Javellana vs.
The Executive Secretary On December 7, 1972, Charito Planas filed a case against the Commission onElections,
The Facts:
Sequence of events that lead to the filing of the Plebiscite then Ratification Cases.
The Plebiscite Case
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 thePhilippines.
Said Resolution No. 2, as amended, was implemented by Republic Act No.6132,
approved on August 24, 1970, pursuant to the provisions of which theelection of delegates
to the said Convention was held on November 10, 1970,and the 1971 Constitutional
Convention began to perform its functions onJune 1, 1971.
While the Convention was in session on September 21, 1972, the Presidentissued
Proclamation No. 1081 placing the entire Philippines under MartialLaw.
On November 29, 1972, the Convention approved its Proposed Constitution ofthe
Republic of the Philippines. The next day, November 30, 1972, thePresident of the
Philippines issued Presidential Decree No. 73, "submitting tothe Filipino people for
ratification or rejection the Constitution of the Republicof the Philippines proposed by the
1971 Constitutional Convention, andappropriating funds therefor," as well as setting the
plebiscite for saidratification or rejection of the Proposed Constitution on January 15,
1973.
the Treasurer of the Philippines and the Auditor General, to enjoinsaid "respondents or
their agents from implementing Presidential Decree No.73, in any manner, until further
orders of the Court," upon the grounds, interalia, that said Presidential Decree "has no
force and effect as law because thecalling ... of such plebiscite, the setting of guidelines
for the conduct of thesame, the prescription of the ballots to be used and the question to
beanswered by the voters, and the appropriation of public funds for thepurpose, are, by
the Constitution, lodged exclusively in Congress ...," and"there is no proper submission to
the people of said Proposed Constitution setfor January 15, 1973, there being no freedom
of speech, press and assembly,and there being no sufficient time to inform the people of
the contentsthereof."
On December 17, 1972, the President had issued an order temporarilysuspending the
effects of Proclamation No. 1081, for the purpose of free andopen debate on the Proposed
Constitution.
On December 23, the President announced the postponement of theplebiscite for the
ratification or rejection of the Proposed Constitution. Noformal action to this effect was
taken until January 7, 1973, when GeneralOrder No. 20 was issued, directing "that the
plebiscite scheduled to be heldon January 15, 1978, be postponed until further notice."
Said General OrderNo. 20, moreover, "suspended in the meantime" the "order of
December 17,1972, temporarily suspending the effects of Proclamation No. 1081
forpurposes of free and open debate on the proposed Constitution."
Because of these events relative to the postponement of the aforementionedplebiscite, the
Court deemed it fit to refrain, for the time being, from decidingthe aforementioned cases,
for neither the date nor the conditions underwhich said plebiscite would be held were
known or announced officially.Then, again, Congress was, pursuant to the 1935
Constitution, scheduled tomeet in regular session on January 22, 1973, and since the
main objection toPresidential Decree No. 73 was that the President does not have
thelegislative authority to call a plebiscite and appropriate funds therefor, whichCongress
unquestionably could do, particularly in view of the formalpostponement of the plebiscite
by the President reportedly after consultationwith, among others, the leaders of Congress
and the Commission on Electionsthe 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."L-35948 filed an
"urgent motion," praying that said case be decided "as soonas possible, preferably not
later than January 15, 1973."
The next day, January 13, 1973, which was a Saturday, the Court issued aresolution
requiring the respondents in said three (3) cases to comment onsaid "urgent motion" and
"manifestation," "not later than 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 riled
a "supplemental motion forissuance of restraining order and inclusion of additional
respondents,"praying:
"... that a restraining order be issued enjoining and restraining respondentCommission on
Elections, as well as the Department of Local Governmentsand its head, Secretary Jose
Roo; the Department of Agrarian Reforms andits head, Secretary Conrado Estrella; the
National Ratification CoordinatingCommittee and its Chairman, Guillermo de Vega; their
deputies, subordinatesand substitutes, and all other officials and persons who may be
assigned suchtask, from collecting, certifying, and announcing and reporting to
thePresident or other officials concerned, the so-called Citizens' Assembliesreferendum
results allegedly obtained when they were supposed to have metduring the period
comprised between January 10 and January 15, 1973, onthe two questions quoted in
paragraph 1 of this Supplemental UrgentMotion."
