amendments providing for the plebiscite
on the three 1930 amendments providing for a bicameral Congress or a Senate and
a House of Representatives to take the place of a unicameral National Assembly, 54
reducing the term of the President to four years but allowing his re-election with
the limitation that he cannot serve for more than eight consecutive years, 55 and
creating an independent Commission on Elections. 56 Again, it was expressly
provided that the election "shall be conducted in conformity with the provisions of
the Election Code in so far as the same may be applicable." 57 The approval of the
present parity amendment was by virtue of a Republic Act 58 which specically
made applicable the then Election Code. 59 There is a similar provision in the
legislation, 60 which in cotemplation of the 1971 Constitutional Convention, saw to
it that there be an increase in the membership of the House of Representatives to a
maximum of one hundred eighty and assured the eligibility of senators and
representatives to become members of such constituent body without forfeiting

their seats, as proposed amendments to be voted on in the 1967 elections. 61 That is

the consistent course of interpretation followed by the legislative branch. It is most
persuasive, if not controlling. The restraints thus imposed would set limits to the
Presidential action taken, even on the assumption that either as an agent of the
Constitutional Convention or under his martial law prerogatives, he was not devoid
of power to specify the mode of ratication. On two vital points, who can vote and
how they register their will, Article XV had been given a denitive construction.
That is why I fail to see sucient justication for this Court axing the imprimatur
of its approval on the mode employed for the ratication of the revised Constitution
as reflected in Proclamation No. 1102.
4.Nor is the matter before us solely to be determined by the failure to comply with
the requirements of Article XV. Independently of the lack of validity of the
ratication of the new Constitution, if it be accepted by the people, in whom
sovereignty resides according to the Constitution, 62 then this Court cannot refuse
to yield assent to such a political decision of the utmost gravity, conclusive in its
eect. Such a fundamental principle is meaningless if it does not imply, to follow
Laski, that the nation as a whole constitutes the "single center of ultimate
reference," necessarily the possessor of that "power that is able to resolve disputes
by saying the last word." 63 If the origins of the democratic polity enshrined in the
1935 Constitution with the declaration that the Philippines is a republican state
could be traced back to Athens and to Rome, it is no doubt true, as McIver pointed
out, that only with the recognition of the nation as the separate political unit in
public law is there the juridical recognition of the people composing it "as the source
of political authority." 64 From them, as Corwin did stress, emanate "the highest
possible embodiment of human will," 65 which is supreme and must be obeyed. To
avoid any confusion and in the interest of clarity, it should be expressed in the
manner ordained by law. Even if such were not the case, however, once it is
manifested, it is to be accepted as nal and authoritative. The government which is
merely an agency to register its commands has no choice but to submit. Its ocials
must act accordingly. No agency is exempt from such a duty, not even this Court. In
that sense, the lack of regularity in the method employed to register its wishes is
not fatal in its consequences. Once the fact of acceptance by the people of a new
fundamental law is made evident, the judiciary is left with no choice but to accord it
recognition. The obligation to render it obeisance falls on the courts as well.
There are American State decisions that enunciate such a doctrine. While certainly
not controlling, they are not entirely bereft of persuasive signicance. In Miller v.
Johnson, 66 decided in 1892, it was set forth in the opinion of Chief Justice Holt that
on May 3, 1890, an act was passed in Kentucky, providing for the calling of a
convention for the purpose of framing a new constitution and the election of
delegates. It provided that before any form of constitution made by them should
become operative, it should be submitted to the voters of the state and ratied by a
majority of those voting. The constitution then in force authorized the legislature,
the preliminary steps having been taken, to call a convention "for the purpose of
readopting, amending, or changing" it but contained no provision giving the
legislature the power to require a submission of its work to a vote of the people. The
convention met in September, 1890. By April, 1891, it completed a draft of a

constitution, submitted it to a popular vote, and then adjourned until September

following. Its work was approved by a majority. When the convention reassembled,
the delegates made numerous changes in the instrument. As thus amended, it was
promulgated by the convention of September 28, 1891, as the new constitution. An
action was brought to challenge its validity. It failed in the lower court. In arming
such judgment dismissing the action, Chief Justice Holt stated: "If a set of men, not
selected by the people according to the forms of law, were to formulate an
instrument and declare it the constitution, it would undoubtedly be the duty of the
courts to declare its work a nullity. This would be revolution, and this the courts of
the existing government must resist until they are overturned by power, and a new
government established. The convention, however, was the ospring of law. The
instrument which we are asked to declare invalid as a constitution has been made
and promulgated according to the forms of law. It is a matter of current history that
both the executive and legislative branches of the government have recognized its
validity as a constitution, and are now daily doing so . . . While the judiciary should
protect the rights of the people with great care and jealousy, because this is its duty,
and also because, in times of great popular excitement, it is usually their last resort,
yet it should at the same time be careful not to overstep the proper bounds of its
power, as being perhaps equally dangerous; and especially where such momentous
results might follow as would be likely in this instance, if the power of the judiciary
permitted, and its duty requires, the overthrow of the work of the convention." 67 In
Taylor v. Commonwealth, 68 a 1903 decision, it was contended that the Virginia
Constitution proclaimed in 1902 is invalid as it was ordained and promulgated by
the convention without being submitted for ratication or rejection by the people.
The Court rejected such a view. As stated in the opinion of Justice Harrison: "The
Constitution of 1902 was ordained and proclaimed by a convention duly called by
direct vote of the people of the state to revise and amend the Constitution of 1869.
The result of the work of the convention has been recognized, accepted, and acted
upon as the only valid Constitution of the state by the Governor in swearing delity
to it and proclaiming it, as directed thereby; by the Legislature in its formal ocial
act adopting a joint resolution, July 15, 1902, recognizing the Constitution ordained
by the convention which assembled in the city of Richmond on the 12th day of June,
1901, as the Constitution of Virginia; by the individual oaths of its members to
support it, and by enforcing its provisions; and by the people in their primary
capacity by peacefully accepting it and quiescing in it, by registering as voters under
it to the extent of thousands throughout the state, and by voting, under its
provisions, at a general election for their representatives in the Congress of the
United States. The Constitution having been thus acknowledged and accepted by
the ocers administering the government and by the people of the state, and there
being no government in existence under the Constitution of 1869 opposing or
denying its validity, we have no diculty in holding that the Constitution in
question, which went into eect at noon on the 10th day of July, 1902, is the only
rightful, valid, and existing Constitution of this state, and that to it all the citizens of
Virginia owe their obedience and loyal allegiance." 69

It cannot be plausibly asserted then that premises valid in law are lacking for the

claim that the revised Constitution has been accepted by the Filipino people. What
is more, so it has been argued, it is not merely a case of its being implied. Through
the Citizens Assemblies, there was a plebiscite with the result as indicated in
Proclamation No. 1102. From the standpoint of respondents then, they could allege
that there was more than just mere acquiescence by the sovereign people. Its will
was thus expressed formally and unmistakably. It may be added that there was
nothing inherently objectionable in the informal method followed in ascertaining its
preference. Nor is the fact that Filipinos of both sexes above the age of fteen were
given the opportunity to vote to be deplored. The greater the base of mass
participation, the more there is fealty to the democratic concept. It does logically
follow likewise that all such circumstances being conceded, then no justiciable
question may be raised. This Court is to respect what had thus received the people's
sanction. That is not for me though the whole of it. Further scrutiny even then is
not entirely foreclosed. There is still an aspect that is judicial, an inquiry may be had
as to whether such indeed was the result. This is no more than what the courts do
in election cases. There are other factors to bear in mind. The fact that the President
so certied is well-nigh conclusive. There is in addition the evidence owing from
the conditions of peace and stability. There thus appears to be conformity to the
existing order of things. The daily course of events yields such a conclusion. What is
more, the ocials under the 1935 Constitution, including practically all
Representatives and a majority of the Senators, have signied their assent to it. The
thought persists, however, that as yet sucient time has not elapsed to be really
certain.
Nor is this all. There is for me an obstacle to the petitions being dismissed for such
ascertainment of popular will did take place during a period of martial law. It would
have been dierent had there been that freedom of debate with the least
interference, thus allowing a free market of ideas. If it were thus, it could be truly
said that there was no barrier to liberty of choice. It would be a clear-cut decision
either way. One could be certain as to the fact of the acceptance of the new or of
adherence to the old. This is not to deny that votes are cast by individuals with their
personal concerns uppermost in mind, worried about their immediate needs and
captive to their existing moods. That is inherent in any human institution, much
more so in a democratic polity. Nor is it open to any valid objection because in the
nal analysis the state exists for the individuals who in their collectivity compose it.
Whatever be their views, they are entitled to respect. It is dicult for me, however,
at this stage to feel secure in the conviction that they did utilize the occasion
aorded to give expression to what was really in their hearts. This is not to imply
that such doubt could not be dispelled by evidence to the contrary. If the petitions
be dismissed however, then such opportunity is forever lost.
5.With the foregoing legal principles in mind, I nd myself unable to join the ranks
of my esteemed brethren who vote for the dismissal of these petitions. I cannot
yield an armative response to the plea of respondents to consider the matter
closed, the proceedings terminated once and for all. It is not an easy decision to
reach. It has occasioned deep thought and considerable soul-searching. For there are
countervailing considerations that exert a compulsion not easy to resist. It can be
asserted with truth, especially in the eld of social and economic rights, that with

the revised Constitution, there is an auspicious beginning for further progress. Then
too it could resolve what appeared to be the deepening contradictions of political
life, reducing at times governmental authority to near impotence and imparting a
sense of disillusionment in democratic processes. It is not too much to say therefore
that there had indeed been the revision of a fundamental law to vitalize the very
values out of which democracy grows. It is one which has all the earmarks of being
responsive to the dominant needs of the times. It represents an outlook cognizant of
the tensions of a turbulent era that is the present. That is why for some what was
done represented an act of courage and faith, coupled with the hope that the
solution arrived at is a harbinger of a bright and rosy future.
It is such a comfort then that even if my appraisal of the situation had commanded
a majority, there is not, while these lawsuits are being further considered, the least
interference with the executive department. The President in the discharge of all his
functions is entitled to obedience. He remains the commander-in-chief with all the
constitutional power it implies. Public ocials can go about their accustomed tasks
in accordance with the revised Constitution. They can pursue the even tenor of their
ways. They are free to act according to its tenets. That was so these past few weeks,
even after that petitions were led. There was not at any time any thought of any
restraining order. So it was before. That is how things are expected to remain even
if the motions to dismiss were not granted. It might be asked though, suppose the
petition should prevail? What then? Even so, the decision of this Court need not be
executory right away. Such a disposition of a cast before this Court is not novel.
That was how it was done in the Emergency Powers Act controversy. 70 Once
compliance is had with the requirements of Article XV of the 1935 Constitution, to
assure that the coming force of the revised charter is free from any taint of
infirmity, then all doubts are set at rest.
For some, to so view the question before us is to be caught in a web of unreality, to
cherish illusions that cannot stand the test of actuality. What is more, it may give
the impression of reliance on what may, for the practical man of aairs, be no more
than gossamer distinctions and sterile renements unrelated to events. That may
be so, but I nd it impossible to transcend what for me are the implications of
traditional constitutionalism. This is not to assert that an occupant of the bench is
bound to apply with undeviating rigidity doctrines which may have served their day.
He could at times even look upon them as mere scribblings in the sands to be
washed away by the advancing tides of the present. The introduction of novel
concepts may be carried only so far though. As Cardozo put the matter: "The judge,
even when he is free, is still not wholly free. He is not to innovate at pleasure. He is
not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of
goodness. He is to draw his inspiration from consecrated principles. He is not to yield
to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a
discretion informed by tradition, methodized by analogy, disciplined by system, and
subordinated to 'the primordial necessity of order in the social life.' Wide enough in
all conscience is the eld of discretion that remains." 71 Moreover what made it
dicult for this Court to apply settled principles, which for me have not lost their
validity, is traceable to the fact that the revised Constitution was made to take
eect immediately upon ratication. If a period of time were allowed to elapse

precisely to enable the judicial power to be exercised, no complication would have

arisen. Likewise, had there been only one or two amendments, no such problem
would be before us. That is why I do not see sucient justication for the
orthodoxies of constitutional law not to operate.
Even with full realization then that the approach pursued is not all that it ought to
have been and the process of reasoning not without its shortcomings, the basic
premises of a constitutional democracy, as I understand them and as set forth in the
preceding pages, compel me to vote the way I did.
TEEHANKEE, J., dissenting:
The masterly opinion of the Chief Justice wherein he painstakingly deals with the
momentous issues of the cases at bar in all their complexity commands my
concurrence.
I would herein make an exposition of the fundamental reasons and considerations
for my stand.
The unprecedented and precedent-setting issue submitted by petitioners for the
Court's resolution is the validity and constitutionality of Presidential Proclamation
No. 1102 issued on January 17, 1973, certifying and proclaiming that the
Constitution proposed by the 1971 Constitutional Convention "has been ratied by
an overwhelming majority of all the votes cast by the members of all the Barangays
(Citizens Assemblies) throughout the Philippines, and has thereby come into effect."
More specically, the issue submitted is whether the purported ratication of the
proposed Constitution by means of the Citizens Assemblies has substantially
complied with the mandate of Article XV of the existing Constitution of 1935 that
duly proposed amendments thereto, in toto or parts thereof, "shall be valid as part
of this Constitution when approved by a majority of the votes cast at an election at
which the amendments are submitted to the people for their ratification." 1
A necessary corollary issue is whether the purported ratication of the proposed
Constitution as signed on November 30, 1972 by the 1971 Constitutional
Convention may be said also to have substantially complied with its own mandate
that "(T)his Constitution shall take eect immediately upon its ratification by a
majority of the votes cast in a plebiscite called for the purpose and except as herein
provided, shall supersede the Constitution of Nineteen hundred and thirty-ve and
all amendments thereto." 2

Respondents contend that "(A)lthough apparently what is sought to be annulled is

Proclamation No. 1102, what petitioners really seek to invalidate is the new
Constitution", and their actions must be dismissed, because:
"the Court may not inquire into the validity of the procedure for
ratification" which is "political in character" and that what is sought to be
invalidated is not an act of the President but of the people:

 "(T)he fact of approval of the new Constitution by an overwhelming

majority of the votes cast as declared and certified in Proclamation No. 1102
is conclusive on the courts;
"Proclamation No. 1102 was issued by the President in the exercise of
legislative power under martial law . . . Alternatively, or contemporaneously,
he did so as 'agent' of the Constitutional Convention;"
"alleged defects , such as absence of secret voting, enfranchisement of
persons less than 21 Years, non supervision (by) the Comelec are matters
not required by Article XV of the 1935 Constitution"; (sic)
"after ratication, whatever defects there might have been in the
procedure are overcome and mooted (and muted) by the fact of
ratification"; and
"(A)ssuming nally that Article XV of the 1935 Constitution was not
strictly followed, the ratication of the new Constitution must nonetheless be
respected. For the procedure outlined in Article XV was not intended to be
exclusive of other procedures, especially one which contemplates popular
and direct participation of the citizenry . . ." 3

To test the validity of respondents' submittal that the Court, in annulling

Proclamation No. 1102 would really be "invalidating the new Constitution", the
terms and premises of the issues have to be defined.
Respondents themselves assert that "Proclamation No. 1102 .
. . is plainly merely declaratory of the fact that the 1973 Constitution
has been ratified and has come into force." 4
The measure of the fact of ratication is Article XV of the 1935
Constitution. This has been consistently held by the Court in the
Gonzales : 5 and Tolentino 6 cases.
In the Tolentino case, this Court emphasized "that the
provisions of Section 1 of Article XV of the Constitution, dealing with the
procedure or manner of amending the fundamental law are binding
upon the Convention and the other departments of the government. It
must be added that . . . they are no less binding upon the people." 7
In the same Tolentino case, this Court further proclaimed that
"as long as any amendment is formulated and submitted under the
aegis of the present Charter, any proposal for such amendment which
is not in conformity with the letter, spirit and intent of the Charter for
effecting amendments, cannot receive the sanction of this Court." 8
As continues to be held by a majority of this Court, proposed
amendments to the Constitution "should be ratied in only one way,
that is, in an election or plebiscite held in accordance with law and
participated in only by qualied and duly registered voters" 9 and under
the supervision of the Commission on Elections. 10

 Hence, if the Court declares Proclamation 1102 null and void

because on its face, the purported ratication of the proposed
Constitution has not faithfully nor substantially observed nor complied
with the mandatory requirements of Article XV of the (1935)
Constitution, it would not he "invalidating" the proposed new
Constitution but would be simply declaring that the announced fact of
ratication thereof by means of the Citizens Assemblies referendums
do es not pass the constitutional test and that the proposed new
Constitution has not constitutionally come into existence.
Since Proclamation 1102 is acknowledged by respondent to be
"plainly merely declaratory" of the disputed fact of ratication, they
cannot assume the very fact to be established and beg the issue by
citing the self-same declaration as proof of the purported ratication
therein declared.

What complicates the cases at bar is the fact that the proposed 1972 Constitution
was enforced as having immediately taken eect upon the issuance on January 17,
1973 of Proclamation 1102 and the question of whether "confusion and disorder in
government aairs would (not) result" from a judicial declaration of nullity of the
purported ratification is raised by the Solicitor-General on behalf of respondents.
A comparable precedent of great crisis proportions is found in the Emergency Powers
cases, 11 wherein the Court in its Resolution of September 16, 1949 after judgment
was initially not obtained on August 26, 1949 for lack of the required six (6) votes,
nally declared in eect that the pre-war emergency powers delegated by Congress
to the President, under Commonwealth Act 671 in pursuance of Article VI, section
26 of the Constitution, had ceased and became inoperative at the latest in May,
1946 when Congress met in its first regular session on May 25, 1946.
Then Chief Justice Manuel V. Moran recited the great interests and important rights
that had arisen under executive orders "issued in good faith and with the best of
intentions by three successive Presidents, and some of them may have already
produced extensive eects on the life of the nation" in the same manner as may
have arisen under the bona de acts of the President now in the honest belief that
the 1972 Constitution had been validly ratied by means of the Citizens Assemblies
referendums and indicated the proper course and solution therefor, which were
duly abided by and confusion and disorder as well as harm to public interest and
innocent parties thereby avoided as follows:
"Upon the other hand, while I believe that the emergency powers had
ceased in June 1945, I am not prepared to hold that all executive orders
issued thereafter under Commonwealth Act No. 671, are per se null and
void. It must he borne in mind that these executive orders had been issued
in good faith and with the best of intentions by three successive Presidents,
and some of them may have already produced extensive eects in the life of
the nation. We have, for instance, Executive Order No. 73, issued on
November 12, 1945, appropriating the sum of P6,750,000 for public works;
Executive Order No. 86, issued on January 7, 1946, amending a previous
order regarding the organization of the Supreme Court; Executive Order No.