On the same date January 15, 1973 the Court passed a resolution requiringthe
respondents in said case G.R. No. L-35948 to file "file an answer to thesaid motion not
later than 4 P.M., Tuesday, January 16, 1973," and setting themotion for hearing "on
January 17, 1973, at 9:30 a.m." While the case wasbeing heard, on the date last
mentioned, at noontime, the Secretary ofJustice 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
thePresident. Thereupon, the writer returned to the Session Hall and announcedto the
Court, the parties in G.R. No. L-35948 inasmuch as the hearing inconnection therewith
was still going on and the public there present that thePresident 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 ratification by the Filipino people;

"WHEREAS, Citizens Assemblies were created in barrios, in municipalities andin
districts/wards in chartered cities pursuant to Presidential Decree No. 86,dated December
31, 1972, composed of all persons who are residents of thebarrio, district or ward for at
least six months, fifteen years of age or over,citizens of the Philippines and who are
registered in the list of CitizenAssembly members kept by the barrio, district or ward
secretary;
"WHEREAS, the said Citizens Assemblies were established precisely tobroaden the base
of citizen participation in the democratic process and toafford ample opportunity for the
citizenry to express their views on importantnational issues;
"WHEREAS, responding to the clamor of the people and pursuant toPresidential Decree
No. 86-A, dated January 5, 1973, the following questionswere posed before the Citizens
Assemblies or Barangays: Do you approve ofthe New Constitution? Do you still want a
plebiscite to be called to ratify thenew Constitution?
"WHEREAS, fourteen million nine hundred seventy-six thousand five hundredsixty-one
(14,976,561) members of all the Barangays (Citizens Assemblies)voted for the adoption of
the proposed Constitution, as against sevenhundred forty-three thousand eight hundred
sixty-nine (743,869) who votedfor its rejection; while on the question as to whether or not
the people wouldstill like a plebiscite to be called to ratify the new Constitution,
fourteenmillion two hundred ninety-eight thousand eight hundred fourteen(14,298,814)
answered that there was no need for a plebiscite and that thevote of the Barangays
(Citizens Assemblies) should be considered as a vote ina plebiscite;
"WHEREAS, since the referendum results show that more than ninety-five(95) per cent of
the members of the Barangays (Citizens Assemblies) are infavor of the new Constitution,
the Katipunan ng Mga Barangay has stronglyrecommended that the new Constitution
should already be deemed ratifiedby the Filipino people;
"NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, byvirtue
of the powers in me vested by the Constitution, do hereby certify andproclaim that the
Constitution proposed by the nineteen hundred and seventy-one (1971) Constitutional
Convention has been ratified by anoverwhelming majority of all of the votes cast by the
members of all theBarangays (Citizens Assemblies) throughout the Philippines, and has
therebycome 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.
(Sgd.) FERDINAND E. MARCOS"President of the Philippines"
By the President:
"ALEJANDRO MELCHOR" "Executive Secretary"
_________________________________
The Ratification Case
On January 20, 1973, Josue Javellana filed Case G.R. No. L-36142 against theExecutive
Secretary and the Secretaries of National Defense, Justice andFinance, to restrain said
respondents "and their subordinates or agents fromimplementing any of the provisions of
the propose Constitution not found inthe present Constitution" referring to that of 1935.
The petition therein, filedby Josue Javellana, as a "Filipino citizen, and a qualified and
registered voter"and as "a class suit, for himself, and in behalf of all citizens and
voterssimilarly situated," was amended on or about January 24, 1973. After recitingin
substance the facts set forth in the decision in the plebiscite cases,Javellana alleged that
the President had announced "the immediateimplementation of the New Constitution, thru
his Cabinet, respondentsincluding," and that the latter "are acting without, or in excess of
jurisdictionin implementing the said proposed Constitution" upon the ground: "that
thePresident, as Commander-in-Chief of the Armed Forces of the Philippines, iswithout
authority to create the Citizens Assemblies"; that the same "arewithout power to approve
the proposed Constitution ..."; "that the President iswithout power to proclaim the
ratification by the Filipino people of theproposed Constitution"; and "that the election held
to ratify the proposedConstitution was not a free election, hence null and void."