89, issued on January 1, 1946, reorganizing the Courts of First Instance;

Executive Order No. 184, issued on November 19, 1948, controlling rice and
palay to combat hunger; and other executive orders appropriating funds for
other purposes. The consequences of a blanket nullication of all these
executive orders will be unquestionably serious and harmful. And I hold that
before nullifying them, other important circumstances should be inquired
into, as for instance, whether or not they have been ratied by Congress
expressly or impliedly, whether their purposes have already been
accomplished entirely or partially, and in the last instance, to what extent;
acquiescence of litigants; de facto ocers; acts and contracts of parties
acting in good faith; etc. It is my opinion that each executive order must be
viewed in the light of its peculiar circumstances, and , if necessary and
possible, before nullifying it, precautionary measures should be taken to
avoid harm to public interest and innocent parties." 12

Initially, then Chief Justice Moran voted with a majority of the Court to grant the
Araneta and Guerrero petitions holding null and void the executive orders on rentals
and export control but to defer judgment on the Rodriguez and Barredo petitions for
judicial declarations of nullity of the executive orders appropriating the 1949-1950
scal year budget for the government and P6 million for the holding of the 1949
national elections. After rehearing, he further voted to also declare null and void the
last two executive orders appropriating funds for the 1949 budget and elections,
completing the "sucient majority" of six against four dissenting justices "to
pronounce a valid judgment on that matter." 13
Then Chief Justice Moran, who penned the Court's majority resolution, explained his
vote for annulment despite the great diculties and possible "harmful
consequences" in the following passage, which bears re-reading:
"However, now that the holding of a special session of Congress for the
purpose of remedying the nullity of the executive orders in question appears
remote and uncertain, I am compelled to, and do hereby, give my unqualied
concurrence in the decision penned by Mr. Justice Tuason declaring that
these two executive orders were issued without authority of law.
"While in voting for a temporary deferment of the judgment I was moved by
the belief that positive compliance with the Constitution by the other
branches of the Government, which is our prime concern in all these cases,
would be eected, and indenite deferment will produce the opposite result
because it would legitimize a prolonged or permanent evasion of our organic
law. Executive orders which are, in our opinion, repugnant to the
Constitution, would be given permanent life, opening the way or practices
which may undermine our constitutional structure.
"The harmful consequences which, as I envisioned in my concurring opinion,
would come to pass should the said executive orders by immediately
declared null and void are still real. They have not disappeared by reason of
the fact that a special session of Congress is not now forthcoming.
However, the remedy now lies in the hands of the Chief Executive and of
Congress, for the Constitution vests in the former the power to call a special

session should the need for one arise, and in the latter, the power to pass a
valid appropriations act.
"That Congress may again fail to pass a valid appropriation act is a remote
possibility, for under the circumstances is fully realizes its great
responsibility of saving the nation from breaking down; and furthermore, the
President in the exercise of his constitutional powers may, if he so desires,
compel Congress to remain in special session till it approves the legislative
measures most needed by the country.

"Democracy is on trial in the Philippines, and surely it will emerge victorious

as a permanent way of life in this country, if each of the great branches of
the Government, within its own allocated sphere, complies with its own
constitutional duty, uncompromisingly and regardless of difficulties.
"Our Republic is still young, and the vital principles underlying its organic
structure should be maintained rm and strong, hard as the best of steel,
so as to insure its growth and development along solid lines of a stable and
vigorous democracy." 14

The late Justice Pedro Tuason who penned the initial majority judgment (declaring
null and void the rental and export control executive orders) likewise observed that
"(T)he truth is that under our concept of constitutional government, in times of
extreme perils more than in normal circumstances 'the various branches, executive,
legislative, and judicial,' given the ability to act, are called upon 'to perform the
duties and discharge the responsibilities committed to them respectively.'" 15
It should be duly acknowledged that the Court's task of discharging its duty and
responsibility has been considerably lightened by the President's public
manifestation of adherence to constitutional processes and of working within the
proper constitutional framework as per his press conference of January 20, 1973,
wherein he stated that "(T)he Supreme Court is the nal arbiter of the Constitution.
It can and will probably determine the validity of this Constitution. I did not want to
talk about this because actually there is a case pending before the Supreme Court.
But suce it to say that I recognize the power of the Supreme Court. With respect
to appointments, the matter falls under a general provision which authorizes the
Prime Minister to appoint additional members to the Supreme Court. Until the
matter of the new Constitution is decided, I have no intention of utilizing that
power." 16
Thus, it is that as in an analogous situation wherein the state Supreme Court of
Mississippi held that the questions of whether the submission of the proposed
constitutional amendment of the State Constitution providing for an elective,
instead of an appointive, judiciary and whether the proposition was in fact adopted,
were justiciable and not political questions, we may echo the words therein of Chief
Justice Whiteld that "(W)e do not seek a jurisdiction not imposed upon us by the
Constitution. We could not, if we would, escape the exercise of that jurisdiction
which the Constitution has imposed upon us. In the particular instance in which we

are now acting, our duty to know what the Constitution of the state is, and in
accordance with our oaths to support and maintain it in its integrity, imposed on us
a most dicult and embarrassing duty, one which we have not sought, but one
which, like all others, must be discharged.'" 17
In confronting the issues at bar, then, with due regard for my colleagues' contrary
views, we are faced with the hard choice of maintaining a rm and strict perhaps,
even rigid stand that the Constitution is a "superior paramount law,
unchangeable by ordinary means" save in the particular mode and manner
prescribed therein by the people, who, in Cooley's words, so "tied up (not only) the
hands of their ocial agencies, but their own hands as well" 18 in the exercise of
their sovereign will or a liberal and exible stand that would consider compliance
with the constitutional article on the amending process as merely directory rather
than mandatory.
The rst choice of a strict stand, as applied to the cases at bar, signies that the
Constitution may be amended in toto or otherwise exclusively "by approval by a
majority of the votes cast an election at which the amendments are submitted to
the people for their ratication", 19 participated in only by qualied and duly
registered voters twenty-one years of age or over 20 and duly supervised by the
Commission on Elections, 21 in accordance with the cited mandatory constitutional
requirements.
The alternative choice of a liberal stand would permit a disregard of said
requirements on the theory urged by respondents that "the procedure outlined in
Article XV was not intended to be exclusive of other procedures especially one which
contemplates popular and direct participation of the citizenry", 22 that the
constitutional age and literacy requirements and other statutory safeguards for
ascertaining the will of the majority of the people may likewise be changed as
"suggested, if not prescribed, by the people (through the Citizens Assemblies)
themselves", 23 and that the Comelec is constitutionally "mandated to oversee . . .
elections (of public officers) and not plebiscites." 24
To paraphrase U.S. Chief Justice John Marshall who rst declared in the historic
1803 case of Marbury vs. Madison 25 the U.S. Supreme Court's power of judicial
review and to declare void laws repugnant to the Constitution, there is no middle
ground between these two alternatives. As Marshall expounded it: "(T)he
Constitution is either a superior paramount law, unchangeable by ordinary means,
or it is on a level with ordinary legislative acts, and, like other acts, is alterable
when the legislature shall please to alter it. If the former part of the alternative be
true, then a legislative act, contrary to the Constitution, is not law; if the latter part
be true, then written constitutions are absurd attempts on the part of a people, to
limit a power, in its own nature, illimitable."
As was to be restated by Justice Jose P. Laurel a century and a third later in the 1936
landmark case of Angara vs. Electoral Commission, 26 "(T)he Constitution sets forth
in no uncertain language the restrictions and limitations upon governmental powers
and agencies. If these restrictions and limitations are transcended it would be

inconceivable if the Constitution had not provided for a mechanism by which to

direct the course of government along constitutional channels, for then the
distribution of powers would be mere verbiage, the bill of rights mere expressions of
sentiment, and the principles of good government mere political apothegms.
Certainly, the limitations of good government and restrictions embodied in our
Constitution are real as they should be in any living Constitution."
Justice Laurel pointed out that in contrast to the United States Constitution, the
Philippine Constitution as "a denition of the powers of government" placed upon
the judiciary the great burden of "determining the nature, scope and extent of such
powers" and stressed that "when the judiciary mediates to allocate constitutional
boundaries, it does not assert any superiority over the other departments . . . but
only asserts the solemn and sacred obligation entrusted to it by the Constitution to
determine conicting claims of authority under the Constitution and to establish for
the parties in an actual controversy the rights which the instrument secures and
guarantees to them."
II
Marshall was to utter much later in the equally historic 1819 case of McCulloch vs.
Maryland 27 the "climactic phrase," 28 "we must never forget that it is a constitution
we are expounding," termed by Justice Frankfurter as "the single most important
utterance in the literature of constitutional law most important because most
comprehensive and comprehending." 29 This enduring concept to my mind
permeated this Court's exposition and rationale in the hallmark case of Tolentino,
wherein we rejected the contentions on the Convention's behalf "that the issue . . .
is a political question and that the Convention being a legislative body of the
highest order is sovereign, and as such, its acts impugned by petitioner are beyond
the control of Congress and the Courts." 30
This Court therein made its unequivocal choice of strictly requiring faithful (which
really includes substantial) compliance with the mandatory requirements of the
amending process.
1.In denying reconsideration of our judgment of October 16, 1971 prohibiting the
submittal in an advance election of the 1971 Constitutional Convention's Organic
Resolution No. 1 proposing to amend Article V, section 1 of the Constitution by
lowering the voting age to 18 years (vice 21 years) 31
2.This Court held in Tolentino that:
". . . as to matters not related to its internal operation and the performance
of its assigned mission to propose amendments to the Constitution, the
Convention and its ocers and members are all subject to all the provisions
of the existing Constitution. Now We hold that even as to its latter task of
proposing amendments to the Constitution, it is subject to the provisions of
Section 1 of Article XV. This must be so, because it is plain to Us that the
framers of the Constitution took care that the process of amending the
same should not be undertaken with the same ease and facility in changing

an ordinary legislation. Constitution making is the most valued power,

second to none, of the people in a constitutional democracy such as the one
our founding fathers have chosen for this nation, and which we of the
succeeding generations generally cherish. And because the Constitution
aects the lives, fortunes, futureand every other conceivable aspect of the
lives of all the people within the country and those subject to its sovereignty,
every degree of care is taken in preparing and drafting it. A constitution
worthy of the people for deliberation and study. It is obvious that
correspondingly, any amendment of the Constitution is of no less
importance than the whole Constitution itself, and perforce must be
conceived and prepared with as much care and deliberation. From the very
nature of things, the drafters of an original constitution, as already observed
earlier, operate without any limitations, restraints or inhibitions save those
that they may impose upon themselves. This is not necessarily true of
subsequent conventions called to amend the original constitution. Generally,
the framers of the latter see to it that their handwork is not lightly treated
and as easily mutilated or changed, not only for reasons purely personal but
more importantly, because written constitutions are supposed to be
designed so as to last for some time, if not for ages, or for, at least, as long
as they can be adopted to the needs and exigencies of the people, hence,
they must be insulated against precipitate and hasty actions motivated by
more or less passing political moods or fancies. Thus, as a rule, the original
constitutions carry with them limitations and conditions, more or less
stringent, made so in the people themselves, in regard to the process of
t h e ir amendment. And when such limitations or conditions are so
incorporated in the original constitution, it does not lie in the delegates of
any subsequent convention to claim that they may ignore and disregard
such conditions because they are as powerful and omnipotent as their
original counterparts." 32

3.This Court in Tolentino likewise formally adopted the doctrine of proper

submission first advanced in Gonzales vs. Comelec 33 , thus:
"We are certain no one can deny that in order that a plebiscite for the
ratication of an amendment to the Constitution may be validly held, it must
provide the voter not only sucient time but ample basis for an intelligent
appraisal of the nature of the amendment per se as well as its relation to the
other parts of the Constitution with which it has to form a harmonious
whole. In the context of the present state of things, where the Convention
has hardly started considering the merits of hundreds, if not thousands,
proposals to amend the existing Constitution, to present to the people any
single proposal or a few of them cannot comply with this requirement. We
are of the opinion that the present Constitution does not contemplate in
Section 1 of Article XV a plebiscite or election' wherein the people are in the
dark as to frame of reference they can base their judgment on. We reject
the rationalization that the present Constitution is a possible frame of
reference, for the simple reason that intervenors themselves are stating the
sole purpose of the proposed amendment is to enable the eighteen year

olds to take part in the election for the ratication of the Constitution to be
drafted by the Convention. In brief, under the proposed plebiscite, there can
be, in the language of Justice Sanchez, speaking for the six members of the
Court in Gonzales, supra, 'no proper submission.'" 34

4.Four other members of the Court 35 in a separate concurrence in Tolentino,

expressed their "essential agreement" with Justice Sanchez' separate opinion in
Gonzales on the need for " fair submission (and) intelligent consent or rejection" as
"minimum requirement that must be met in order that there can be a proper
submission to the people of a proposed constitutional amendment" thus:
". . . amendments must be fairly laid before the people for their blessing or
spurning. The people are not to be mere rubber stamps. They are not to
vote blindly. They must be aorded ample opportunity to mull over the
original provisions, compare them with the proposed amendments, and try
to reach a conclusion as the dictates of their conscience suggest, free from
the incubus of extraneous or possibly insidious inuences. We believe the
word 'submitted' can only mean that the government, within its maximum
capabilities, should strain every eort to inform every citizen of the
provisions to be amended, and the proposed amendments and the meaning,
nature and eects thereof. By this, we are not to be understood as saying
that, if one citizen or 100 citizens or 1,000 citizens cannot be reached, then
there is no submission within the meaning of the word as intended by the
framers of the Constitution. What the Constitution in eect directs is that
the government, in submitting an amendment for ratication, should put
every instrumentality or agency within its structural framework to enlighten
the people, educate them with respect to their act of ratication or rejection.
For as we have earlier stated, one thing is submission and another is
ratification. There must be fair submission, intelligent consent or rejection" 36

They stressed further the need for undivided attention, sucient information and
full debate, conformably to the intendment of Article XV, section 1 of the
Constitution, in this wise:
"A number of doubts or misgivings could conceivably and logically assail the
average voter. Why should the voting age be lowered at all, in the rst
place? Why should the new voting age be precisely 18 years, and not 19 or
20? And why not 17? Or even 16 or 15? Is the 18- year old as mature as
the 21-year old so that there is no need of an educational qualication to
entitle him to vote? In this age of permissiveness and dissent, can the 18year old be relied upon to vote with judiciousness when the 21-year old, in
the past elections, has not performed so well? If the proposed amendment
is voted down by the people, will the Constitutional Convention insist on the
said amendment? Why is there an unseemly haste on the part of the
Constitutional Convention in having this particular proposed amendment
ratied at this particular time? Do some of the members of the Convention
have future political plans which they want to begin to subserve by the
approval this year of this amendment? If this amendment is approved, does
it thereby mean that the 18-year old should not also shoulder the moral and
legal responsibilities of the 21-year old? Will he be required to render

compulsory military service under the colors? Will the age of contractual
consent be reduced to 18 years? If I vote against this amendment, will I not
be unfair to my own child who will be 18 years old, come 1973?
"The above are just samplings from here, there and everywhere from a
domain (of searching questions) the bounds of which are not immediately
ascertainable. Surely, many more questions can be added to the already
long litany. And the answers cannot be had except as the questions are
debated fully, pondered upon purposefully, and accorded undivided
attention.
"Scanning the contemporary scene, we say that the people are not, and by
election time will not be, suciently informed of the meaning, nature and
effects of the proposed constitutional amendment. They have not been
aorded ample time to deliberate thereon conscientiously. They have been
and are eectively distracted from a full and dispassionate consideration of
the merits and demerits of the proposed amendment by their traditional
pervasive involvement in local elections and politics. They cannot thus weigh
in tranquility the need for and the wisdom of the proposed amendment." 37

5.This Court therein dismissed the plea of disregarding the mandatory requirements
of the amending process "in favor of allowing the sovereign people to express their
decision on the proposed amendments" as "anachronistic in the realm of
constitutionalism and repugnant to the essence of the rule of law," in the following
terms:
". . . The preamble of the Constitution says that the Constitution has been
ordained by the 'Filipino people, imploring the aid of Divine Providence.'
Section 1 of Article XV is nothing more than a part of the Constitution thus
ordained by the people. Hence, in construing said section, We must read it
as if the people had said, 'This Constitution may be amended, but it is our will
that the amendment must be proposed and submitted to Us for ratication
only in the manner herein provided.' . . . Accordingly, the real issue here
cannot be whether or not the amending process delineated by the present
Constitution may be disregarded in favor of allowing the sovereign people to
express their decision on the proposed amendments, if only because it is
evident that the very idea of departing from the fundamental law is
anachronistic in the realm of constitutionalism and repugnant to the essence
of the rule of law; rather, it is whether or not the provisional nature of the
proposed amendment and the manner of its submission to the people for
ratication or rejection conform with the mandate of the people themselves
in such regard, as expressed in the Constitution itself." 38

6.This Court, in not heeding the popular clamor, thus stated its position: "(I)t would
be tragic and contrary to the plain compulsion of these perspectives, if the Court
were to allow itself in deciding this case to be carried astray by considerations other
than the imperatives of the rule of law and of the applicable provisions of the
Constitution. Needless to say, in a larger measure than when it binds other
departments of the government or any other ocial or entity, the Constitution
imposes upon the Court the sacred duty to give meaning and vigor to the

Constitution, by interpreting and construing its provisions in appropriate cases with

the proper parties and by striking down any act violative thereof. Here, as in all
other cases, We are resolved to discharge that duty." 39
7.The Chief Justice, in his separate opinion in Tolentino concurring with this Court's
denial of the motion for reconsideration, succinctly restated this Court's position on
the fundamentals, as follows:
On the premature submission of a partial amendment proposal, with a
"temporary provisional or tentative character": ". . . a partial amendment
would deprive the voters of the context which is usually necessary for them
to make a reasonably intelligent appraisal of the issue submitted for their
ratication or rejection . . . Then, too, the submission to a plebiscite of a
partial amendment, without a denite frame of reference, is fraught with
possibilities which may jeopardize the social fabric. For one thing, it opens
the door to wild speculations. It oers ample opportunities for overzealous
leaders and members of opposing political camps to unduly exaggerate the
pros and cons of the partial amendment proposed. In short, it is apt to
breed false hopes and create wrong impressions. As a consequence, it is
bound to unduly strain the people's faith in the soundness and validity of
democratic processes and institutions."
On the plea to allow submission to the sovereign people of the
"fragmentary and incomplete" proposal, although inconsistent with the letter
and spirit of the Constitution: "The view, has, also, been advanced that the
foregoing considerations are not decisive on the issue before Us, inasmuch
as the people are sovereign, and the partial amendment involved in this case
is being submitted to them. The issue before Us is whether or not said
partial amendment may be validly submitted to the people for ratication 'in a
plebiscite to coincide with the local elections in November 1971,' and this
particular issue will not be submitted to the people. What is more, the
Constitution does not permit its submission to the people. The question
sought to be settled in the scheduled plebiscite is whether or not the people
are in favor of the reduction of the voting age."

On a "political" rather than "legalistic" approach: "Is this approach to the

problem too 'legalistic? This term has several possible connotations. It may
mean strict adherence to the law, which in the case at bar is the Supreme
Law of the land. On this point, suce it to say that, in compliance with the
specic mandate of such Supreme Law, the members of the Supreme Court
have taken the requisite 'oath to support and defend the Constitution.' . . .
Then, again, the term 'legalistic' may be used to suggest inversely that the
somewhat strained interpretation of the Constitution being urged upon this
Court be tolerated or, at least, overlooked, upon the theory that the partial
amendment on the voting age is badly needed and reects the will of the
people, specially the youth. This course of action favors, in eect, the
adoption of a political approach, inasmuch as the advisability of the
amendment and an appraisal of the people's feeling thereon are political

matters. In fact, apart from the obvious message of the mass media, and,
at times, of the pulpit, the Court has been literally bombarded with scores of
handwritten letters, almost all of which bear the penmanship and the
signature of girls, as well as the letterhead of some secretarian educational
institutions, generally stating that the writer is 18 years of age and urging
that she or he be allowed to vote. Thus, the pressure of public opinion has
been brought to bear heavily upon the Court for a reconsideration of its
decision in the case at bar.
"As above stated, however, the wisdom of the amendment and the
popularity thereof are political questions beyond our province. In fact,
respondents and the intervenors originally maintained that We have no
jurisdiction to entertain the petition herein, upon the ground that the issue
therein raised is a political one. Aside from the absence of authority to pass
upon political question, it is obviously improper and unwise for the bench to
delve into such questions owing to the danger of getting involved in politics,
more likely of a partisan nature, and, hence, of impairing the image and the
usefulness of courts of justice as objective and impartial arbiters of
justiciable controversies.
"Then, too, the suggested course of action, if adopted, would constitute a
grievous disservice to the people and the very Convention itself. Indeed, the
latter and the Constitution it is in the process of drafting stand essentially for
the Rule of Law. However, as the Supreme Law of the land, a Constitution
would not be worthy of its name, and the Constitution called upon to draft it
would he engaged in a futile undertaking, if we did not exact faithful
adherence to the fundamental tenets set forth in the Constitution and
compliance with its provisions were not obligatory. If we, in effect, approved,
consented to or even overlooked a circumvention of said tenets and
provisions, because of the good intention with which Resolution No. 1 is
animated, the Court would thereby become the Judge of the good or bad
intentions of the Convention and thus be involved in a question essentially
political in nature.
"This is conrmed by the plea made in the motions for reconsideration in
favor of the exercise of judicial statesmanship in deciding the present case.
Indeed, 'politics' is the ward commonly used to epitomize compromise, even
with principles, for the sake of political expediency or the advancement of
the bid for power of a given political party. Upon the other hand,
statesmanship is the expression usually availed of to refer to high politics or
parties on the highest level. In any event, qualities, political approach, political
expediency and statesmanship are generally associated, and often identied,
with the dictum that 'the end justies the means.' I earnestly hope that the
administration of justice in this country and the Supreme Court, in particular,
will never adhere to or approve or indorse such dictum." 40

Tolentino, he pointed out that although "(M)ovants' submittal that '(T)he

primary purpose for the submission of the proposed amendment lowering the
voting age to the plebiscite on November 8, 1971 is to enable the youth 18 to 20
years who comprise more than three (3) million of our population to participate

in the ratication of the new Constitution in 1972' so as 'to allow young people
who would be governed by the new Constitution to be given a say on what kind
of Constitution they will have' is a laudable end, . . . those urging the vitality and
importance of the proposed constitutional amendment and its approval ahead of
the complete and final draft of the new Constitution must seek a valid solution to
achieve it in a manner sanctioned by the amendatory process ordained by our
people in the present Constitution" 41 so that there may be "submitted, not
piece- meal, but by way of complete and nal amendments as an integrated
whole (integrated either with the subsisting Constitution or with the new
proposed Constitution) . . ."
9.The universal validity of the vital constitutional precepts and principles aboveenunciated can hardly be gainsaid. I fail to see the attempted distinction of
restricting their application to proposals for amendments of particular provisions of
the Constitution and not to so-called entirely new Constitutions. Amendments to an
existing Constitution presumably may be only of certain parts or in toto, and in the
latter case would give rise to an entirely new Constitution. Where this Court held in
Tolentino that "any amendment of the Constitution is of no less importance than
the whole Constitution itself and perforce must be conceived and prepared with as
much care and deliberation' it would appeal that the reverse would equally be true;
which is to say, that the adoption of a whole new Constitution would be of no less
importance than any particular amendment and therefore the necessary care and
deliberation as well as the mandatory restrictions and safeguards in the amending
process ordained by the people themselves so that "they (may) be insulated against
precipitate and hasty actions motivated by more or less passing political moods or
fancies" must necessarily equally apply thereto.
III
1.To restate the basic premises, the people provided in Article XV of the Constitution
for the amending process only "by approval by a majority of the votes cast at an
election at which the (duly proposed) amendments are submitted to the people for
their ratification"
The people ordained in Article V, section 1 that only those thereby enfranchised and
granted the right of surage may speak the "will of the body politic", viz, qualied
literate voters twenty one years of age or over with one year's residence in the
municipality where they have registered.
The people, not as yet satised, further provided by amendment duly approved in
1940 in accordance with Article XV, for the creation of an independent Commission
on Elections with "exclusive charge" for the purpose of "insuring free, orderly and
honest elections" and ascertaining the true will of the electorate and more, as
ruled by this Court in Tolentino, in the case of proposed constitutional amendments,
insuring proper submission to the electorate of such proposals. 42
2.A Massachussets case 43 with a constitutional system and provisions analogous to
ours, best dened the uses of the term " people" as a body politic and " people" in
the political sense who are synonymous with the qualied voters granted the right

to vote by the existing Constitution and who therefore are "the sole organs through
which the will of the body politic can be expressed."
It was pointed out therein that "(T)he word 'people' may have somewhat varying
signications dependent upon the connection in which it is used. In some
connections in the Constitution it is conned to citizens and means the same as
citizens. It excludes aliens. It includes men, women, and children. It comprehends
not only the sane, competent, law-abiding and educated, but also those who are
wholly or in part dependents and charges upon society by reason of immaturity,
mental or moral deciency or lack of the common essentials of education. All these
persons are secured by the fundamental guarantees of the Constitution in life,
liberty, and property and the pursuit of happiness, except as these may be limited
for the protection of society."
In the sense of "body politic (as) formed by voluntary association of individuals"
governed by a constitution and common laws in a "social compact . . . for the
common good" and in another sense of "people" in a "practical sense" for "political
purposes" it was therein ttingly stated that "(I)n this sense, 'people' comprises
many who, by reason of want of years, of capacity or of the educational
requirements of Article 20 of the amendments of the Constitution, can have no
voice in government and who yet are entitled to all the immunities and protection
established by the Constitution. 'People' in this aspect is coextensive with the body
politic. But it is obvious that 'people' cannot be used with this broad meaning in a
political signication. The 'people' in this connection means that part of the entire
body of inhabitants who under the Constitution are intrusted with the exercise of
the sovereign power and the conduct of government. The 'people' in the
Constitution in a practical sense means those who under the existing Constitution
possess the right to exercise the elective franchise and who, while that instrument
remains in force unchanged, will be the sole organs through which the will of the
body politic can be expressed. 'People' for political purposes must be considered
synonymous with qualified voters.'"
As was also ruled by the U.S. Supreme Court, ". . . While the people are thus the
source of political power, their governments, national and state, have been limited
by written constitutions, and they have themselves thereby set bounds to their own
power, as against the sudden impulse of mere majorities." 44

From the text of Article XV of our Constitution, requiring approval of amendment

proposals "by a majority of the votes cast at an election at which the amendments
are submitted to the people for their ratication", it seems obvious as above-stated
that " people" as therein used must be considered synonymous with "qualified
voters" as enfranchised under Article V, section 1 of the Constitution since only "
people" who are qualied voters can exercise the right of surage and cast their
votes.
3.Sound constitutional policy and the sheer necessity of adequate safeguards as
ordained by the Constitution and implementing statutes to ascertain and record the

will of the people in free, orderly and honest elections supervised by the Comelec
make it imperative that there be strict adherence to the constitutional
requirements laid down for the process of amending in toto or in part the supreme
law of the land.
Even at barrio level 45 the Revised Barrio Charter xes certain safeguards for the
holding of barrio plebiscites thus: "SEC. 6. Plebiscite. A plebiscite may be held in
the barrio when authorized by a majority vote of the members present in the barrio
assembly, there being a quorom, or when called by at least four members of the
barrio council: Provided, however, That no plebiscite shall be held until after thirty
days from its approval by either body, and such plebiscite has been given the widest
publicity in the barrio, stating the date, time and place thereof, the questions or
issues to be decided, action to be taken by the voters, and such other information
relevant to the holding of the plebiscite." 46
As to voting at such barrio plebiscites, the Charter further requires that "(A)ll duly
registered barrio assembly members qualied to vote may vote in the plebiscite.
Voting procedures may be made either in writing as in regular elections, and/or
declaration by the voters to the board of election tellers." 47
The subjects of the barrio plebiscites are likewise delimited thus: "A plebiscite may
be called to decide on the recall of any member of the barrio council. A plebiscite
shall be called to approve any budgetary, supplemental appropriations or special tax
ordinances" and the required majority vote is also specied: "(F)or taking action on
any of the above enumerated measures, majority vote of all the barrio assembly
members registered in the list of the barrio secretary is necessary." 48
The qualications for voters in such barrio plebiscites and elections of barrio ocials
49 comply with the surage qualications of Article V, section 1 of the Constitution
and provide that "(S)EC. 10. Qualications of Voters and Candidates. Every
citizen of the Philippines, twenty one years of age or over, able to read and write,
who has been a resident of the barrio during the six months immediately preceding
the election, duly registered in the list of voters kept by the barrio secretary, who is
not otherwise disqualified, may vote or be a candidate in the barrio elections." 50
IV
1.Since it appears on the face of Proclamation 1102 that the mandatory
requirements under the above-cited constitutional articles have not been complied
with and that no election or plebiscite for ratication as therein provided as well as
in section 16 of Article XVII of the proposed Constitution itself 51 has been called or
held, there cannot be said to have been a valid ratification.
2.Petitioners raised serious questions as to the veracity and genuineness of the
reports or certicates of results purportedly showing unaccountable discrepancies in
seven gures in just ve provinces 52 between the reports as certied by the
Department of Local Governments and the reports as directly submitted by the
provincial and city executives, which latter reports respondents disclaimed inter alia
as not nal and complete or as not signed; 53 whether the reported votes of

approval of the proposed Constitution conditioned upon the non-convening of the

interim National Assembly provided in Article XVII, section 1 thereof, 54 may be
considered as valid; the allegedly huge and uniform votes reported; and many
others.
3.These questions only serve to justify and show the basic validity of the universal
principle governing written constitutions that proposed amendments thereto or in
replacement thereof may be ratied only in the particular mode or manner
prescribed therein by the people. Under Article XV, section 1 of our Constitution,
amendments thereto may be ratified only in the one way therein provided, i.e. in an
election or plebiscite held in accordance with law and duly supervised by the
Commission on Elections, and which is participated in only by qualied and duly
registered voters. In this manner, the safeguards provided by the election code
generally assure the true ascertainment of the results of the vote and interested
parties would have an opportunity to thresh out properly before the Comelec all
such questions in pre-proclamation proceedings.
4.At any rate, unless respondents seriously intend to question the very statements
and pronouncements in Proclamation 1102 itself which shows on its face, as already
stated, that the mandatory amending process required by the (1935) Constitution
was not observed, the cases at bar need not reach the stage of answering the host
of questions, raised by petitioners against the procedure observed by the Citizens
Assemblies and the reported referendum results since the purported ratication is
rendered nugatory by virtue of such non-observance.
5.Finally, as to respondents' argument that the President issued Proclamation 1102
"as 'agent' of the Constitutional Convention" 55 under Resolution No. 5844
approved on November 22, 1973, and "as agent of the Convention the President
could devise other forms of plebiscite to determine the will of the majority vis-a-vis
the ratification of the proposed Constitution." 56
The minutes of November 22, 1972, of the Convention, however, do not at all
support this contention. On the contrary, the said minutes fully show that the
Convention's proposal and "agency" was that the President issue a decree precisely
calling a plebiscite for the ratication of the proposed new Constitution on an
appropriate date, under the charge of the Comelec, and with a reasonable period for
an information campaign, as follows:
"12.Upon recognition by the Chair, Delegate Duavit moved for the approval
of the resolution, the resolution portion of which read as follows:
'RESOLVED, AS IT IS HEREBY RESOLVED, that the 1971
Constitutional Convention propose to President Ferdinand E. Marcos
that a decree be issued calling a plebiscite for the ratication of the
proposed New Constitution on such appropriate date as he shall
determine and providing for the necessary funds therefor, and that
copies of this resolution as approved in plenary session be
transmitted to the President of the Philippines and the Commission on
Elections for implementation.'

"He suggested that in view of the expected approval of the nal draft of the
new Constitution by the end of November 1972 according to the
Convention's timetable, it would be necessary to lay the groundwork for the
appropriate agencies of the government to undertake the necessary
preparation for the plebiscite.
"xxx xxx xxx
"12.2Interpellating, Delegate Pimentel (V.) contended that the resolution was
unnecessary because section 15, Article XVII on the Transitory Provision,
which had already been approved on second and third readings, provided
that the new constitution should be ratied in a plebiscite called for the
purpose by the incumbent President. Delegate Duavit replied that the
provision referred to did not include the appropriation of funds for the
plebiscite and that moreover, the resolution was intended to serve formal
notice to the President and the Commission on Elections to initiate the
necessary preparations.
"xxx xxx xxx
"12.4Interpellating, Delegate Madarang suggested that a reasonable period
for an information campaign was necessary in order to properly apprise the
people of the implications and signicance of the new charter. Delegate
Duavit agreed, adding that this was precisely why the resolution was
modied to give the President the discretion to choose the most appropriate
date for the plebiscite.
"12.5Delegate Laggui asked whether a formal communication to the
President informing him of the adoption of the new Constitution would not
suce considering that under Section 15 of the Transitory Provisions, the
President would be duty-bound to call a plebiscite forits ratication. Delegate
Duavit replied in the negative, adding that the resolution was necessary to
serve notice to the proper authorities to prepare everything necessary for
the plebiscite.
"12.6In reply to Delegate Britanico, Delegate Duavit stated that the
mechanics for the holding of the plebiscite would he laid down by the
Commission on Elections, in coordination with the President.
"12.7Delegate Catan inquired if such mechanics for the plebiscite could
include a partial lifting of martial law in order to allow the people to assemble
peaceably to discuss the new Constitution. Delegate Duavit suggested that
the Committee on Plebiscite and Ratication could coordinate with the
COMELEC on the matter.
"12.8Delegate Guzman moved for the previous question. The Chair declared
that there was one more interpellant and that a prior reservation had been
made for the presentation of such a motion.
1.8aDelegate Guzman withdrew his motion.

"12.9Delegate Astilla suggested in his interpellation that there was actually no

need for such a resolution in view of the provision of section 15, Article XVII
on the Transitory Provisions. Delegate Duavit disagreed, pointing out that
the said provision did not provide for the funds necessary for the purpose.

"13.Delegate Ozamiz moved to close the debate and proceed to the period
of amendment.
"13.1Floor Leader Montejo stated that there were no reservations to amend
the resolution.
"13.2Delegate Ozamiz then moved for the previous question. Submitted to a
vote, the motion was approved.
"Upon request of the Chair, Delegate Duavit restated the resolution for
voting.
"14.1.Delegate Ordoez moved for nominal voting. Submitted to a vote, the
motion was lost.
"14.2.Thereupon, the Chair submitted the resolution to a vote. It was
approved by a show of hands." 57

I, therefore, vote to deny respondents' motion to dismiss and to give due course to
the petitions.
Promulgated: June 4, 1973 *
ANTONIO, J.:
In conformity with my reservation, I shall discuss the grounds for my concurrence.
I
It is my view that to preserve the independence of the State, the maintenance of
the existing constitutional order and the defense of the political and social liberties
of the people, in times of a grave emergency, when the legislative branch of the
government is unable to function or its functioning would itself threaten the public
safety, the Chief Executive may promulgate measures legislative in character, for
the successful prosecution of such objectives. For the "President's power as
Commander-in-chief has been transformed from a simple power of military
command to a vast reservoir of indeterminate powers in time of emergency . . . In
other words, the principal canons of constitutional interpretation are . . . set aside so
far as concerns both the scope of the national power and the capacity of the
President to gather unto himself all constitutionally available powers in order the
more eectively to focus them upon the task of the hour." (Corwin, The President:
Office & Powers, pp. 317, 318, [1948]).
1.The proclamation of martial rule, ushered the commencement of a crisis

government in this country. In terms of power, crisis government in a constitutional

democracy entails the concentration of governmental power. "The more complete
the separation of powers in a constitutional system, the more dicult, and yet the
more necessary" according to Rossiter, "will be their fusion in time of crisis . . . The
power of the state in crisis must not only be concentrated and expanded, it must be
freed from the normal system of constitutional and legal limitations. One of the
basic features of emergency powers is the release of the government from the
paralysis of constitutional restraints" (Rossiter, Constitutional Dictatorship, p. 290).
It is clearly recognized that in moments of peril the eective action of the
government is channeled through the person of the Chief Executive. "Energy in the
executive", according to Hamilton, "is essential to the protection of the community
against foreign attacks . . . to the protection of property against those irregular and
high-handed combinations which sometimes interrupt the ordinary course of
justice; to the security of liberty against the enterprises and assaults of ambition, of
faction, and of anarchy." (The Federalist, Number 70). "The entire strength of the
nation", said Justice Brewer in the Debts ease (158 U.S. 564; 39 L. ed. 1092), "may
be used to enforce in any part of the land the full and free exercise of all national
powers and the security of all rights entrusted by the Constitution to its care". The
marshalling and employment of the "strength of the nation" are matters for the
discretion of the Chief Executive. The President's powers in time of emergency defy
precise denition since their extent and limitations are largely dependent upon
conditions and circumstances.
2.The power of the President to act decisively in a crisis has been grounded on the
broad conferment upon the Presidency of the Executive power, with the added
specic grant of power under the "Commander- in-Chief" clause of the constitution.
The contours of such powers have been shaped more by a long line of historical
precedents of Presidential action in times of crisis, rather than judicial
interpretation. Lincoln wedded his powers under the "commander-in- chief" clause
with his duty "to take care that the laws be faithfully executed", to justify the series
of extraordinary measures which he took the calling of volunteers for military
service, the augmentation of the regular army and navy, the payment of two
million dollars from unappropriated funds in the Treasury to persons unauthorized
to receive it, the closing of the Post Oce to "treasonable correspondence", the
blockade of southern ports, the suspension of the writ of habeas corpus, the arrest
and detention of persons 'who were represented to him" as being engaged in or
contemplating "treasonable practices" all this for the most part without the least
statutory authorization. Those actions were justied by the imperatives of his logic,
that the President may, in an emergency thought by him to require it, partially
suspend the constitution. Thus his famous question: "Are all laws but one to be
unexecuted, and the Government itself go to pieces lest that one be violated?" The
actions of Lincoln "assert for the President", according to Corwin, "an initiative of
indenite scope and legislative in eect in meeting the domestic aspects of a war
emergency." (Corwin, The President: Oce & Powers, p. 280 [1948]). The facts of
the civil war have shown conclusively that in meeting the domestic problems as a
consequence of a great war, an indenite power must be attributed to the President
to take emergency measures. The concept of "emergency" under which the Chief