The Issue:
1. Whether or not the issue of the validity of Proclamation No. 1102 "ANNOUNCING THE
RATIFICATION BY THE FILIPINO PEOPLE OF THE CONSTITUTION PROPOSED BY
THE 1971 CONSTITUTIONAL CONVENTION.
a justiciable, or political and therefore non-justiciable, question?
2. Whether or not the Constitution proposed by the 1971 Constitutional Convention has been
ratified validly (with substantial, if not strict, compliance) conformably to the applicable
constitutional and statutory provisions?
3. Whether or not the aforementioned proposed Constitution, has been acquiesced in (with
or without valid ratification) by the people? (acquiesced - "permission" given by making
objections.)
4. Whether or not the petitioners entitled to relief?
5. Whether or not the aforementioned proposed Constitution in force?
The Resolution:
Summary:
The court was severely divided on the following issues raised in the petition:but when the
crucial question of whether the petitioners are entitled to relief,six members of the court
(Justices Makalintal, Castro, Barredo, Makasiar,Antonio and Esguerra) voted to dismiss
the petition. Concepcion, togetherJustices Zaldivar, Fernando and Teehankee, voted to
grant the relief beingsought, thus upholding the 1973 Constitution.
Details:
1. Is the issue of the validity of Proclamation No. 1102 a justiciable, or
political and therefore non-justiciable, question?
On the first issue involving the political-question doctrine Justices Makalintal,Zaldivar,
Castro, Fernando, Teehankee and myself, or six (6) members of theCourt, hold that the
issue of the validity of Proclamation No. 1102 presents ajusticiable and non-political
question. Justices Makalintal and Castro did notvote squarely on this question, but, only
inferentially, in their discussion ofthe second question. Justice Barredo qualified his vote,
stating that"inasmuch as it is claimed there has been approval by the people, the
Courtmay inquire into the question of whether or not there has actually been suchan
approval, and, in the affirmative, the Court should keep hands-off out ofrespect to the
people's will, but, in negative, the Court may determine fromboth factual and legal angles
whether or not Article XV of the 1935Constitution been complied with." Justices Makasiar,
Antonio, Esguerra, orthree (3) members of the Court hold that the issue is political and
"beyondthe ambit of judicial inquiry."
2. Whether or not the Constitution proposed by the 1971 Constitutional Convention has
been ratified validly (with substantial, if not strict, compliance) conformably to the
applicable constitutional and statutory provisions?
On the second question of validity of the ratification, Justices Makalintal,Zaldivar, Castro,
Fernando, Teehankee and myself, or six (6) members of theCourt also hold that the
Constitution proposed by the 1971 ConstitutionalConvention was not validly ratified in
accordance with Article XV, section 1 of the 1935 Constitution, which provides only one way
for ratification, i.e., "in an election or plebiscite held in accordance with law and participated
in only by qualified and duly registered voters.
Justice Barredo qualified his vote, stating that "(A)s to whether or not the1973 Constitution
has been validly ratified pursuant to Article XV, I stillmaintain that in the light of traditional
concepts regarding the meaning andintent of said Article, the referendum in the Citizens'
Assemblies, specially inthe manner the votes therein were cast, reported and canvassed,
falls shortof the requirements thereof. In view, however, of the fact that I have nomeans of
refusing to recognize as a judge that factually there was voting andthat the majority of the
votes were for considering as approved the 1973Constitution without the necessity of the
usual form of plebiscite followed inpast ratifications, I am constrained to hold that, in the
political sense, if not inthe orthodox legal sense, the people may be deemed to have cast
theirfavorable votes in the belief that in doing so they did the part required ofthem by
Article XV, hence, it may be said that in its political aspect, which iswhat counts most, after
all, said Article has been substantially complied with,and, in effect, 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 effect substantial compliance with the constitutional
requirements for valid ratification.
3. Whether or not the aforementioned proposed Constitution has been acquiesced in (with
or
without valid ratification) by the people?
On the third question of acquiescence by the Filipino people in theaforementioned
proposed Constitution, no majority vote has been reached bythe Court.
Four (4) of its members, namely, Justices Barredo, Makasiar, Antonio and Esguerra hold
that "the people have already accepted the 1973 Constitution."
Two (2) members of the Court, namely, Justice Zaldivar and myself hold thatthere can be
no free expression, and there has even been no expression, bythe people qualified to vote
all over the Philippines, of their acceptance orrepudiation of the proposed Constitution
under Martial Law. Justice Fernandostates that "(I)f it is conceded that the doctrine stated
in some Americandecisions to the effect that independently of the validity of the
ratification, anew Constitution once accepted acquiesced in by the people must
beaccorded recognition by the Court, I am not at this stage prepared to statethat such
doctrine calls for application in view of the shortness of time thathas elapsed and the
difficulty of ascertaining what is the mind of the peoplein the absence of the freedom of
debate that is a concomitant feature ofmartial law." 88
Three (3) members of the Court express their lack of knowledge and/orcompetence to rule
on the question. Justices Makalintal and Castro are joinedby Justice Teehankee in their
statement that "Under a regime of martial law,with the free expression of opinions through
the usual media vehiclerestricted, (they) have no means of knowing, to the point of judicial
certainty,whether the people have accepted the Constitution."
4. Whether or not petitioners entitled to relief?
On the fourth question of relief, six (6) members of the Court, namely,Justices Makalintal,
Castro, Barredo, Makasiar, Antonio and Esguerra voted toDISMISS the petition. Justice
Makalintal and Castro so voted on the strengthof their view that "(T)he effectivity of the
said Constitution, in the finalanalysis, is the basic and ultimate question posed by these
cases to resolvewhich considerations other than judicial, and therefore beyond
thecompetence 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 togive due course to the
petitions.
5. Is the aforementioned proposed Constitution in force?
On the fifth question of whether the new Constitution of 1973 is in force:
Four (4) members of the Court, namely, Justices Barredo, Makasiar, Antonioand Esguerra
hold that it is in force by virtue of the people's acceptancethereof;
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 thatthe
Constitution proposed by the 1971 Constitutional Convention is not inforce; with the result
that there are not enough votes to declare that the newConstitution 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.
No. L-36142. March 31, 1973.
Josue Javellana, petitioner, vs. The Executive Secre-tary, The Secretary of National
Defense, The Secretary of Justice and The Secretary of Fi-nance, respondents.
No. L-36164. March 31, 1973.
Vidal Tan, J. Antonio Araneta, Alejandro Roces, Ma-nuel 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 Re-form, The
Secretary of National Defense, The Auditor General, The Budget Commissioner, The
 Chairman of Presidential Commission on Reorga-nization, The Treasurer of the
Philippines, The Commission on Elections and The Commissioner of Civil Service,
respondents.
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 De-fense; General
Romeo Espino, in his capacity as Chief of Staff 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.
No. L-36236. March 31, 1973.
Eddie B. Monteclaro, [personally and in his capacity as President of the National Press
Club of the Philip-pines], petitioner, vs. The Executive Secretary, The Secretary of Public
Information, The Auditor General, The Budget Commissioner & The National Treasurer,
respondents.
No. L-36283. March 31, 1973.
Napoleon V. Dilag, Alfredo Salapantan, Jr., Leonardo Asodisen, Jr., and Raul M.
Gonzalez, petitioners, vs. The Honorable Executive Secretary, The Honor-able Secretary
of National Defense, The Honor-able Budget Commissioner, and The Honorable Auditor
General, respondents.