Executive exercised extraordinary powers underwent correlative enlargement

during the rst and second World Wars. From its narrow concept as an "emergency"
in time of war during the Civil War and World War I, the concept has been
expanded in World War II to include the "emergency" preceding the war and even
after it. "The Second World War" observed Corwin and Koenig, was the First World
War writ large, and the quasi-legislative powers of Franklin Roosevelt as
"Commander-in-Chief in wartime" . . . burgeoned correspondingly. The precedents
were there to be sure, most of them from the First World War, but they proliferated
amazingly. What is more, Roosevelt took his rst step toward war some fteen
months before our entrance into shooting war. This step occurred in September,
1940, when he handed over fty so-called overage destroyers to Great Britain. The
truth is, they were not overage, but had been recently reconditioned and
recommissioned . . . Actually, what President Roosevelt did was to take over for the
nonce Congress's power to dispose of property of the United States (Article IV,
Section 3) and to repeal at least two statutes." (Corwin & Koenig, The Presidency
Today, New York University Press, 1956; sf Corwin, The President: Oce and
Powers, 1948.)
The creation of public oces is a power conded by the constitution to Congress.
And yet President Wilson, during World War I on the basis of his powers under the
"Commander-in-Chief" clause created "oces" which were copied in lavish scale by
President Roosevelt in World War II. In April 1942, thirty-ve "executive agencies"
were purely of Presidential creation. On June 7, 1941 on the basis of his powers as
"Commander-in-Chief", he issued an executive order seizing the North American
Aviation plant of Inglewood, California, where production stopped as a consequence
of a strike. This was justied by the government, as the exercise of Presidential
power growing out of the "duty constitutionally and inherently resting upon the
President to exert his civil and military as well as his moral authority to keep the
defense eorts of the United States a going concern" as well as "to obtain supplies
for which Congress has appropriated money, and which it has directed the President
to obtain." On a similar justication other plants and industries were taken over by
the government. It is true that in Youngstown Sheet & Tube vs. Sawyer (343 U.S.
579; 72 3. Ct. 863; 96 L. Ed. 1153, [1952]), the Supreme Court of the United States
did not sustain the claims that the President could, as the Nation's Chief Executive
and as Commander- in-Chief of the armed forces, validly order the seizure of most
of the country's steel mills. The Court however did not face the naked question of
the President's power to seize steel plants in the absence of any congressional
enactment or expressions of policy. The majority of the Court found that this
legislative occupation of the eld made untenable the President's claim of authority
to seize the plants as an exercise of inherent executive power or as Commander-inChief Justice Clerk in his concurrence to the main opinion of the Court, explicitly
asserted that the President does possess, in the absence of restrictive legislation, a
residual or resultant power above or in consequence of his granted powers, to deal
with emergencies that he regards as threatening the national security. The same
view was shared with vague qualications by Justices Frankfurter and Jackson, two
of the concurring Justices. The three dissenting Justices, speaking through Chief
Justice Vinson, apparently went further by quoting with approval a passage
extracted from the brief of the government in the case of United States vs. Midwest

Oil Co., (236 U.S. 459, 59 L. Ed. 673, 35 S. Ct. 309) where the court sustained the
power of the President to order withdrawals from the public domain, not only
without Congressional sanction but even contrary to Congressional statutes.
It is evident therefore that the Steel Seizure Case, cannot be invoked as an
authority to support the view that the President in times of a grave crisis does not
possess a residual power above or in consequence of his granted powers, to deal
with emergencies that he regards as threatening the national security. The lesson of
the Steel Seizure case, according to Corwin and Koenig, "Unquestionably . . . tends
to supplement presidential emergency power to adopt temporary remedial
legislation when Congress has been, in the judgment of the President, unduly
remiss in taking cognizance of and acting on a given situation." (Corwin and Koenig,
The Presidency Today, New York University Press, 1956).

The accumulation of precedents has thus built up the presidential power under
emergency conditions to "dimensions of executive prerogative as described by John
Locke, of a power to wit, to ll needed gaps in the law, or even to supersede it so far
as may be requisite to realize the fundamental law of native and government,
namely, that as much as may be all the members of society are to be preserved."
(Corwin and Koenig, The Presidency Today).
In the light of the accumulated precedents, how could it be reasonably argued
therefore, that the President had no power to issue Presidential Decree Nos. 86 and
86-A as well as Proclamation No. 1102, since these measures were considered
indispensable to eect the desired reforms at the shortest time possible and hasten
the restoration of normalcy? It is unavailing for petitioners to contend that we are
not faced by an actual "shooting war" for today's concept of the emergency which
justied the exercise of those powers has of necessity been expanded to meet the
exigencies of new dangers and crisis that directly threaten the nation's continued
and constitutional existence. For as Corwin observed: ". . . today the concept of 'war'
as a special type of emergency warranting the realization of constitutional
limitations tends to spread, as it were, in both directions, so that there is not only
'the war before the war,' but the 'war after the war.' Indeed, in the economic crisis
from which the New Deal may be said to have issued, the nation was confronted in
the opinion of the late President with an 'emergency greater than war'; and in
sustaining certain of the New Deal measures the Court invoked the justication of
'emergency.' In the nal result the constitutional practices of wartime have
moulded the Constitution to greater or less extent for peacetime as well, and seem
likely to do so still more pronouncedly under fresh conditions of crisis." (Corwin, Ibid.
p. 318.)
The same view was expressed by Rossiter thus:
"The second crisis is rebellion, when the authority of a constitutional
government is resisted openly by large numbers of its citizens who are
engaged in violent insurrection against the enforcement of its laws or are
bent on capturing it illegally or even destroying it altogether. The third crisis,

one recognized particularly in modern times as sanctioning emergency

action by constitutional governments, is economic depression. The
economic troubles which plagued all the countries of the world in the early
thirties invoked governmental methods of an unquestionably dictatorial
character in many democracies. It was thereby acknowledged that an
economic existence as a war or a rebellion. And these are not the only crisis
which have justied extraordinary governmental action in nations like the
United States. Fire, ood, drought, earthquake, riots, and great strikes have
all been dealt with by unusual and often dictatorial methods. Wars are not
won by debating societies, rebellions are not suppressed by judicial
injunctions, the reemployment of twelve million jobless citizens will not be
eected through a scrupulous regard for the tenets of free enterprise, and
hardships caused by the eruptions of nature cannot be mitigated by letting
nature take its course. The Civil War, the depression of 1933, and the recent
global conict were not and could not have been successfully resolved by
governments similar to those of James Buchanan, William Howard Taft, or
Calvin Coolidge." (Rossiter, Constitutional Dictatorship Crisis of
Government in the Modern Democracies, p. 6 [1948;).

II
We are next confronted with the insistence of Petitioners that the referendum in
question not having been done in accordance with the provisions of existing election
laws, where only qualied voters are allowed to participate, under the supervision
of the Commission on Elections, the new Constitution, should therefore be declared
a nullity. Such an argument is predicated upon an assumption that Article XV of the
1935 Constitution provides the method for the revision of the constitution, and
automatically apply in the approval of such proposed new Constitution the
provisions of the election law and those of Article V and X of the old Constitution.
We search in vain for any provision in the old charter specically providing for such
procedure in the case of a total revision or a rewriting of the whole constitution.
1.There is clearly a distinction between revision and amendment of an existing
constitution. Revision may involve a rewriting of the whole constitution. The act of
amending a constitution, on the other hand, envisages a change of only specic
provisions. The intention of an act to amend is not the change of the entire
constitution, but only the improvement of specific parts of the existing constitution
of the addition of provisions deemed essential as a consequence of new conditions
or the elimination of parts already considered obsolete or unresponsive to the needs
of the times. 1 The 1973 Constitution is not a mere amendment to the 1935
Constitution. It is a completely new fundamental charter embodying new political,
social and economic concepts.
According to an eminent authority on Political Law, "The Constitution of the
Philippines and that of the United States expressly provide merely for methods of
amendment. They are silent on the subject of revision. But this is not a fatal
omission. There is nothing that can legally prevent a convention from actually
revising the Constitution of the Philippines or of the United States even were such
conventions called merely for the purpose of proposing and submitting amendments

to the people. For in the nal analysis it is the approval of the people that gives
validity to any proposal of amendment or revision." (Sinco, Philippine Political Law,
p. 49).
Since the 1936 Constitution does not specically provide for the method or
procedure for the revision or for the approval of a new constitution, should it now be
held that the people have placed such restrictions on themselves that they are now
disabled from exercising their right as the ultimate source of political power from
changing the old constitution which, in their view, was not responsive to their needs
and in adopting a new charter of government to enable them to rid themselves
from the shackles of traditional norms and to pursue with a new dynamism the
realization of their true longings and aspirations, except in the manner and form
provided by Congress for previous plebiscites? Was not the expansion of the base of
political participation, by the inclusion of the youth in the process of ratication who
after all constitute the preponderant majority more in accord with the spirit and
philosophy of the constitution that political power is inherent in the people
collectively? As clearly expounded by Justice Makasiar in his opinion, in all the cases
cited where the Court held that the submission of the proposed amendment was
illegal due to the absence of substantial compliance with the procedure prescribed
by the Constitution, the procedure prescribed by the state Constitution, is so
detailed, that it specied the manner in which such submission shall be made, the
persons qualied to vote for the same, the date of election and other denite
standards, from which the court could safely ascertain whether or not the
submission was in accordance with the Constitution. Thus the case of In re
McConaughy (119 N.E. 408) relied upon in one of the dissenting opinions involved
the application of the provisions of the state Constitution of Minnesota which clearly
prescribed in detail the procedure under which the Constitution may be amended or
revised. 2 This is not true with our Constitution. In the case of revision there are no
"standards meet for judicial judgment". 3
The framers of our Constitution were free to provide in the Constitution the method
or procedure for the revision or rewriting of the entire constitution, and if such was
their intention, they could and should have so provided. Precedents were not
wanting. The constitutions of the various states of the American Union did provide
for procedures for their amendment, and methods for their revision. 4
Certainly We cannot, under the guise of interpretation, modify, revise, amend,
remodel or rewrite the 1935 Charter. To declare what the law is, or has been, is a
judicial power, but to declare what the law shall be is not within Our judicial
competence and authority.
Upon the other hand, since our fundamental charter has not provided the method or
procedure for the revision or complete change of the Constitution, it is evident that
the people have reserved such power in themselves. They decided to exercise it not
through their legislature, but through a Convention expressly chosen for that
purpose. The Convention as an independent and sovereign body has drafted not an
amendment but a completely new Constitution, which decided to submit to the
people for approval, not through an act of Congress, but by means of decrees to be

promulgated by the President. In view of the inability of Congress to act, it was

within the constitutional powers of the President, either as agent of the
Constitutional Convention, or under his authority under martial law, to promulgate
the necessary measures for the ratication of the proposed new Constitution. The
adoption of the new Charter was considered as a necessary basis for all the reforms
set in motion under the new society, to root out the causes of unrest. The
imperatives of the emergency underscored the urgency of its adoption. The people
in accepting such procedure and in voting overwhelmingly for the approval of the
new Constitution have, in eect, ratied the method and procedure taken. "When
the people adopt a completely revised or new constitution," said the Court in
Wheeler v. Board of Trustees (37 SE 2nd 322, 326-330), "the framing or submission
of the instrument is not what gives it binding force and effect. The fiat of the people,
and only the fiat of the people, can breathe life into a constitution."

This has to be so because, in our political system, all political power is inherent in
the people and free governments are founded on their authority and instituted for
their benet. Thus Section 1 of Article II of the 1935 Constitution declares that:
"Sovereignty resides in the people and all government authority emanates from
them." Evidently the term people refers to the entire citizenry and not merely to
the electorate, for the latter is only a fraction of the people and is only an organ of
government for the election of government officials.
III
The more compelling question, however is: Has this Court the authority to nullify an
entire Constitution that is already effective as it has been accepted and acquiesced
in by the people as shown by their compliance with the decree promulgated
thereunder, their cooperation in its implementation, and is now maintained by the
Government that is in undisputed authority and dominance?
Of course it is argued that acquiescence by the people cannot be deduced from their
acts of conformity, because under a regime of martial law the people are hound to
obey and act in conformity with the orders of the President, and have absolutely no
other choice. The aw of this argument lies in its application of a mere theoretical
assumption based on the experiences of other nations on an entirely dierent
factual setting. Such an assumption ounders on the rock of reality. It is true that as
a general rule martial law is the use of military forces to perform the functions of
civil government. Some courts have viewed it as a military regime which can be
imposed in emergency situations. In other words, martial rule exists when the
military rises superior to the civil power in the exercise of some or all the functions
of government. Such is not the case in this country. The government functions thru
its civilian ocials. The supremacy of the civil over the military authority is
manifest. Except for the imposition of curfew hours and other restrictions required
for the security of the State, the people are free to pursue their ordinary concerns.
In short, the existing regime in this country, does not contain the oppressive
features, generally associated with a regime of martial law in other countries.

"Upon the other hand the masses of our people have accepted it, because of its
manifold blessings. The once downtrodden rice tenant has at long last, been
emancipated a consummation devoutly wished by every Philippine President
since the 1930's. The laborer now holds his head high because his rights are amply
protected and respected." * A new sense of discipline has swiftly spread beyond the
corridors of government into the social order. Responding to the challenges of the
New Society, the people have turned in half a million loose rearms, paid their
taxes on undeclared goods and income in unprecedented numbers and amount, lent
their labors in massive cooperation in land reform, in the repair of dikes,
irrigation ditches, roads and bridges, in reforestation, in the physical transformation
of the environment to make ours a cleaner and greener land. "The entire country is
turning into one vast garden growing food for the body, for thought and for the
soul." * More important the common man has at long last been freed from the
incubus of fear.
"Martial law has paved the way for a re-ordering of the basic social structure of the
Philippines" reported Frank Valeo to the United States Senate. "President Marcos
has been prompt and sure- footed in using the power of presidential decree under
martial law for this purpose. He has zeroed in on areas which have been widely
recognized as prime sources of the nation's diculties land tenancy, ocial
corruption, tax evasion and abuse of oligarchic economic power. Clearly he knows
his targets . . . there is marked public support for his leadership . . ." (Bulletin Today,
March 3 and 4, 1973).
In a similar vein, C.L. Sulzberger, a foreign aairs columnist wrote, in the April 11
issue of The New York Times:
During his rst Presidential term (1965-1969), Mr. Marcos was discouraged
by the failure of legislators to approve urgently needed reforms. He found
his second term further frustrated by spreading riots, a Maoist uprising in
Luzon and a much more serious Moslem insurrection in the southern islands
from Mindanao across the Sulu archipelago to the frontier regions of
Malaysia and Indonesia. Manila claims this war is Maoist-coordinated.
Mr. Marcos has now in eect taken all the reins of power and makes no
promise as to when he will relinquish them. But, while fettering a free press,
terminating Congress and locking up some opponents (many of whom were
later amnestied), he has hauled the Philippines out of stagnation.
Sharecropping is being ended as more than three million acres of arable land
are redistributed with state funds. New roads have been started. The
educational system is undergoing revision, and corruption is diminished. In
non-communist Asia it is virtually impossible to wholly end it and this
disagreeable phenomenon still reaches very high.
Mr. Marcos, an imaginative, gifted man, hopes to reshape society by
creating an agrarian middle-class to replace the archaic sharecropperabsentee landlord relationship. He is even pushing a birth control program
with the tacit acceptance of the Catholic Church. He has started labor
reforms and increased wages." (Daily Express, April 15, 1973)

As explained in this writer's opinion of April 24, 1973 on the "Constancia" and
"Manifestation" of counsel for petitioners:
The new Constitution is considered effective "if the norms created in conformity
with it are by and large applied and obeyed. As soon as the old Constitution loses its
eectiveness and the new Constitution has become eective, the acts that appear
with the subjective meaning of creating or applying legal norms are no longer
interpreted by presupposing the old basic norm, but by presupposing the new one.
The statutes issued under the old Constitution and not taken over are no longer
regarded as valid, and the organs authorized by the old Constitution no longer
competent." (Kelsen, Pure Theory of Law, [1967].)
The essentially political nature of the question is at once made manifest by
understanding that in the nal analysis, what is assailed is not merely the validity
of Proclamation No. 1102 of the President, which is merely declaratory of the fact of
approval or ratication, but the legitimacy of the government. It is addressed more
to the framework and political character of this Government which now functions
under the new Charter. It seeks to nullify a Constitution that is already effective.
In such a situation, We do not see how the question posed by petitioners could be
judicially decided. "Judicial power presupposes an established government capable of
enacting laws and enforcing their execution, and of appointing judges to expound
and administer them. If it decides at all as a court, it necessarily arms the
existence and authority of the government under which it is exercising judicial
power." (Luther v. Borden, 48 U.S. [7 How.] 1, 12 L. Ed. 598.)
In other words, where a complete change in the fundamental law has been eected
through political action, the Court whose existence is aected by such change is, in
the words of Mr. Melville Fuller Weston, "precluded from passing upon the fact of
change by a logical diculty which is not to be surmounted." 5 Such change in the
organic law relates to the existence of a prior point in the Court's "chain of title" to
its authority and "does not relate merely to a question of the horizontal distribution
of powers." 6 It involves in essence a matter which "the sovereign has entrusted to
the so-called political departments of government or has reserved to be settled by
its own extra governmental action." 7
The non-judicial character of such a question has been recognized in American law.
"From its earliest opinions this Court has consistently recognized," said Justice
Frankfurter, in his illuminating dissent in Baker v. Carr, 369 U.S. 186, 7 L. Ed. 2d
633, 722, 726, 727), "a class of controversies which do not lend themselves to
judicial standards and judicial remedies. To classify the various instances as 'political
questions' is rather a form of stating this conclusion than revealing of analysis . . .
The crux of the matter is that courts are not t instruments of decision where what
is essentially at stake is the composition of those large contests of policy
traditionally fought out in non-judicial forums, by which governments and the
actions of governments are made and unmade."
The diversity of views contained in the opinions of the members of this Court, in the
cases at bar, cannot be a case of "right" or "wrong" views of the Constitution. It is

one of attitudes and values. For there is scarcely any principle, authority or
interpretation which has not been countered by the opposite. At bottom it is the
degree of one's faith in the nation's leadership and in the maturity of judgment
of our people.
IN VIEW OF THE FOREGOING, the dismissal of these ve cases, and the conclusion
of this Court in its judgment of March 31, 1973 are fully justified.

Barredo, Makasiar and Esguerra, JJ., concur.

APPENDIX TO OPINION
(G.R. Nos. L-36142, 36164, 36165, 36236 & 36283)
PROVISIONS OF STATE CONSTITUTIONS SPECIFICALLY PROVIDING FOR
AMENDMENT AND REVISION@
1.Alaska (1959) Art. XIII.Amendment and Revision.
Sec. 1.Amendments.Amendments to this constitution may be proposed by a twothirds vote of each house of the legislature. The secretary of state shall prepare a
ballot title and proposition summarizing each proposed amendment, and shall place
them on the ballot for the next statewide election. If a majority of the votes cast on
the proposition favor the amendment, it shall be adopted. Unless otherwise
provided in the amendment, it becomes eective thirty days after the certication
of the election returns by the secretary of state.

Sec. 2.Convention.The legislature may call constitutional conventions at any time.

Sec. 3.Call by referendum.If during any ten-year period a constitutional convention
has not been held, the secretary of state shall place on the ballot for the next
general election the question: "Shall there be a Constitutional Convention?" If a
majority of the votes cast on the question are in the negative, the question need
not be placed on the ballot until the end of the next ten-year period. If a majority of
the votes cast on the question are in the armative, delegates to the convention
shall be chosen at the next regular statewide election, unless the legislature
provides for the election of the delegates at a special election. The secretary of state
shall issue the call for the convention. Unless other provisions have been made by
law, the call shall conform as nearly as possible to the act calling the Alaska
Constitutional Convention of 1955, including, but not limited to, number of
members, districts, election and certication of delegates, and submission and
ratification of revisions and ordinances . . .
Sec. 4.Powers.Constitutional conventions shall have plenary power to amend or
revise the constitution, subject only to ratication by the people. No call for a
constitutional convention shall limit these powers of the convention.
2.California (1879) Art. XVIII.Amending and Revising the Constitution.