Constitutional law; Doctrine of Separation of powers; Six Justices agree that the issue of the
validity of Proclamation 1102 (announcing the ratification of the proposed Constitution) is a
justiciable question; four Justices differ.On the first issue involving the political-question
doctrine, Justices Makalintal, Zaldivar, Castro, Fernando, Teehankee and Chief Justice
Concepcion, or six (6) members of the Court, hold that the issue of the validity of
Proclamation 1102 presents a justiciable and non-justiciable question. Justices Makalintal
and Castro did not vote squarely on this question, but, only inferentially, in their discussion
of the second question. Justice Barredo qualified his vote, stating that inasmuch as it is
claimed that there has been approval by the people, the Court may inquire into the question
of whether or not there has actually been such an approval, and, in the affirmative, the Court
should keep its hands-off out of respect to the peoples 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.
Same; Amendments; Six Justices agree that the Constitution proposed by the 1971
Constitutional Convention has not been ratified validly conformably to the applicable
constitutional and statutory provisions; one Justice qualifies his vote while the three others
dissent.On the second question of validity of the ratification, Justices Makalintal, Zaldivar,
Castro, Fernando, Teehankee and Chief Justice Concepcion, or six (6) members of the Court
also hold that the Constitution proposed by the 1971 Constitutional Convention was not
validly ratified in accordance with Article XV, section 1 of the 1935 Constitution, which
provides only one way for ratification, i.e., in an election or plebiscite held in accordance
with law and participated in only by qualified and duly registered voters.
Justice Barredo qualified his vote while Justices Makasiar, Antonio and Esguerra, or three
(3) members of the Court hold that under their view there has been in effect substantial
compliance with the constitutional requirements for valid ratification.
Same; Same; Four Justices hold that the proposed Constitution has been acquiesced in by
the people; two Justices hold that the people have not expressed themselves; one Justice
thinks the doctrine of Constitution by acquiescence inapplicable; while the three other
justices agree that they lack the knowledge or competence to make a determination.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. Two (2) members of the
Court, namely, Justice Zaldivar and Chief Justice Concepcion hold that there can be no free
expression, and there has even been no expression, by the people qualified to vote all over
the Philippines, of their acceptance or repudiation of the proposed Constitution under Martial
Law. Justice Fernando thinks that the doctrine of Constitution by acquiescence cannot be
applied at this time 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.
Remedial law; Certiorari; Six Justices voted to dismiss the petitions while the four others
voted to give them due course.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 the effectivity of the said Constitution, in the final 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. Four (4)
members of the Court, namely, Justices Zaldivar, Fernando, Teehankee and Chief Justice
Concepcion voted to deny respondents motion to dismiss and to give due course to the
petitions.
Constitutional law; Amendments; Four Justices hold that the new Constitution of 1973 is in
force; four Justices did not vote on the question; while the remaining two Justices voted that
the proposed Constitution is not in force.On the fifth question of whether the new
Constitution of 1973 is in force: Justices Barredo, Makasiar, Antonio and Esguerra hold that
it is in force by virtue of the peoples acceptance thereof; 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 Justice Zaldivar and Chief Justice
Concepcion 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.
Concepcion, C.J., dissenting:
Constitutional law; Courts; Only a majority of all the members of the Supreme Court is
required to annul an executive proclamation.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 significant that in the previous drafts of
section 10, Article VIII of the Constitution, executive order and regulation were included
among those that required for their nullification the vote of two thirds of all the members of
the Court. But executive order and regulation were later deleted from the final draft
(Aruego, The Framing of the Philippine Constitution, Vol. 1, pp. 495, 496), and thus a mere
majority of six members of this Court is enough to nullify them. x x x 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 or regulation namely, six
(6) votes would suffice.
Same; Same; The question of the effectivity of the new Constitution should be determined
by applying the provisions of the former Constitution.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 ratified
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 ratification of an amendment to the Constitution should be settled
applying the provisions of the Constitution in force at the time of the alleged ratification of the
old Constitution.
Same; Doctrine of Separation of Powers; The validity of Proclamation 1102 does not partake
of the nature of a political, and, hence, nonjusticiable question.Referring to the issue on
whether the new Constitution proposed by the 1971 Constitutional Convention has been
ratified 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, 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 effect 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.
Same; Same; The issue of whether the exercise of a Constitutional power has met its
conditions is justiciable.When the grant of power is qualified, conditional or subject to
limitations, the issue on whether or not the prescribed qualifications or conditions have been
met, or the limitations respected, is justiciable or non-political, the crux of the problem being
one of legality or validity of the contested act, not its wisdom. Otherwise, said qualifications,
conditions or limitations particularly those prescribed or imposed by the Constitution
would be set at naught. 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.
Same; Amendments; Elections; The right to vote is conferred by the Constitution and the
same may not be increased or diminished. Article V of the Constitution was meant to be
and is a grant or conferment of a right to persons possessing the qualifications and none of
the disqualifications 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 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.
Same; Same; Same; The votes of persons less than 21 years of age renders the proceedings
in the Citizens assemblies void.It is thus clear that the proceedings held in such Citizens
Assemblies were fundamentally irregular, in that persons lacking the qualifications
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 qualified voters, the proceedings in the
Citizens Assemblies must be considered null and void.
Same; Same; Same; Viva voce voting for the ratification of the Constitution is void.Article
XV envisages with the term votes cast choices made on ballots not orally or by Provincial or City Barangays nor the Department of Local Governments had certified to the
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 official 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 ratification 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.
Same; Same; Commission on Elections; The plebiscite on the Constitution, not having been
conducted under the supervision of the Comelec is void.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. The procedure therein mostly followed is such that there is no
reasonable means of checking the accuracy of the returns filed by the officers who conducted
said plebiscites. This is another patent violation of Art. X of the Constitution which can be
hardly sanctioned. And, since the provisions of this article form part of the fundamental
scheme set forth in the 1935 Constitution, as amended, to ensure the free, orderly, and
honest expression of the peoples 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 ratified the revised Constitution proposed by the 1971
Constitutional Convention.
Same; Same; The Presidential proclamation of the ratification of the proposed Constitution,
when assailed, may be inquired into.A declaration to the effect that a given amendment to
the Constitution or revised or new Constitution has been ratified by a majority of the votes
cast therefor, may be duly assailed in court and be the object of judicial inquiry, indirect
proceedings therefor such as the cases at bar and the issue raised therein may and
should be decided in accordance with the evidence presented.
Same; Same; Proclamation 1102 is not an evidence of ratification.Inasmuch as Art. X of
the 1935 Constitution places under exclusive charge of the Commission on Elections, the
enforcement and administration of all laws relative to the conduct of election, independently
of the Executive, and there is not even a certification 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
President the alleged result of the citizens 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 ratification of the proposed Constitution.
Same; Same; The citizens assemblies did not adopt 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.
Same; Same; The acts of the executive department under martial law cannot be construed
as an acquiescence to the proposed Constitution.I am not prepared to concede that the
acts of the officers and offices 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.
Same; Same; A department of the Government cannot recognize its own acts.Then Remedial law; Certiorari; Due course should be granted to the petitions there being more
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 officer or office of the Government complies with
the commands of a superior officer or office, 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 officer or office,
if he or it acted otherwise, would just be guilty of insubordination.
Same; Same; Individual acts of recognition by members of Congress do not constitute
congressional recognition.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 Officers, and no
plausible reason has been adduced to warrant departure therefrom.
Same; Same; The compliance by the people with the orders of the martial law government
does not constitute acquiescence to the proposed Constitution.Neither am I prepared to
declare that the peoples 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 effects issued subsequently thereto amounts, constitutes or
attests to a ratification, adoption or approval of said Proclamation No. 1102. The intimidation
is there, and inaction or obedience of the people, under these conditions, is not necessarily
an act of conformity or acquiescence.