Sec. 1.Constitutional amendments.Any amendment or amendments to this

Constitution may be proposed in the Senate or Assembly, and if two-thirds of all the
members elected to each of the two houses shall vote in favor thereof, such
proposed amendment or amendments shall be entered in their Journals, with the
yeas and nays taken thereon; and it shall be the duty of the Legislature to submit
such proposed amendment or amendments to the people in such manner, and at
such time, and after such publication as may be deemed expedient. Should more
amendments than one be submitted at the same election they shall be so prepared
and distinguished, by numbers or otherwise, that each can be voted on separately. If
the people shall approve and ratify such amendment or amendments, or any of
them, by a majority of the qualied electors voting thereon such amendment or
amendments shall become a part of this constitution.
Sec. 2.Constitutional convention.Whenever two-thirds of the members elected to
each branch of the Legislature shall deem it necessary to revise this Constitution,
they shall recommend to the electors to vote at the next general election for or
against a Convention for that purpose, and if a majority of the electors voting at
such election on the proposition for a Convention shall vote in favor thereof, the
Legislature shall, at its next session, provide by law for calling the same. The
Convention shall consist of a number of delegates not to exceed that of both
branches of the Legislature, who shall be chosen in the same manner, and have the
same qualications, as Members of the Legislature. The delegates so elected shall
meet within three months after their election at such place as the Legislature may
direct. At a special election to be provided for by law, the Constitution that may be
agreed upon by such Convention shall be submitted to the people for their
ratication or rejection, in such manner as the Convention may determine. The
returns of such election shall, in such manner as the Convention shall direct, be
certied to the Executive of the State, who shall call to his assistance the Controller,
Treasurer, and Secretary of State, and compare the returns so certied to him; and
it shall be the duty of the Executive to declare, by his proclamation, such
Constitution, as may have been ratied by a majority of all the votes cast at such
special election, to be the Constitution of the State of California.
2.Colorado (1876) Art. XIX.Amendments.
Sec. 1.Constitutional convention; how called.The general assembly may at any time
by a vote of two-thirds of the members elected to each house, recommend to the
electors of the state, to vote at the next general election for or against a convention
to revise, alter and amend this constitution; and if a majority of those voting on the
question shall declare in favor of such convention, the general assembly shall, at the
next session, provide for the calling thereof. The number of members of the
convention shall be twice that of the senate and they shall be elected in the same
manner, at the same places, and in the same districts. The general assembly shall,
in the act calling the convention, designate the day, hour and place of its meeting;
x the pay of its members and ocers, and provide for the payment of the same,
together with the necessary expenses of the convention. Before proceeding, the
members shall take an oath to support the constitution of the United States, and of
the state of Colorado, and to faithfully discharge their duties as members of the

convention. The qualications of members shall be the same as of members of the

senate; and vacancies occurring shall be lled in the manner provided for lling
vacancies in the general assembly. Said convention shall meet within three months
after such election and prepare such revisions, alterations or amendments to the
constitution as may be deemed necessary; which shall be submitted to the electors
for their ratication or rejection at an election appointed by the convention for that
purpose, not less than two nor more than six months after adjournment thereof;
and unless so submitted and approved by a majority of the electors voting at the
election, no such revision, alteration or amendment shall take effect.
Sec. 2.Amendments to constitution; how adopted.Any amendment or amendments
to this constitution may be proposed in either house of the general assembly, and if
the same shall be voted for by two-thirds of all the members elected to each house,
such proposed amendment or amendments, together with the ayes and noes of
each house hereon, shall be entered in full on their respective journals; the
proposed amendment or amendments shall be published with the laws of that
session of the general assembly, and the secretary of state shall also cause the said
amendment or amendments to be published in full in not more than one newspaper
of general circulation in each county, for four successive weeks previous to the next
general election for members of the general assembly; and at said election the said
amendment or amendments shall be submitted to the qualified electors of the state
for their approval or rejection, and such as are approved by a majority of those
voting thereon shall become part of this constitution.
Provided, that if more than one amendment be submitted at any general election,
each of said amendments shall be voted upon separately and votes thereon cast
shall be separately counted the same as though but one amendment was
submitted. But the general assembly shall have no power to propose amendments
to more than six articles of this constitution at the same session.
4.Delaware (1897) Art. XVI.Amendments and Conventions.
Sec. 1.Proposal of constitutional amendments in general assembly; procedure.Any
amendment or amendments to this Constitution may be proposed in the Senate or
House of Representatives; and if the same shall be agreed to by two-thirds of all the
members elected to each House, such proposed amendment or amendments shall
be entered on their journals, with the yeas and nays taken thereon, and the
Secretary of State shall cause such proposed amendment or amendments to be
published three months before the next general election in at least three
newspapers in each County in which such newspapers shall be published; and if in
the General Assembly next after the said election such proposed amendment or
amendments shall upon yea and nay vote be agreed to by two-thirds of all the
members elected to each House, the same shall thereupon become part of the
Constitution.
Sec. 2.Constitutional conventions; procedure; compensation of delegates; quorum;
powers and duties; vacancies.The General Assembly by a two thirds vote of all the
members elected to each House may from time to time provide for the submission

to the qualied electors of the State at the general election next thereafter the
question, "Shall there be a Convention to revise the Constitution and amend the
same?; and upon such submission, if a majority of those voting on said question
shall decide in favor of a Convention for such purpose, the General Assembly at its
next session shall provide for the election of delegates to such convention at the
next general election. Such Convention shall be composed of forty-one delegates,
one of whom shall be chosen from each Representative District by the qualied
electors thereof, and two of whom shall be chosen from New Castle County, two
from Kent County and two from Sussex County by the qualied electors thereof
respectively. The delegates so chosen shall convene at the Capital of the State on
the first Tuesday in September next after their election. Every delegate shall receive
for his services such compensation as shall be provided by law. A majority of the
Convention shall constitute a quorum for the transaction of business. The
Convention shall have power to appoint such ocers, employees and assistants 'as
it may deem necessary, and x their compensation, and provide for the printing of
its documents, journals, debates and proceedings. The Convention shall determine
the rules of its proceedings, and be the judge of the elections, returns and
qualications of its members. Whenever there shall be a vacancy in the oce of
delegate from any district or county by reason of failure to elect, ineligibility, death,
resignation or otherwise, a writ of election to ll such vacancy shall be issued by the
Governor, and such vacancy shall be lled by the qualied electors of such district or
county.

5.Florida (1887) Art. XVII.Amendments.

Sec. 1.Method of amending constitution.Either branch of the Legislature, at any
regular session, or at any special or extra- ordinary session thereof called for such
purpose either in the governor's original call or any amendment thereof, may
propose the revision or amendment of any portion or portions of this Constitution.
Any such revision or amendment may relate to one subject or any number of
subjects, but no amendment shall consist of more than one revised article of the
Constitution.
If the proposed revision or amendment is agreed to by three- fths of the members
elected to each house, it shall be entered upon their respective journals with the
yeas and nays and published in one newspaper in each county where a newspaper is
published for two times, one publication to be made not earlier than ten weeks and
the other not later than six weeks, immediately preceding the election at which the
same is to be voted upon, and thereupon submitted to the electors of the State for
approval or rejection at the next general election, provided, however, that such
revision or amendment may be submitted for approval or rejection in a special
election under the conditions described in and in the manner provided by Section 3
of Article XVII of this Constitution. If a majority of the electors voting upon the
amendment adopt such amendment the same shall become a part of this
Constitution.

Sec. 2.Method of revising constitution.If at any time the Legislature, by a vote of

two-thirds of all the members of both Houses, shall determine that a revision of this
Constitution is necessary, such determination shall be entered upon their respective
Journals, with yea's and nay's thereon. Notice of said action shall be published
weekly in one newspaper in every county in which a newspaper is published, for
three months preceding the next general election of Representatives, and in those
counties where no newspaper is published, notice shall be given by posting at the
several polling precincts in such counties for six weeks next preceding said election.
The electors at said election may vote for or against the revision in question. If a
majority of the electors so voting be in favor of revision, the Legislature chosen at
such election shall provide by law for a Convention to revise the Constitution, said
Convention to be held within six months after the passage of such law. The
Convention shall consist of a number equal to the membership of the House of
Representatives, and shall be apportioned among the several counties in the same
manner as members of said House.
6.Idaho (1890) Art. XX.Amendments.
Sec. 1:How amendments may be proposed.Any amendment or amendments to this
Constitution may be proposed in either branch of the legislature, and if the same
shall be agreed to by two-thirds of all the members of each of the two houses,
voting separately, such proposed amendment or amendments shall, with the yeas
and nays thereon, be entered on their journals, and it shall be the duty of the
legislature to submit such amendment or amendments to the electors of the state
at the next general election, and cause the same to be published without delay for
at least six consecutive weeks, prior to said election, in not less that one newspaper
of general circulation published in each county; and if a majority of the electors shall
ratify the same, such amendment or amendments shall become a part of this
Constitution.
Sec. 3.Revision or amendment by convention. Whenever two-thirds of the members
elected to each branch of the legislature shall deem it necessary to call a convention
to revise or amend this Constitution, they shall recommend to the electors to vote
at the next general election, for or against a convention, and if a majority of all the
electors voting at said election shall have voted for a convention, the legislature
shall at the next session provide by law for calling the same; and such convention
shall consist of a number of members, not less than double the number of the most
numerous branch of the legislature.
7.Iowa (1857) Art. X.Amendments to the Constitution.
Sec 3.Convention.At the general election to be held in the year one thousand eight
hundred and seventy, and in each tenth year thereafter, and also at such times as
the General Assembly may, by law, provide, the question, "Shall there be a
Convention to revise the Constitution, and amend the same?" shall be decided by
the electors qualied to vote for members of the General Assembly; and in case a
majority of the electors so qualied, voting at such election, for and against such
proposition, shall decide in favor of a Convention for such purpose, the General

Assembly, at its next session, shall provide by law for the election of delegates to
such Convention.
8.Michigan (1909) Art. XVII.Amendment and Revision.
Sec. 1.Amendment to constitution; proposal by legislature; submission to
electors.Any amendment or amendments to this constitution may be proposed in
the senate or house of representatives. If the same shall be agreed to by 2/3 of the
members elected to each house, such amendment or amendments, shall be entered
on the journals, respectively, with the yeas and nays taken thereon; and the same
shall be submitted to the electors at the next spring or autumn election thereafter,
as the legislature shall direct and if a majority of the electors qualied to vote for
members of the legislature voting thereon shall ratify and approve such
amendment or amendments, the same shall become part of the constitution.
Sec. 4.General revision: convention; procedure.At the Biennial Spring Election to be
held in the year 1961, in each sixteenth year thereafter and at such times as may
be provided by laws, the question of a General Revision of the Constitution shall be
submitted to the Electors qualied to vote for members of the Legislature. In case a
majority of the Electors voting on the question shall decide in favor of a Convention
for such purpose, at an Election to be held not later than four months after the
Proposal shall have been certied as approved, the Electors of each House of
Representatives District as then organized shall Elect One Delegate for each State
Representative to which the District is entitled and the Electors of each Senatorial
District as then organized shall Elect One Delegate for each State Senator to which
the District is entitled. The Delegates so elected shall convene at the Capital City on
the First Tuesday in October next succeeding such election, and shall continue their
sessions until the business of the convention shall be completed. A majority of the
delegates elected shall constitute a quorum for the transaction of business . . . No
proposed constitution or amendment adopted by such convention shall be
submitted to the electors for approval as hereinafter provided unless by the assent
of a majority of all the delegates elected to the convention, the yeas and nays being
entered on the journal. Any proposed constitution or amendments adopted by such
convention shall be submitted to the qualied electors in the manner provided by
such convention on the rst Monday in April following the nal adjournment of the
convention; but, in case an interval of at least 90 days shall not intervene between
such nal adjournment and the date of such election, then it shall be submitted at
the next general election. Upon the approval of such constitution or amendments by
a majority of the qualied electors voting thereon such constitution or amendments
shall take effect on the first day of January following the approval thereof.
9.Minnesota (1867) Art. XIV.Amendments to the Constitution.
Sec. 1.Amendments to constitution; majority vote of electors voting makes
amendment valid.Whenever a majority of both houses of the legislature shall deem
it necessary to alter or amend this Constitution, they may propose such alterations
o r amendments, which proposed amendments shall be published with the laws
which have been passed at the same session, and said amendments shall be

submitted to the people for their approval or rejection at any general election, and if
it shall appear, in a manner to be provided by law, that a majority of all the electors
voting at said election shall have voted for and ratied such alterations or
amendments, the same shall be valid to all intents and purposes as a part of this
Constitution. If two or more alterations or amendments shall be submitted at the
same time, it shall be so regulated that the voters shall vote for or against each
separately.
Sec. 2.Revision of constitution.Whenever two-thirds of the members elected to each
branch of the legislature shall think it necessary to call a convention to revise this
Constitution, they shall recommend to the electors to vote at the next general
election for members of the legislature, for or against a convention; and if a
majority of all the electors voting at said election shall have voted for a convention,
the legislature shall, at their next session, provide by law for calling the same. The
convention shall consist of as many members as the House of Representatives, who
shall be chosen in the same manner, and shall meet within three months after their
election for the purpose aforesaid.
Sec. 3.Submission to people of revised constitution drafted at convention.Any
convention called to revise this constitution shall submit any revision thereof by
said convention to the people of the State of Minnesota for their approval or
rejection at the next general election held not less than 90 days after the adoption
of such revision, and, if it shall appear in the manner provided by law that threefths of all the electors voting on the question shall have voted for and ratied such
revision, the same shall constitute a new constitution of the State of Minnesota.
Without such submission and ratication, said revision shall be of no force or eect
Section 9 of Article IV of the Constitution shall not apply to election to the
convention.

10.Nevada (1864) Art. 16.Amendments.

Sec. 1.Constitutional amendments; procedure.Any amendment or amendments to
this Constitution may be proposed in the Senate or Assembly; and if the same shall
be agreed to by a Majority of all the members elected to each of the two houses,
such proposed amendment or amendments shall be entered on their respective
journals, with the Yeas and Nays taken thereon, and referred to the Legislature then
next to be chosen, and shall be published for three months next preceding the time
of making such choice. And if in the Legislature next chosen as aforesaid, such
proposed amendment or amendments shall be agreed to by a majority of all the
members elected to each house, then it shall be the duty of the Legislature to
submit such proposed amendment or amendments to the people, in such manner
and at such time as the Legislature shall prescribe; and if the people shall approve
and ratify such amendment or amendments by a majority of the electors qualied
to vote for members of the Legislature voting thereon, such amendment or
amendments shall become a part of the Constitution.
Sec. 2.Convention for revision of constitution; procedure.If at any time the

Legislature by a vote of two-thirds of the Members elected to each house, shall

determine that it is necessary to cause a revision of this entire Constitution they
shall recommend to the electors at the next election for Members of the Legislature,
to vote for or against a convention, and if it shall appear that a majority of the
electors voting at such election, shall have voted in favor of calling a Convention,
the Legislature shall, at its next session provide by law for calling a Convention to
be holden within six months after the passage of such law, and such Convention
shall consist of a number of Members not less than that of both branches of the
Legislature. In determining what is a majority of the electors voting at such
election, reference shall be had to the highest number of votes cast at such election
for the candidates for any office or on any question.
11.New Hampshire (1784)
Art. 99.Revision of constitution provided for. It shall be the duty of the selectmen,
and assessors, of the several towns and places in this state, in warning the rst
annual meetings for the choice of senators, after the expiration of seven years from
the adoption of this constitution, as amended, to insert expressly in the warrant this
purpose, among the others for the meeting, to wit, to take the sense of the qualied
voters on the subject of a revision of the constitution; and, the meeting being
warned accordingly, and not otherwise, the moderator shall take the sense of the
qualied voters present as to the necessity of a revision; and a return of the number
of votes for and against such necessity, shall be made by the clerk sealed up, and
directed to the general court at their then next session; and if, it shall appear to the
general court by such return, that the sense of the people of the state has been
taken, and that, in the opinion of the majority of the qualied voters in the state,
present and voting at said meetings, there is a necessity for a revision of the
constitution, it shall be the duty of the general court to call a convention for that
purpose, otherwise the general court shall direct the sense of the people to be
taken, and then proceed in the manner before mentioned. The delegates to be
chosen in the same manner, and proportioned, as the representatives to the general
court; provided that no alterations shall be made in this constitution, before the
same shall be laid before the towns and unincorporated places, and approved by two
thirds of the qualified voters present and voting on the subject.
12.Oklahoma (1907) Art. XXIV.Constitutional Amendments.
Sec. 1.Amendments proposed by legislature; submission to vote.Any amendment or
amendments to this Constitution may he proposed in either branch of the
Legislature, and if the same shall be agreed to by a majority of all the members
elected to each of the two houses, such proposed amendment or amendments shall,
with the yeas and nays thereon, he entered in their journals and referred by the
Secretary of State to the people for their approval or rejection, at the next regular
general election, except when the Legislature, by a two-thirds vote of each house,
shall order a special election for that purpose. If a majority of all the electors voting
at such election shall vote in favor of any amendment thereto, it shall thereby
become a part of this Constitution.

If two or more amendments are proposed they shall be submitted in such manner
that electors may vote for or against them separately.
No proposal for the amendment or alteration of this Constitution which is submitted
to the voters shall embrace more than one general subject and the voters shall vote
separately for or against each proposal submitted; provided, however, that in the
submission of proposals for the amendment of this Constitution by articles, which
embrace one general subject, each proposed article shall be deemed a single
proposals or proposition.
Sec. 2.Constitutional convention to propose amendments or new constitution.No
convention shall be called by the Legislature to propose alterations, revisions, or
amendments to this Constitution, or to propose a new Constitution, unless the law
providing for such convention shall rst be approved by the people on a referendum
vote at a regular or special election, and any amendments, alterations, revisions, or
new Constitution, proposed by such convention, shall be submitted to the electors of
the State at a general or special election and be approved by a majority of the
electors voting thereon, before the same shall become eective Provided, That the
question of such proposed convention shall be submitted to the people at least once
in every twenty years.
13.Oregon (1859) Art. XVII.Amendments and Revisions.
Sec. 1.Method of amending constitution.Any amendment or amendments to this
Constitution may be proposed in either branch of the legislative assembly, and if the
same shall be agreed to by a majority of all the members elected to each of the two
houses, such proposed amendment or amendments shall, with the yeas and nays
thereon, be entered in their journals and referred by the secretary of state to the
people for their approval or rejection, at the next regular general election, except
when the legislative assembly shall order a special election for that purpose. If a
majority of the electors voting on any such amendment shall vote in favor thereof,
it shall thereby become a part of this Constitution. The votes for and against such
amendment, or amendments, severally, whether proposed by the legislative
assembly or by initiative petition, shall be canvassed by the secretary of state in the
presence of the governor, and if it shall appear to the governor that the majority of
the votes cast at said election on said amendment, or amendments, severally, are
cast in favor thereof, it shall be his duty forthwith after such canvass, by his
proclamation, to declare the said amendment, or amendments, severally, having
received said majority of votes to have been adopted by the people of Oregon as
part of the Constitution thereof, and the same shall be in eect as a part of the
Constitution from the date of such proclamation. When two or more amendments
shall be submitted in the manner aforesaid to the voters of this state at the same
election, they shall be so submitted that each amendment shall be voted on
separately. No convention shall be called to amend or propose amendments to this
Constitution, or to propose a new Constitution, unless the law providing for such
convention shall rst be approved by the people on a referendum vote at a regular
general election. This article shall not be construed to impair the right of the people
to amend this Constitution by vote upon an initiative petition therefor.

Sec. 2.Method of revising constitution.(1) In addition to the power to amend this

Constitution granted by section 1, Article IV, and section 1 of this Article, a revision
of all or part of this Constitution may be proposed in either house of the Legislative
Assembly and, if the proposed revision is agreed to by at least two- thirds of all the
members of each house, the proposed revision shall, with the yeas and nays
thereon, be entered in their journals and referred by the Secretary of State to the
people for their approval or rejection, notwithstanding section 1, Article IV of this
Constitution, at the next regular state-wide primary election, except when the
Legislative Assembly orders a special election for that purpose. A proposed revision
may deal with more than one subject and shall be voted upon as one question. The
votes for and against the proposed revision shall be canvassed by the Secretary of
State in the presence of the Governor and, if it appears to the Governor that the
majority of the votes cast in the election on the proposed revision are in favor of the
proposed revision, he shall, promptly following the canvass, declare, by his
proclamation, that the proposed revision has received a majority of votes and has
been adopted by the people as the Constitution of the State of Oregon or as a part
of the Constitution of the State of Oregon, as the case may be. The revision shall be
in eect as the Constitution or as a part of this Constitution from the date of such
proclamation.
14.Utah (1896) Art. 23.Amendments.
Sec. 1.Amendments; method of proposal and approval.Any amendment or
amendments to this Constitution may be proposed in either house of the
Legislature, and if two-thirds of all the members elected to each of the two houses,
shall vote in favor thereof, such proposed amendment or amendments shall be
entered on their respective journals with the yeas and nays taken thereon; and the
Legislature shall cause the same to be published in at least one newspaper in every
county of the State, where a newspaper is published, for two months immediately
preceding the next general election, at which time the said amendment or
amendments shall be submitted to the electors of the State, for their approval or
rejection, and if a majority of the electors voting thereon shall approve the same,
such amendment or amendments shall become part of this Constitution. If two or
more amendments are proposed, they shall be so submitted as to enable the
electors to vote on each of them separately.

Sec. 2.Revision of the constitution by convention. Whenever two- thirds of the

members, elected to each branch of the Legislature, shall deem it necessary to call a
convention to revise or amend this Constitution, they shall recommend to the
electors to vote at the next general election, for or against a convention, and, if a
majority of all the electors, voting at such election, shall vote for a convention, The
Legislature, at its next session, shall provide by law for calling the same. The
convention shall consist of not less than the number of members in both branches
of the Legislature.
15.Wyoming (1890) Art. XX.Amendments.

Sec. 1.Procedure for amendments.A n y amendment

or amendments to this
constitution may be proposed in either branch of the legislature, and, if the same
shall be agreed to by two-thirds of all the members of each of the two houses,
voting separately, such proposed amendment or amendments shall, with the yeas
and nays thereon, be entered on their journals, and it shall be the duty of the
legislature to submit such amendment or amendments to the electors of the state
at the next general election, and cause the same to be published without delay for
at least twelve (12) consecutive weeks, prior to said election, in at least one
newspaper of general circulation, published in each county, and if a majority of the
electors shall ratify the same, such amendment or amendments shall become a part
of this constitution.
Sec. 2.How voted for. If two or more amendments are proposed, they shall be
submitted in such manner that the electors shall vote for or against each of them
separately.
Sec. 3.Constitutional convention; provision for. Whenever two- thirds of the
members elected to each branch of the legislature shall deem it necessary to call a
convention to revise or amend this constitution, they shall recommend to the
electors to vote at the next general election for or against a convention, and if a
majority of all the electors voting at such election shall have voted for a convention,
the legislature shall at the next session provide by law for calling the same; and
such convention shall consist of a number of members, not less than double that of
the most numerous branch of the legislature.
Sec. 4.New constitution.Any constitution adopted by such convention shall have no
validity until it has been submitted to and adopted by the people.

Footnotes

1.Justices Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra.

2.Chief Justice Concepcion and Justices Fernando and Teehankee.
3.Justice Zaldivar.
4.Case G.R. No. L-36164.
5.Case G.R. No. L-36236.
6.Case G.R. No. L-36283.
7.Who withdrew as petitioner on January 25, 1973.
8.Originally, Gerardo Roxas, Ambrosio Padilla and Salvador H. Laurel. Now, after the
withdrawal of the latter, the first two (2) only.

9.Namely, Jovito R. Salonga, Ramon V. Mitra, Jr. and Eva Estrada-Kalaw.

10.Napoleon V. Dilag, et al. v. Executive Secretary, et al.
11.Araneta v. Dinglasan, 84 Phil. 431, 437-438. See, also, Gonzales v. Commission on
Elections, L-28196 & L-28224, Nov. 9, 1967. Italics ours.
12.Art. VI, sec. 20(1), Constitution.
13.Art. VII, sec. 10(7), Constitution.
14.Italics ours.
15.See page 4, last paragraph, of his Comment dated Feb. 6, 1973.
16In re Opinion of Justices, 107 Atl. 673, 5 A.L.R. 1412; Crawford v. Gilchrist, 59 So.
Rep. 963; McAdams v. Henley, 273 S.W. 355; Egbert v. City of Dunseith, 74 N.D.
1, 168 A.L.R. 621, 24 N.W. 2d. 907; State ex rel. Landis, Atty. Gen. v. Thompson,
163 So. Rep. 270; St. Louis Brewing Association v. Moore, 64 L. ed. 947; Ellingham
v. Dye, 99 N.E. Rep. 1, 18; Johnson v. Craft, 87 So. Rep. 375.
17.Mun. Malabang v. Benito, L-28113, Mar. 28, 1969; NAWASA v. Piguing, et al., L35573, Oct. 11, 1968; Fernandez v. P. Cuerva & Co., L-21114, Nov. 25, 1967;
Gonzales v. Commission on Elections, L-28224, Nov. 29, 1967; Bara Lidasa v.
COMELEC, L-28089, Oct. 25, 1967; Mun. of San Juan v. NAWASA, L-22047, Aug.
31, 1967; Mun. of San Joaquin v. Siva, L-19870, Mar. 18, 1967; Pelayo v. Auditor
General, L-23825, Dec. 24, 1965; Philippine Constitution Association v. Gimenez, L23326, Dec. 18, 1965; Mun. of La Carlota v. NAWASA, L-20232, Sept. 30, 1964;
Guevarra v. Inocentes, L-25577, Mar. 15, 1966; Gillera v. Fernandez, L-20741, Jan.
31, 1964; Siguiente v. Secretary of Justice, L-20370, Nov. 29, 1963; Herrera v.
Liwag, L-20079, Sept. 30, 1963; Aytona v. Castillo, L-19313, Jan. 19, 1962; La
Mallorca, etc. v. Ramos, et al., l-15476, Sept. 19, 1961; Tan v. De Leon, et al., L15254, Sept. 16, 1961; Macias v. Commission on Elections, L-18684, Sept. 14,
1961; Philippine Tobacco Flue-During & Redrying Corp. v. Sabugo, et al., L-16017,
Aug. 31, 1961; Miller v. Mardo, L-15138, July 31, 1961; Cu Bu Liong v. Estrella, et
al., L-14212, July 31, 1961; Pampanga Sugar Development Co., Inc. v. Fuentes, et
al., L-14738, July 31, 1961; Earnshaw Docks & Honolulu Iron Works v. Mardo, et
al., L-14759, July 31, 1961; Liwanag v. Central Azucarera Don Pedro, L-15372, July
31, 1961; Lecura v. Regional Oce No. 3, etc., L-15582, July 31, 1961; Pitogo v.
Sen Bee Trading Co., et al., L-15693, July 31, 1961; Pascual v. Sec. of Public Works
and Communications, L-10405, Dec. 29, 1960; Corminas, Jr. v. Labor Standards
Commission, L-14837, June 30, 1961; City of Bagiuo v. NAWASA, L-12032, Aug.
31, 1959; City of Cebu v. NAWASA, L-12892, April 20, 1960; Montes v. Civil Service
Board of Appeals, 101 Phil. 490; Rutter v. Esteban, 93 Phil. 68; Araneta v.
Dinglasan, 84 Phil. 368; Borromeo v. Mariano, 41 Phil. 322.
18.G.R. Nos. L-35925, L-35929, L-35940, L-35941, L-35942, L-35948, L-35953, L35961, L-35965 and L-35979, decided on January 22, 1973.
19.L-33964, Teodosio Lansang, et al. v. Brigadier-General Eduardo M. Garcia; L-33965,
Rogelio V. Arienda v. Secretary of National Defense, et al.; L-33973, Luzvimindo

David v. Gen. Eduardo Garcia, et al.; L-33962, Felicidad G. Prudente v. General

Manuel Yan, et al.; L-34004, Domingo E. de Lara v. Brigadier-General Eduardo M.
Garcia; L-34013, Reynaldo Rimando v. Brig. Gen. Eduardo M. Garcia; L-34039,
Carlos C. Rabago v. Brig. Gen. Eduardo Garcia, et al.; L-34265, Antolin Oreta, Jr. v.
Gen. Eduardo Garcia, et al.; and L-34339, Gary B. Olivar, et al. v. Gen. Eduardo
Garcia, et al.
20.5 Phil. 87.
21.91 Phil. 882.
22.G.R. Nos. L-28196 and L-28224, Nov. 9, 1967.
23.78 Phil. 1.
24.Supra.
25.In re McConaughy, 119 N.W. 408, 417.
26.103 Phil. 1051, 1067.
27.119 N.W. 408, 411, 417.
28.92 Ky. 589, 18 S.W. 522, 523.
29.Citing Koehler v. Hill, 60 Iowa 543, 14 N.W. Rep. 738, and 15 N.W. Rep. 609; State v.
Tufly, 19 Nev. 391, 12 Pac. Rep. 835.
30.Angara v. Electoral Commission, 63 Phil. 139, 157. Italics ours.
31.12 L. ed. 581 (1849).
32.Luther v. Borden, supra, p. 598. Italics ours.
33.In re McConaughy, supra p. 416. Italics ours.
34.369 U.S. 186, 7 L. ed. 2d. 663, 82 S.Ct. 691 (March 26, 1962).
35.895 U.S. 486, 23 L. ed. 2d. 491, 89 S. Ct. 1944 (1969).
36.In re McConaughy, 119 N.W. 408, 415. Italics ours. The observation as to the
uniformity of authorities on the matter has been reiterated in Winget v. Holm, 244
N.W. 329, 332.
37.Baker v. Carr, 369 U.S. 186, 7 L. ed. 2d. 663, 686, 82 S. Ct. 691.
38.See p. 5 of the Petition.
39.Italics ours.
40.The Framing of the Philippine Constitution, by Aruego, Vol. I, p. 215.
41.The Framing of the Philippine Constitution, by Aruego, Vol. I, pp. 215, 221, 227-228.

42.Ibid., pp. 222-224.

43.Id., pp. 224-227.
44."SEC. 431.Qualications prescribed for voters. Every male person who is not a
citizen or subject of a foreign power, twenty-one years of age or over, who shall
have been a resident of the Philippines for one year and of the municipality in
which he shall oer to vote for six months next preceding the day of voting is
entitled to vote in all elections if comprised within either of the following three
classes:
"(a)Those who, under the laws in force in the Philippine Islands upon the twenty-eighth
day of August, nineteen hundred and sixteen, were legal voters and had exercised
the right of suffrage.
"(b)Those who own real property to the value of ve hundred pesos, declared in their
name for taxation purposes for a period of not less than one year prior to the date
of the election, or who annually pay thirty pesos or more of the established taxes.
"(c)Those who are able to read and write either Spanish, English, or a native language.
"SEC. 432.Disqualifications. The following persons shall be disqualified from voting:
"(a)Any person who, since the thirteenth day of August, eighteen hundred and ninetyeight, has been sentenced by nal judgment to suer not less than eighteen
months of imprisonment, such disability not having been removed by plenary
pardon.
"(b)Any person who has violated an oath of allegiance him to the United States.
"(c)Insane or feeble-minded persons.
"(d)Deaf-mutes who cannot read and write.
"(e)Electors registered under subsection (c) of the next preceding section who, after
failing to make a sworn statement to the satisfaction of the board of inspectors at
any of its two meeting for registration and revision, that they are incapacitated for
preparing their ballots due to permanent physical disability, present themselves at
the hour of voting as incapacitated, irrespective of whether such incapacity be real
or feigned."
45.L-34150, October 16 and November 4, 1971.
46."For taking action on any of the above enumerated measures, majority vote of all the
barrio assembly members registered in the list of the barrio secretary is
necessary."
47."All duly registered barrio assembly members qualied to vote may vote in the
plebiscite. Voting procedures may be made either in writing as in regular elections,
and/or declaration by the voters to the board of election tellers. The board of
election tellers shall be the same board envisioned by section 8, paragraph 2 of
this Act, in case of vacancies in this body, the barrio council may fill the same."

48.Edwards v. Lesueur, 33 S.W. 1130; Johnson v. Grand Forks County, 113 N.W. 1071;
Ellingham v. Dye (1912), 178 Ind. 236, 99 N.E. 1; State v. Marcus, 160 Wis. 354,
152 N.W. 419.
49.In Alcantara v. Secretary of the Interior, 61 Phil. 459, this Court held that when a
state constitution enumerates and xes the qualications of those who may
exercise the right of surage , the legislature cannot take from nor add to said
qualications unless the power to do so is conferred upon it by the constitution
itself."
Since surage, according to Webster, is a voice given not only in the choice of a man for
an oce or trust, but, also, in deciding a controverted question, it follows,
considering the said ruling in Alcantara, that the constitutional qualications for
voters apply equally to voters in elections to public oce and to voters in a
plebiscite.
Similarly, the Revised Election Code provides in its section 2 that all elections of public
ocers by the people and all votings in connection with plebiscites shall be
conducted in conformity with the provisions of said Code.
50.Republic Act No. 6388, section 101 of which, in part, provides:
"SEC. 101.Qualications prescribed for a voter. Every citizen of the Philippines, not
otherwise disqualied by law, twenty-one years of age or over, able to read and
write, who shall have resided in the Philippines for one year and in the city,
municipality or municipal district wherein he proposes to vote for at least six
months immediately preceding the election, may vote at any election.

"xxx xxx xxx"

51."SEC. 102.Disqualifications. The following persons shall not be qualified to vote:

"(a)Any person who has been sentenced by nal judgment to suer an imprisonment of
not less than one year, such disability not having been removed by plenary
pardon: Provided, however, That any person qualified to vote under this paragraph
shall automatically reacquire the right to vote upon expiration of ten years after
service of sentence unless during such period, he shall have been sentenced by
final judgment to suffer an imprisonment of not less than one year.
"(b)Any person who has been adjudged by nal judgment by competent court of having
violated his allegiance to the Republic of the Philippines.
"(c)Insane or feeble-minded persons.
"(d)Persons who cannot prepare their ballots themselves."

52."SEC. 10.. . .
"The following persons shall not be qualified to vote:
"a.Any person who has been sentenced by nal judgment to suer one year or more of
imprisonment, within two years after service of his sentence;
"b.Any person who has violated his allegiance to the Republic of the Philippines; and
"c.Insane or feeble-minded persons."
53.20 C.J., 179-181, quoted in Demetrio v. Lopez, 50 Phil. 45, 60. See, also, Garchitorena
v. Crescini, 39 Phil. 258.
54.Baldauf v. Gunson, 8 P. 2d. 265. See, also, Martin v. McGarr, 117 P. 323, Glenn v.
Gnau, 64 S.w. 2d. 168, Italics ours.
55.L-33325 and L-34043, December 29, 1971.
56.Hopkins v. City of Duluth, 83 N.W. 536, 538. Italics ours.
57.Maddox v. Board of State Canvassers, 149 P. 2d. 112, 115. Italics ours.
58.Port of Palm Beach District v. State, 22 So. 2d. 581, 582-583. Italics ours.
59.Art. X, section 1 of the 1935 Constitution.
60.Ten (10) years.
61.Art. X, section 2 of the 1935 Constitution.
62.Ibid.
63.Art. X, section 3 of the 1935 Constitution.
64."SEC. 5.Organization of the Commission on Elections.
its own rules of procedure. Two members of the
quorum. The concurrence of two members
pronouncement or issuance of a decision, order or

The Commission shall adopt

Commission shall constitute a
shall be necessary for the
ruling.

"The Commission shall have an executive ocer and such other subordinate ocers and
employees as may be necessary for the ecient performance of its functions and
duties, all of whom shall be appointed by the Commission in accordance with the
Civil Service Law and rules.
"The executive ocer of the Commission, under the direction of the Chairman, shall have
charge of the administrative business of the Commission, shall have the power to
administer oaths in connection with all matters involving the business of the
Commission, and shall perform such other duties as may be required of him by
the Commission.
"SEC. 6.Power of the Commission to Investigate and to Hear Controversy and Issue
Subpoena. The Commission or any of the members thereof shall, in compliance

with the requirement of due process, have the power to summon the parties to a
controversy pending before it, issue subpoenae and subpoenae duces tecum and
otherwise take testimony in any investigation or hearing pending before it, and
delegate such power to any ocer of the Commission who shall be a member of
the Philippine Bar. In case of failure of a witness to attend, the Commission, upon
proof of service of the subpoenae to said witness, may issue a warrant to arrest
the witness and bring him before the Commission or ocer before whom his
attendance is required. The Commission shall have the power to punish contempts
provided for in the Rules of Court under the same controversy submitted to the
Commission shall after compliance with the requirements of due process be heard
and decided by it within thirty days after submission of the case.
"The Commission may, when it so requires, deputize any member of any national or local
law enforcement agency and/or instrumentality of the government to execute
under its direct and immediate supervision any of its nal decisions, orders,
instructions or rulings.
"Any decision, order or ruling of the Commission on election controversies may be
reviewed by the Supreme Court by writ of certiorari in accordance with the Rules
of Court or such applicable laws as may be enacted.
"Any violation of any nal executory decision, order or ruling of the Commission shall
constitute contempt thereof."
65.64 S.W.2d. 168.
66.L-35538, Roces, et al. v. Secretary of National Defense, et al.; L-35539, Diokno v.
Hon. Enrile, et al.; L-35540, Soliven, et al. v. Secretary of National Defense, et al.; L35546, Aquino, Jr., et al. v. Hon. Enrile, et al.; L-35547, Garcia II v. Hon. Enrile, et
al.; L-35567, Doronilla, et al. v. Secretary of National Defense, et al.; L-35573,
Rondon v. Hon. Enrile, et al.
67."PRESIDENTIAL DECREE NO. 86-A
"STRENGTHENING AND DEFINING THE ROLE OF BARANGAYS (CITIZENS ASSEMBLIES)
"WHEREAS, on the basis of preliminary and initial reports from the eld as gathered from
barangays (citizens assemblies) that have so far been established, the people
would like to decide for themselves questions or issues, both local and national,
affecting their day to day lives and their future;
"WHEREAS, the barangays (citizens assemblies) would like themselves to be the vehicle
for expressing the views of the people on important national issues;
"WHEREAS, such barangays (citizens assemblies) desire that they be given legal status
and due recognition as constituting the genuine, legitimate and valid expression of
the popular will; and
"WHEREAS, the people would like the citizens assemblies to conduct immediately a
referendum on certain specied questions such as the ratication of the new
Constitution, continuance of martial law, the convening of Congress on January
22, 1973, and the elections in November 1973 pursuant to the 1935 Constitution.

"NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of

the powers vested in me by the Constitution as Commander-in-Chief of all Armed
Forces of the Philippines, do hereby declare as part of the law of the land the
following:
"1.The present barangays (citizens assemblies) are created under Presidential Decree
No. 86 dated December 31, 1973, shall constitute the base for citizen participation
in governmental aairs and their collective views shall be considered in the
formulation of national policies or programs and, wherever practicable, shall be
translated into concrete and specific decision;
"2.Such barangays (citizens assemblies) shall consider vital national issues now
confronting the country, like the holding of the plebiscite on the new Constitution,
the continuation of martial rule, the convening of Congress on January 22, 1973,
and the holding of elections in November 1973, and others in the future, which
shall serve as guide or basis for action or decision by the national government;
"3.The barangays (citizens assemblies) shall conduct between January 10 and 15, 1973,
a referendum on important national issues, including those specied in paragraph
2 hereof, and submit the results thereof to the Department of Local Governments
and Community Development immediately thereafter, pursuant to the express will
of the people as reected in the reports gathered from the many thousands of
barangays (citizens assemblies) throughout the country.
"4.This Decree shall take effect immediately.
"Done in the City of Manila, this 5th day of January, in the year of Our Lord, nineteen
hundred and seventy-three." (Italics ours.)
68.McKinney v. Barker, 180 Ky. 526, 203 S.W. 303, 304. Italics ours.
69.Art. VII, section 2, 1935 Constitution.
70.Michael W. Roche v. Lamb, 306 N.Y.S. 2d. 515 (Dec. 17, 1969); State ex rel. Sathre v.
Bryne, 258 N.W. 121; State ex rel. Shriver v. Hayes, 76 N.E. 2d. 869; Smith v.
Bangham, 76 P 2d. 1022; McKim v. Brast, 117 S.E. 875; Head v. Wood, 107 So.
854; State ex rel. Watson v. Pigg, 46 N.E. 2d. 232.
71.See cases cited in the preceding footnote. See, also, Tiegs v. Patterson, 318 P. 2d.
588; State ex rel. Brown v. St. Joseph Circuit Court, 95 N.E. 2d. 632; Williamson v.
State Election Board, 431 P. 2d. 352; Baker v. Conway, 108 So. 18; Cohoon v.
Swain, 5 S.E. 2d. 1; State ex rel. Mitchell v. Walcott, 83 A. 2d. 762; Doyle v. Ries,
285 N.W. 480; Grossglaus v. Board of Elections of Stark County, 88 N.E. 2d. 245;
Walker v. Hughes, 36 A. 2d. 47; Reese v. Dempsey, 152 P. 2d. 157; Dodd v.
Gower, 62 S.W. 2d. 1; Galloway v. Bradburn, 82 S.W. 1013; Hagan v. Henry, 76
S.W. 2d. 994.

72.106 Minn 392, 119 N.W. 408, 409.

73.63 N.J. Law, 289, cited in In re McConaughy, supra.

74.78 Ark. 439, 96 S.W. 396, cited in In re McConaughy, supra.

75.See cases listed on pages 105-106, footnotes 56, 57 and 58.
76.On December 19, 1972.
77.24 Kansas 700, 714. See, also, State ex rel. Williams v. Robb, 183 P. 2d. 223, 228;
Harris v. Shanahan, 387 P. 2d. 771, 784, 785.
78.369 U.S. 186, 7 L.ed. 2d. 663, 684, citing Chaselton Corp. v. Sinclair, 264 U.S. 543,
547, 548, 68 L. ed. 841, 843, 44 S. Ct. 405.
79.Art. VII, section 10, paragraph (1).
80.101 Va. 529, 44 S.E. 754.
81.Marifosque, et al. v. Luna, 101 Phil. 1223 (unreported); 37 Am. Jur. 669; 62 C.J.S.
749-750; Guevara v. Inocentes, L-25577, March 15, 1966.
82.Which, in some respects, is regarded as an organ of the Administration, and the
news items published therein are indisputably censored by the Department of
Public Information.
83.Daily Express, November 29, 1972, p. 4. Italics ours.
84.231 U.S. 28, 58 L. ed. 107, 114, 34 S. Ct. 1.
85.Baker v. Carr, 369 U.S. 186, 7 L. ed. 2d. 663, 82 S.Ct. 691.
86.Justice Barredo's opinion in the plebiscite cases.
87.Joint Opinion of Justices Makalintal and Castro, p. 153.
88.Justice Barredo's language.
89.At p. 153, joint opinion of Justices Makalintal and Castro.
90.Joint Opinion of Justices Makalintal and Castro, p. 153.
91.At p. 8, Idem.
*The undersigned (Justice Querube C. Makalintal) who had reserved his right to do so,
led a separate dissenting opinion when the Court denied a motion for
reconsideration, and voted in favor of the validity of the questioned Resolution. Mr.
Justice Enrique M. Fernando joined in the dissent.
*Thus by Presidential Decree No. 86 what the Constitutional Convention itself had
proposed unsuccessfully as an amendment to the 9135 Constitution, reducing the
voting age from 21 to 18, but the submission of which to a plebiscite was declared
invalid by this Court in Tolentino vs. COMELEC, became a reality of an even more
far-reaching import since fteen-year olds were included in the Citizens
Assemblies.

*According to the Solicitor General 92 Congressmen and 15 Senators (both numbers

constituting majorities) have expressed their option.
*Luther v. Borden, 48 U.S. (7 Haw.) 1, 12 L. Ed. 581 (1849).
1.Charito Planas vs. Comelec, et al., L-35925, January 22, 1973; Pablo C. Sanidad vs.
Comelec, L-35929, January 22, 1973; Gerardo Roxas, etc., et al. vs. Comelec, et
al., L-35940, January 22, 1973; Eddie B. Monteclaro vs. Comelec, et al., L-35941,
January 22, 1973; Sedfrey A. Ordoez, et al., vs. The National Treasurer of the
Philippines, et al., L-35942, January 22, 1973; Vidal Tan, et al. vs. Comelec, et al., L35948, January 22, 1973; Jose W. Diokno, et al. vs. Comelec, L-35953, January 22,
1973; Jacinto Jimenez vs. Comelec, et al., L-35961, January 22, 1973; Raul M.
Gonzales vs. Comelec, et al., L-35965, January 22, 1973 and Ernesto Hidalgo vs.
Comelec, et al., L-35979, January 22, 1973.
2.Executive Agreements are not included in the corresponding provision of the 1935
Constitution.
3.It must be recalled that in the Tolentino case, the Constitutional Convention intended to
submit one amendment which was to form part of the Constitution still being
prepared by it separately from the rest of the other parts of such constitution still
unnished, and We held that a piece-meal submission was improper. We had no
occasion to express any view as to how a whole new Constitution may be ratified.
*In 1880, he also wrote his "Constitutional Law." Judge Cooley, who was born in Attica,
New York in 1824, died in 1898. Judge Cooley was also professor and later dean of
the Law Department of the University of Michigan and Justice of the State Supreme
Court of Michigan from 1864 to 1885, when he failed to win re-election to the
court.
1.Charito Planas v. Commission on Elections, et al., L-35925; Pablo C. Sanidad v.
Commission on Elections, L-35929; Gerardo Roxas, etc., et al. v. Commission on
Elections, et al., L-35940; Eddie B. Monteclaro v. The Commission on Elections, et
al., L-35941; Sedfrey A. Ordoez, et al. v. The National Treasurer of the Philippines,
et al., L-35942; Vidal Tan, et al. v. Commission on Elections, et al., L-35948; Jose
W. Diokno, et al. v. The Commission on Elections, L-35953; Jacinto Jimenez v.
Commission on Elections, et al., L-35961; Raul M. Gonzales v. The Honorable
Commission on Elections, et al., L-35965; Ernesto Hidalgo v. Commission on
Elections, et al., L-35979.
2.See Taada, et al. v. Cuenco, L-10520, Feb. 28, 1951; Baker v. Carr, 369 U.S. 186
(1962).
3.See 16 Am. Jur. 2d. p. 468, Note 14, and cases cited therein.
4.Cooke v. Iverson, 108 Minn. 388, 122 NW 251.
5.L-38196, November 9, 1967, 21 SCRA 774.
6.83 Phil. 1957.
7.McConaughy v. Secretary of State, 119 N.W. 408, 413; 32A Words and Phrases p.

516. See also the plebiscite cases, mentioned in footnote 1, ante.

8.Cooley, Constitutional Limitation, 8th Ed., Vol. I, p. 82.
9.39 Phil. 258, 268.
10.69 Phil. 199, 204.
11.70 Phil. 28, 31.
1.Memorandum for Respondents, 2.
2.According to the 1935 Constitution: "The Congress in joint session assembled, by a
vote of three-fourths of all the members of the Senate and of the House of
Representatives voting separately may propose amendments to this Constitution
or call a convention for that purpose. Such amendments shall be valid as part of
this Constitution when approved by a majority of the votes cast at an election at
which the amendments are submitted to the people for their ratication." Art. XV,
Section 1.
3.Lerner, Ideas are Weapons, 426 (1939). Earlier, in this collection of essays, Lerner
made this not-entirely-inaccurate observation: "No governmental institution that
consists of a group of legal technicians appointed for life can ever hope to cope
with, much less solve, the exigent problems of our polity." Ibid, 231. He was
referring of course to the Supreme Court of the United States.
4.Frankfurter, Mr. Justice Holmes and the Supreme Court, 25-26 (1938).
5.Black, The People and the Court (1960).
6.Murphy, Elements of Judicial Strategy (1964).
7.Cf. Angara v. Electoral Commission, 63 Phil. 139 (1936); Taada v. Cuenco, 103 Phil.
1051 (1957): Vera v. Arca, L-25721, May 26, 1969, 28 SCRA 351.
8.Gonzales v. Commission on Elections, L-28196, Nov. 9, 1967, 21 SCRA 774.
9.Tolentino v. Commission on Elections, L-24150, Oct. 16, 1971. 41 SCRA 702.
10.Planas v. Commission on Elections, L-35925, Jan. 25, 1973.
11.256 US 368 (1921).
12.Ibid, 374-375.
13.L-33964, Dec. 11, 1971, 42 SCRA 448.
14.Ibid, 504-505.
15.Dodd, Judicially Nonenforceable Provisions of Constitutions, in I Selected Essays on
Constitutional Law 355, 387 (1938).
16.Ibid, 395.

17.Weston, Political Questions, I Selected Essays on Constitutional Law 418, 422 (1938).
18.Cf. Bickel, The Least Dangerous Branch (1962).
19.Cf. Freund, On Understanding the Supreme Court (1950). Also his The Supreme
Court of the United States (1962).
20.Laurel, S., VII Proceedings of the Philippine Constitutional Convention (1934-1935),
Appendix L, 800.
21.65 Phil. 56 (1937).
22.Ibid, 96.
23.63 Phil. 139 (1936).
24.L-35925, January 22, 1973.
25.Rostow, The Democratic Character of Judicial Review in Selected Essays on
Constitutional Law 1938 1962, 1, 2 (1963).
26.Ibid.
27.Ibid, 3.
28.Ibid, 3-4. The decision of Justice Frankfurter referred to is that of Rochin v. People of
California, 342 US 165 (1952).
29.Mason, The Supreme Court from Taft to Warren, 154 (1967). The words of Justice
Frankfurter found in his opinion in Stein v. New York, 346 US 156 (1953).
30.Konefsky, The Legacy of Holmes and Brandeis, 293 (1956).
31.Corwin, Judicial Review in I Selected Essays on Constitutional Law, 449, 450 (1938).
32.1 Cranch 137 (1803).
33.Curtis, Lions Under the Throne, 12 (1947).
34.Addresses and Papers of Charles Evans Hughes, 139-140 (1908).
35.Jackson, Robert H. The Struggle for Judicial Supremacy, 3 (1949).
36.Haines, Charles Grove, The Role of the Supreme Court in American Government and
Politics, 1789-1835, 3 (1960).
37.369 US 186.
38.395 US 486.
39.328 US 549 (1946).
40.Ibid, 556.

41.Cf. Wesberry v. Sanders, 376 US 1, 11 L ed 2d 481, 84 S Ct. 526 (1964); Wright v.

Rockefeller, 376 US 52, 11 L ed 2d 512, 84 S Ct 603 (1964); Reynolds v. Sims, 377
US 533, 12 L ed 2d 506, 84 S Ct 1362 (1964); WMCA v. Lomenzo 377 US 633, 12
L ed 2d 568, 84 S Ct. 1418 (1964); Maryland Committee v. Tauses, 377 US 656,
12 L ed 2d 595, 84 S Ct. 1442 (1964); Davis v. Mann, 377 US 678, 12 L ed 2d 609,
84 S Ct. 1453 (1964); Roman v. Sincock, 377 US 695, 12 L ed 2d 620, 84 S Ct.
1462 (1964); Lucas v. Colorado General Assembly, 377 US 713, 12 L ed 2d 632,
84 S Ct. 1472 (1964); Fortson v. Dorsey, 379 US 433, 13 L ed 2d 401, 85 S Ct.
498 ( 1965); Burns v. Richardson, 384 US 73,16 L ed 2d 376, 86 S Ct. 1286
(1966); Sailors v. Kent Board of Education, 387 US 105, 18 L ed 2d 650, 87 S Ct.
1549 (1967); Dusch v. Davis, 387 US 112, 18 L ed 2d 656, 87 S Ct. 1554 ( 1967).
42.77 Phil. 192 (1946).
43.Ibid, 56.
44.New York Times Company v. United States, 29 L ed. 822 (1971).
45.Wechsler, Toward Neutral Principles of Constitutional Law, 72 Harv. Law Review 77
(1959). It is the first essay in his Principles, Politics and Fundamental Law.
46.The principal articles are: Pollak, Constitutional Adjudication: Relative or Absolute
Neutrality, 11 J. Pub. L. 48 (1962); Rostow, American Legal Realism and the Sense
of Profession, 34 Rocky Mt. L. Rev. 123, 136-46 (1962); Henkin, Some Reections
on Current Constitutional Controversy, 109 U Pa L. Rev. 637 (1961); Henson, A
Criticism of Criticism: In re Meaning, 29 Fordham L. Rev. 553 (1961); Miller, A Note
on the Criticism of Supreme Court Decisions, 10 J. Pub. L. 139 (1961); Wright, The
Supreme Court Cannot be Neutral 40 Texas L. Rev. 599 (1961); Arnold, Professor
Hart's Theology, 73 Harv. L. Rev. 1298 (1960); Black, The Lawfulness of the
Segration Decisions, 69 Yale L. J. 421 (1960); Griswold, Of Time and Attitudes:
Professor Hart and Judge Arnold, 74 Harv. L. Rev. 81 (1960); Karst, Legislative
Facts in Constitutional Litigation, 1960 Supreme Court Rev. 75; Miller and Howell,
The Myth of Neutrality in Constitutional Adjudication, 27 U. Chi. L. Rev. 661 (1960);
Mueller & Schwartz, The Principle of Neutral Principles, 7 U.C.L.A.L. Rev. 571
(1960); Hart, Forward, The Time Chart of the Justices, 73 Harv. L. Rev. 84 (1959);
Pollak, Racial Discrimination and Judicial Integrity: A Reply to Professor Wechsler,
108 U. Pa L. Rev. 1 (1959).

47.Cahn, Supreme Court and Supreme Law, 40 (1954).

48.Cf. Taada v. Cuenco, 103 Phil. 1051, 1089 (1957).
49.Collier v. Frierson, 124 Ala. 100 (1854); Green v. Weller, 32 Miss. 650 (1856); Penn v.
Tollison, 26 Ark. 545 (1871); Koehler v. Hill, 60 Iowa 543, 14 NW 738 (1883);
McMillan v. Blattner, 67 Iowa 287, 25 NW 245 (1885); State v. Davis, 20 Neb. 220,
19 Pac. 894 (1888); State v. Tooker, 15 Mont. 8, 37 Pac. 840 (1894); Russie v.
Brazzell, 128 Mo. 93, 30 SW 526 (1895); State v. Powell, 77 Miss. 543, 27 So. 927
(1900); State v. Brookhart, 113 Iowa 250, 84 NW 1064 (1901); In re Denny, 156
Ind. 104, 59 NE 359 (1901); Utter v. Moseley, 16 Idaho 274, 100 P. 1058 (1909);