Same; Same; The enrolled bill rule does not apply to the acts of the President in reference
to powers he does not possess.As regards the applicability to these cases of the enrolled
bill rule, it is well to remember that the same refers to a document certified 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
House of Congress. Whereas, Proclamation 1102 is an act of the President declaring the
results of a plebiscite on the proposed Constitution, an act which Article X of the 1935
Constitution denies the executive department of the Government.
than prima facie showing of non-compliance with the Constitution.In all other respects and
with regard to the other respondents in said case, as well as in cases 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 ratified 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 effect; 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 ratification or rejection m 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.
Makalintal and Castro, JJ.:
Constitutional law; Inquiry as to whether or not the act of the Citizens Assemblies as certified
and proclaimed by the President was an act of ratification lies within the power of judicial
review.Such a finding [a finding that the ratification of the draft Constitution by the Citizens
Assemblies, as certified by the President m Proclamation No. 1102, was not in accordance
with the constitutional and statutory procedure laid down for the purpose] 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 otiicial acts. No question of
wisdom or of policy is involved.
Same; Procedure of ratification followed not in accordance with the 1935 Constitution and
the related statutes; Reasons.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, lection 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.
Same; Same; Same.The Citizens Assemblies were not limited to qualified, let alone
registered, voters, but included all citizens from the age of fifteen, and regardless of whether
or not they were illiterates, feeble-minded, or ex-convicts these being the classes of
persons expressly disqualified from voting by Section 102 of the Election Code. In short, the
constitutional and statutory qualifications were not considered in the determination of who
should participate. No official ballots were used in the voting; it was done mostly by
acclamation or pen 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 figures 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.
Same; Matter of whether or not the Constitution has become effective because of popular
acquiescence beyond the domain of judicial review.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 find 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 effect because of popular acquiescence that is political, and
therefore beyond the domain of judicial review.
Barredo, J.:
Constitutional law; Validity of a law presumed until otherwise declared unconstitutional.
With full consciousness of my limitations but compelled by my sense of duty and propriety
to straighten out this grave issue (on whether the Court is acting as an 11-man Court under
the 1935 Constitution or as a 15-man Court under the 1973 Constitution) 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
effect until the Supreme Court rules that it is unconstitutional. Stated differently, 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
counsels 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 first 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. ... 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 affecting practically every aspect of governmental
and private activity as well as the relations between the government and the citizenry are
pouring put from Malacafiang under the authority of said Constitution. ... Moreover, what
makes the premise of presumptive validity preferable and] imperative, is that We are dealing
here with a whole Constitution that radically modifies or alters not only the form of our
government from presidential to parliamentary but also other constitutionally based
institutions vitally affecting all levels of society.
Same; When Article XV of the 1935 Constitution not complied with.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.
Same; Result of referendum is as the President stated.In my opinion in those cases, the
most important point I took into account was that in the face* of the Presidential certification
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 figures 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 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 figure, in my
estimate, could still be significant enough and legally sufficient to serve as basis for a valid
ratification.
Same; Referendum through Citizens Assemblies not mere consultative.It is contended,
however, that the understanding was that the referendum among the Citizens Assemblies
was to be in the nature of a loose consultation and not an outright submission for purposes
of ratification. I can see that at the, outset, when the first 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 official 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.
Same; Results of referendum valid.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 different from voting on one, two or three specific 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 specific objectional 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 Courts appraisal of the result of the
referendum.
Same; Referendum not in strict compliance with 1935 Constitution. At this juncture, I think
it is fit to make it clear that I am not trying to show that the result of the referendum may be
considered as sufficient basis for declaring that the New Constitution has been ratified in
accordance with the amending clause of the 1935 Constitution. I reiterate that in point of law,
I find 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 affected 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.
Same; 1973 Constitution already adopted by the people.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.
Same; Ruling in Tolentino vs. Comelec (U SCRA 702) distinguished from case at bar.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 effect 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 noncompliance as a
justiciable matter. I still believe in the correctness of those views and I would even add that
I sincerely feel that it reflects 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, whicn are entirely different 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 of 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.
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 peoples 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.
3. 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 effort or attempt to convene as they were
supposed to do under the 1935 Constitution on January 22, 1973 for the regular session.
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
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 significant 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
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,
oftweferred to above, in the Plebiscite Cases that is, as an extraconstitutional 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.