Willis v. Kalbach, 109 Va. 475, 64 SE 342 (1909); People ex rel. Swift v. Luce, 74
Misc. Rep. 551, 133 US 9 (1912); McCreary v. Speer, 156 Ky. 783, 162 SW 99
(1914); State v. Donald, 160 Wis. 21, 151 NW 331 (1915); State v. Marcus, 160
Wis. 354, 152 NW 419 (1915); State v. Campbell, 94 Ohio St. 403, 115 NE 29
(1916); In re Opinion of Justices, 226 Mars. 607, 115 NE 921 (1917); Scott v.
Vouchan, 202 Mich. 692, 168 NW 709 (1918); Hooper v. State, 89 So. 593, 206
Ala. 371 (1921); Switzer v. State, 103 Ohio St. 306, 133 NE 552 (1921); Johnson v.
Craft, 87 So. 375, 205 Ala. 386 (1921); In re Opinion of the Justices, 237 Mars.
589, 130 NE 202 (1921); Power v. Robertson, 130 Miss. 188, 93 So. 769 (1922);
Hamilton v. Deland, 191 NW 829, 221 Mich. 541 (1928); In re Initiative Petition, 89
Okl. 124, 214 P. 186 (1923); Armstrong v. King, 281 Pa. 207, 126 A. 263 (1924);
McAdams v. Henley, 169 Ark. 97, 273 SW 355 (1925); Heinitsh v. Floyd, 130 SC
434, 126 SE 336 (1925); State v. Zimmerman, 187 Wis. 180, 204 NW 803 (1925);
Brown v. City of New York, 125 Misc. Rep. 1, 210 NYS 786 (1926); State ex rel.
Bahns v. City of New Orleans, 163 La. 777, 112 So. 718 (1927); Duncan v. Record
Pub. Co., 145 SC 196, 143 SE 31 (1928); Lane v. Lukens, 48 Idaho 517, 283 P. 5
(1929); School Dist. of City of Pontiac v. City of Pontiac, 262 Mich. 338, 247 NW
474 (1933); Collier v. Gray, 116 Fla. 845, 157 So. 40 (1934); In re Opinion to
Governor, 55 R.I. 56, 178 A. 433 (1935); State ex rel Landis v. Thompson, 120 Fla.
860, 163 So. 270 (1935); Tausig v. Lawrence, 328 Pa. 408, 197 A. 235 (1938);
Downs v. City of Bromingham, 240 Ala. 177, 198 So. 231 (1940); Graham v.
Jones, 198 La. 507, 3 So. 2d 761 (1941); Pearson v. Taylor, 159 Fla. 775, 32 So.
2d 826 (1947); Palmerv. Dunn, 216 SC 558, 59 SE 158 (1950).
50.Cf. Wells v. Bain, 75 Pa. St. 39, 15 Am. Rep. 563 (1874); In re Senate File No. 31, 25
Neb. 864, 41 NW 981 (1889); State v. Grey, 21 Nev. 378, 32 Pac. 190 (1893);
Nesbit v. People, 19 Colo. 441, 36 Pac. 221 (1894); Hays v. Hays, 5 Idaho 154, 47
P. 732 (1897); Lovett v. Ferguson, 10 SD 44, 71 NW 756 (1897); Russell v. Grey,
164 Mo. 69, 63 SW 849 (1901); Gabbert v. Chicago, R.I.Ry. Co. 171 Mo. 84, 70
SW (1902); People v. Sours, 31 Colo. 369, 102 74 P. 167 (1903); People v.
Loomis, 135 Mich. 556, 98 NW 262 (1904); West v. State, 50 Fla. 154, 39 So. 412
(1905); State v. Wilmett, 78 Neb. 379, 110 NW 113 (1907); Farrell v. Port of
Columbia, 50 Or. 169, 93 P. 254 (1908); In re McConaughy, 106 Minn. 392, 119
NW 408 (1909); Fletcher v. Giord, 20 Idaho 18, 115 P. 824 (1911); Hammond v.
Clark, 136 Ga. 313, 71 SE 479 (1911); Crawford v. Gilchrist, 64 Fla. 41, 59 So. 963
(1912); Cudihee v. Phelps, 76 Wash. 314, 136 P. 367 (1913); State v. Fairley, 76
Wash. 332, 136 P. 374 (1913); Tabor v. City of Walla Walla, 77 Wash. 579, 137 P.
1040 (1914); State v. Alderson, 49 Mont. 387, 142 P. 210 (1914); Ramsey v.
Persinger, 43 Okl. 41, 141 P. 13 (1914); Cress v. Estes, 43 Okl. 213 P. 411 (1914);
Cooney v. Foote, 142 Ga. 647, 83 SE 537 (1914); Hildreth v. Taylor, 117 Ark. 465,
175 SW 40 (1915); Jones v. McDade, 200 Ala. 230, 75 So. 988 (1917); State v.
Wetz, 40 N.D. 299, 168 NW 835 (1918); Ex Parte Ming, 42 Nev. 472, 181 P. 319
(1919); Lee v. Price, 54 Utah, 474, 181 P. 948 (1919); Erwin v. Nolan, 280 Mo.
401, 217 SW 752 (1922); Boyd v. Olcott, 102 Or. 327, 202 P. 431 (1921);
Thompson v. Livingston, 116 S.C. 412, 107 SE 581 (1921); Thrailkill v. Smith, 106
Ohio St. 1, 138 NE 532 (1922); Brawner v. Curran, 141 Ind. 586, 119 A. 250
(1922); Fahey v. Hackmann, 291 Mo. 351 SW 752 (1922); Goolsby v. Stephens,
155 Ga. 529, 117 SE 439 (1923); Manos v. State, 98 Tax. Cr. 87, 263 SW 310
(1924); State v. Zimmermann, 187 Wis. 180, 208 NW 803 (1925); Taylor v. King,
284 Pa. 285, 130 A. 407 (1925); Board of Liquidation of State Debt of Louisiana v.

Whitney-Central Trust and Savings Bank, 168 La. 560, 122 So. 850 (1929); State
v. Cline, 118 Neb. 150, 224 NW 6 (1929); California Teacher's Ass'n. v. Collins, 1
Cal. 2d 202, 34 P. 2d 134 (1934); Collier v. Gray, 116 Fla. 845, 157 So. 40 (1934);
State ex rel. v. State Bldg. Commission v. Smith, 335 Mo. 840, 74 SW 2d 27
(1934); Mayer v. Adams, 182 Ga. 524, 186 SE 420 (1936); Doody v. State ex rel.
Mobile County, 233 Ala. 287, 171 So. 504 (1937); Swanson v. State, 132 Neb. 82,
271 NW 264 (1937); Stonns v. Heck, 238 Ala. 196, 190 So. 78 (1939); Graham v.
Jones, 198 La. 507, 3 So. 2d 761 (1941); In re Initiative Petition No. 224, 197 Okl.
432, 172 P. 2d 324 (1946); City of Jackson v. Nims, 316 Mich. 694, 26 NW 2d 569
(1947); Keenan v. Price, 68 Idaho 423, 195 P. 2d 662 (1948).
51.Commonwealth Act No. 492 (1939).
52.Ibid, Section 3.
53.Commonwealth Act No. 517 (1940).
54.Article VI of the 1935 Constitution.
55.Article VII of the 1935 Constitution.
56.It is to be noted that under Commonwealth Act No. 607 (1940), subsequently
amended by Commonwealth Act No. 657 (1940), there was a statutory creation of
an independent Commission on Elections.
57.Section 3, Commonwealth Act No. 517.
58.Republic Act No. 73 (1946).
59.Section 3 of Republic Act 73 reads as follows: "The provisions of Commonwealth Act
Numbered Three Hundred and fty-seven, otherwise known as the Election Code,
and Commonwealth Act Numbered Six Hundred and fty-seven, entitled 'An Act to
Reorganize the Commission on Elections,' is so far as they are not inconsistent
herewith, are hereby made applicable to the election provided for in this Act."
60.Republic Act 4913 (1967).
61.Section 3 of Republic Act 4913 reads thus: "The provisions of Republic Act Numbered
One hundred eighty, as amended, insofar as they are not inconsistent herewith,
are made applicable to the election provided for in this Act." It is to be remembered
that in the plebiscite held, the two proposals last. Cf. on this point, Gonzales v.
Commission on Elections, L-28196, Nov. 9, 1967, 21 SCRA 774.
62.The 1935 Constitution provides. "The Philippines is a republican state. Sovereignity
resides in the people and all government authority emanates from them." Article II,
Section 1.
63.Laski, Grammar of Politics, 4th ed., 34 (1937).
64.McIver, The Web of Government, 84 (1947).
65.Corwin. The Higher Law Background of American Constitutional Law, in 1 Selected

Essays on Constitutional Law 3 (1938).

66.92 Ky. 589, 18 SW 522.
67.Ibid, 523.
68.101 Va. 829. 44 SE 754.
69.Ibid, 755. A similar approach may be noted in Arie v. State, 23 Okl. 166, 100 P. 23
(1909) and Hammond v. Clark, 136 Ga. 313, 71 SE 479 (1911).
70.Araneta v. Dinglasan, 84 Phil. 368 (1949).
71.Cardozo, The Nature of the Judicial Process, 141 (1921).
1.Section 1, which is the lone section of Art. XV; italics supplied.
2.Article XVII, section 16, proposed Constitution of Nov. 30, 1972; italics supplied.
3.All quotations from respondents' memo of arguments dated March 2, 1973, pp. 2-5;
italics supplied.
4.Respondents' memo dated March 2, 1973, p. 8; italics supplied.
5.Gonzales vs. Comelec, 21 SCRA 774 (No. 9, 1967).
6.Tolentino vs. Comelec, 41 SCRA 702 (Oct. 16, 1971).
7.Resolution on motion for reconsideration in Tolentino vs. Comelec, L-34150; dated
Nov. 4, 1971, at page 3, per Barredo, J. with seven Justices concurring; italics
supplied.
8.Idem, at page 4, italics supplied.
9.Joint opinion of JJ. Makalintal and Castro, p. 153.
10.Article X, sec. 1 of the Constitution entrusts "exclusive charge" of the conduct of
elections to the Comelec. See also the Election Code of 1971.
11.Araneta vs. Dinglasan (L-2044); Araneta vs. Angeles (L-2756); Rodriguez vs.
Treasurer (L-3054); Guerrero vs. Commissioner of Customs; and Barredo vs.
Comelec (L-3056), jointly decided and reported in 84 Phil. 368.
12.Idem, at pp. 384-385; italics supplied.
13.Idem, at p. 437.
14.Idem, at pp. 435-437.
15.Idem, at p. 383. Justice Tuason further duly noted that "These observations, though
beyond the issue as formulated in this decision, may, we trust, also serve to
answer the vehement plea that for the good of the Nation, the President should
retain his extraordinary powers as long as turmoil and other ills directly or

indirectly traceable to the late war harass the Philippines."

16.Petitioner Monteclaro's notes of oral argument dated February 23, 1973, p. 2, and
Annex A thereof.
17.State vs. Powell, 77 Miss. 543, 27 South 927.
18.Cooley's Constitutional Limitations, 8th Ed., Vol. I, p. 81.
19.Article XV, sec. 1, Constitution.
20.Article V, sec. 1, Constitution.
21.Article X, sec. 2, Constitution.
22.Respondents' memo dated March 2, 1973, p. 5.
23.Respondents' Comment dated Feb. 3, 1973, p. 67.
24.Idem, at p. 46; note in parentheses supplied.
25.1 Cranch 137 (1803).
26.63 Phil. 134 (1936).
27.4 Wheaton 316 (1819).
28.Dean Pollak's "The Constitution and the Supreme Court", Vol. I, p. 221.
29.Justice Felix Frankfurter, Of Law and Men (1956), p. 5.
30.Tolentino vs. Comelec, L-34150; decision of October 16, 1971, per Barredo, J. at p. 8.
31.a Con-Con Res. No. 1 proposing the urgent lowering of the voting age to enfranchise
the 18-year olds retained the "permissive" language of section 1, Art. V. Thus, the
proposed amendment read: "Section 1. Surage may be exercised by (male)
citizens of the Philippines not otherwise disqualied by law, who are (twenty one)
EIGHTEEN years of age or over and are able to read and write . . ."

31.Resolution of Nov. 4, 1971, per Barredo, J. at p. 15.

32.Decision of Oct. 16, 1971, at p. 21.
33.21 SCRA 774 (Nov. 9, 1967).
34.Decision of Oct. 16, 1971, at p. 24.
35.Reyes, J.B.L. (now retired), Zaldivar, Castro and Makasiar, JJ.
36.Idem at pp. 1-2.
37.Idem at p. 3.

38.Resolution of Nov. 4, 1971 in Tolentino, per Barredo, J., pp. 3-4.

39.Decision of Oct. 16, 1971 in Tolentino, per Barredo, J. at p. 19.
40.All quotations are from the Chief Justice's concurring opinion in Tolentino, pp. 4-7.
41.Separate op. of J. Teehankee concurring in Res. of No. 4, 1971 in Tolentino, pp. 8, 9,
10.
42.This Court thus declared in Tolentino the Con-Con voting age reduction resolution as
null and void and prohibited its submittal at the 1971 elections for lack of proper
submission since it did not "provide the voter . . . ample basis for an intelligent
appraisal of the amendment." Dec. of October 16, 1971, per Barredo, J.
43.In re Opinion of Justices, 115 N.E. Rep. 922-923.
44.Duncan vs. McCall, 139 U.S. 449, 35 L. Ed. 219.
45."Barrios are units of municipalities or municipal districts in which they are situated . . ."
Rep. Act 3590, sec. 2.
46.Rep. Act 3590, sec. 6, par. 1.
47.Idem, par. 2.
48.Idem, par. 3 and 4, italics supplied.
49.One barrio lieutenant and six barrio councilmen; "Voting shall be by secret ballot . . ."
Idem, sec. 8.
50.Idem, sec. 10, italics supplied. The same section further disqualies persons
convicted by nal judgment to suer one year or more of imprisonment "within
two years after service" or who have violated their allegiance to the Republic and
insane or feeble-minded persons.
51.Supra p. 2.
52.Rizal, Cavite, Bataan, Camarines Sur and Negros Occidental, petitioners' manifestation
and supplemental rejoinder dated March 21, 1973 in L-36165.
53.Respondents' rejoinder dated March 20, 1973 and sur-rejoinder dated March 29,
1973.
54.Under Proclamation No. 1103 dated Jan. 17, 1973, it is recited that "fourteen million
nine hundred seventy six thousand ve hundred sixty one (14,976,561) members
of all the Barangays voted for the adoption of the proposed Constitution, as
against seven hundred forty- three thousand eight hundred sixty nine (743,869)
who voted for its rejection; but a majority of those who approved the new
Constitution conditioned their votes on the demand that the interim National
Assembly provided in its Transitory Provisions should not be convened."
55.Respondents' memo dated March 2, 1973, supra, p. 2.

56.As restated by Barredo, J. in his separate op. in the plebiscite cases, who, however,
did not look on the same with favor, since the "constitutional point (that the
Comelec has exclusive charge of the conduct of elections and plebiscites) seems
to have been overlooked in the Assemblies."
57.Convention Minutes of Nov. 22, 1972 submitted as Annex A of petitioner-delegate
Sedfrey A. Ordoez et al. in the plebiscite case L-35942, par. 12 of petition and
admitted in par. 4 of answer of therein respondents dated Dec. 15, 1972.
*First decision promulgated by First Division of the Supreme Court.
1."When a house is completely demolished and another is erected on the same location,
do you have a changed, repaired and altered house, or do you have a new house?
Some of the material contained in the old house may be used again, some of the
rooms may be constructed the same, but this does not alter the fact that you
have altogether another or a new house. We conclude that the instrument as
contained in Ga. L. 1945, pp. 8 to 89, inclusive, is not an amendment to the
constitution of 1877; but on the contrary it is a completely revised or new
constitution." (Wheeler v. Board of Trustees, 37 S.E. 2d 322, 327).
"Every proposal which aects a change in a Constitution or adds or takes away from it is
an "amendment", while a "revision" implies a re-examination and statement of the
Constitution, or some part of it, in a corrected or improved form:" (Const. Secs.
196, 197, Staples v. Gilmer, 33 S.E. 2d 49, 53 183 Va. 613).
"Amendment" and "revision" of constitution are separate procedures each having a
substantial eld of application, not mere alternative procedures in the same eld."
(McFadden v. Jordan, 196 P. 2d 787, 797 32 Cal. 2d 330).
2.Cf. Sections 1 and 2 of Article XIV, Constitution of Minnesota in Appendix.
3.Baker v. Carr, 369 U.S. 186; 7 L. ed. 663.
4.Cf. State Constitutions of Alaska, California, Delaware, Florida, Michigan, Minnesota,
Nevada, New Hampshire, Oklahoma, Oregon, Utah and Wyoming in Appendix to
this opinion.
*Leon O. Ty, Seven Months of Martial Law, Daily Express.
*Panorama, May 6, 1973.
5."A written constitution is susceptible of change in two ways: by revolution, which
implies action not pursuant to any provision of the constitution itself; and by
revision, which implies action pursuant to some procedural provision in the
constitution. This distinction is concerned with the quare and not with the quantum
of change. It may be signicant, however, that the alleged alteration does or does
not purport to aect the existence of the court itself. In the nature of things, a
revolutionary charge does not admit of judicial power as such to determine the
fact of its occurrence. If the revolutionary constitution sets up a court dierently
constituted from the pre-revolutionary court, neither tribunal is confronted with a
substantial problem, for neither can deny the act by which it was created without
denying the fact of its creation. Thus the Supreme Court in Luther v. Borden

(supra) uses language substantially parallel with what has been indicated above as
the logical explanation of the Duke of York's case. For the court to give serious
judicial consideration to such a question would present 'the singular spectacle of a
court sitting a a court to declare that we are not a court.' (Brittle v. People, 2 Neb.
198, 214 [1873].) And even if the alleged new constitution purports to leave intact
the former court and to permit its work to go on without hiatus, the decision
which the judges must make is still an individual choice to be made by them as a
matter of practical politics. Two commissions are being held out to them, and if
they will act as a court they must assert under which commission they are acting.
To put the matter in another way, it must be true that in the rst case above of
two constitutions purporting to establish two dierent courts, the men who
were judges under the old regime and the men who are called to be judges under
the new have each to decide as individuals what they are to do; and it may be that
they choose at grave peril with the factional outcome still uncertain. And, although
it is not equally obvious, the situation is logically identical where the same men are
nominated to constitute the court under both the old and the new constitution, at
a time when the alleged change is occurring if it is peaceably and against a
placid popular background. Men under such circumstances may write most
praiseworthily upon principles of statesmanship, upon sovereignty and its nature
and modes of action, and upon the bases of government, to justify their choice
between the two commissions. They can assert their choice in the course of
purported judicial action. But they cannot decide as a court, for the decision, once
made, by a retroactive hypothesis excludes any assumption of controversiality in
the premises."
"Where the alleged change occurs not through revolutionary measures but through
what has been called revision, these logical diculties disappear in one aspect, but
become far more embarrassing in another. Where the alteration purports to be
made along the lines of a procedural method laid down in the old constitution,
there is a standard which the court can apply and, by so doing, it can perceive
judicially whether or not the change has followed the prescribed lines. If it has,
there is no diculty in pronouncing as a matter of law its accomplishment. Only
one exception is possible, namely, the case where the alteration purports at once
to abolish the court or to depose its personnel. Then, although there would be a
question of law to be decided, it may be wondered who there is to decide it.
Suppose, however, the mode of change has failed in some way to conform to a
directory provision of the amending clause of the constitution; is the court to
declare the attempt at alteration unsuccessful? It would seem as a matter of law
that it must do so; and yet what is the situation if the proponents of the change
say, 'It is true that this measure failed under the amending clause, but as a
revolutionary measure it was a success and we insist upon its recognition.' Clearly
the members of the court are now more badly than ever entangled in the logical
diculties which attend a purported judicial pronouncement upon the achievement
or non-achievement of revolutionary change. For the temptation will be great to
treat the matter as a legal question. The times are peaceful. The changes probably
do no aect the tenure of many oces of any branch of the government. The
popular inertia is likely to allow the court successfully to assume the question to be
one of law. The path of fallacy is not too strikingly fallacious to the uncritical
observer. It may lead to just results. The judges' personal inclinations will be to
show deference to the expression of popular sentiment which has been given.

And yet, if they declare the change in force, they are truly making a personal
declaration that they believe the change to be the directly expressed will of the
sovereign, which will they assert to be law, but the fact of existence of which will
and this is the real decision is not ascertainable in the given case by any legal
means. It is submitted that this is true, and that the conclusions oered in the
discussion of revolutionary change are true, also, whether the quantum of change
involved be vast or almost negligible."

"The net result of the preceding discussion is this: that in almost the whole eld of
problems which the Duke of York's case and the American constitutional
amendment cases present, the court as a court is precluded from passing upon
the fact of change by a logical diculty which is not to be surmounted. It follows
that there is no room for considering whether the court ought graciously and
deferentially to look to the executive or legislative for a decision that a change has
or has not taken place. In such a context, such a question becomes wholly moot
except for this consideration, that, when the judges as individuals or as a body of
individuals come to decide which king or which constitution they will support and
assert to represent, it may often be good judgment for them to follow the lead of
the men who as a practical matter are likely to be looked to by the people as more
representative of themselves and conversely are likely to be more directly in touch
with popular sentiment. If, however, the judges hold too strong views of their own
to be able to take this course, they may follow their own leads at their own
hazards. No question of law is involved." (Political Questions, 38 Harvard Law
Review [1924-25], pp. 305-309.)
6.Ibid. pp. 301, 305.
7.Ibid. pp. 301, 305.
@The inclusion in the Appendix of provisions for Amendment and Revision in State
Constitutions, adopted after 1935, is only to stress the fact that the distinction
between Amendment and Revision of Constitution, which existed at the time of the
adoption of the 1935 Constitution, has continued up to the present.