Makasiar, J.:
Constitutional law; Issue as to the validity of Proclamation No. 1102 political and not
justiciable; Reasons.Assuming, without conceding, that the procedure for ratification
prescribed in Article XV of the 1935 Constitution was not 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 ratification
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 definition of a political question enunciated
in Taada, et al. vs. Cuenco, et al. (103 Phil. 1051).
Same; Acceptance by the people of the 1973 Constitution cures any infirmity in its
submission; Reason.The legality of the submission is no longer relevant; because the
ratification, adoption and/or acquiescence by the people cures any infirmity in its submission
or any other irregularities therein which are deemed mandatory before submission as they
are considered merely directory after such ratification or adoption or acquiescence by the
people.
Esguerra, J.:
Constitutional law; Issue as to whether or not Constitution of November 30, 1972 ratified in
accordance with the amending process prescribed by the 1935 Constitution and other
related statutes highly political and not justiciable.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 Colgrove 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 fit for judicial determination.
Same; Political question explained.For a political question is one entrusted to the people
for judgment in their sovereign capacity (Tanada vs. Cuenco, G.R. No. L-10520, Feb. 28,
1967; 100 Phil. 1101), or to a co-equal 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.
Zaldivar, J., dissenting and concurring:
Constitutional law; Meaning of political question.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.
Same; The courts have the power to determine whether the acts of the Executive are
authorized by the Constitution and the laws.It is a settled doctrine that every officer 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 official actions.
Same; Courts have power to determine validity of means adopted to change the
Constitution.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 ratification of any change
in the Constitution. Ratification or non-ratification 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 whether or not an amendment to the Constitution, as in the
present cases, has been ratified in accordance with the requirements prescribed in the
Constitution that was amended.
Same; Election contemplated in Article XV of the Constitution is an election conducted
under the election law.The election contemplated in said constitutional provision is an
election held in accordance with the provisions of the election law, where only the qualified
and registered voters of the country would cast their votes, where official 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 different 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 ratified; on April 30, 1937, when the amendment to the
Constitution providing for Womens Suffrage was ratified; on June 18, 1940, when the 1940
Amendments to the Constitution were ratified; on March 11, 1947 when the Parity
Amendment to the Constitution was ratified; 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.
Same; Votes cast in the barangays not the votes contemplated in Section 1 of Article XVof
the 1935 Constitution.It is my view that the President of the Philippines cannot by decree
order the ratification of the proposed 1972 Constitution thru a voting in the barangays and
make said result the basis for proclaiming the ratification of the proposed Constitution. It is
very clear, to me, that Proclamation 1102 was issued in complete disregard or in violation,
of the provisions of Section 1 of Article XV of the 1935 Constitution.
Same; Same; Manner of voting by the barangays subject to judicial notice.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.
consider the votes in the barangays as expressive of the popular will and use them as the
basis in declaring whether a Constitution is ratified or rejected is to resort to a voting by
demonstrations, which would mean the rule of the crowd, which is only one degree higher
than the rule by the mob.
Same; The fact that a majority voted for the amendment of the Constitution, unless the vote
was taken as provided by the Constitution, is not sufficient to make a change in that
instrument.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 ratification of the amendment to the Constitution, the affirmative votes cast in those
assemblies cannot be made the basis for declaring the ratification 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 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 be upheld.
Same; Voting in the barangays was not freely exercised because of the existence of martial
law.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 my order of
December 17, 1972 temporarily suspending the effects of Proclamation No. 1081 for the
purpose of free and open debate on the proposed constitution, be suspended in the
meantime.'
Same; Meaning of people in the Constitution.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.
Same; The term election in Article XV of the Constitution should be taken in its historical
perspective.It can safely be said 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
officials prior to the drafting of the 1935 Constitution, and also the election mentioned in the
Independence Act. It is but logical to expect that the framers of the 1935 Constitution would
provide a mode of ratifying an. amendment to that Constitution itself.
Same; It cannot be said that the people have accepted the 1978 Constitution.What
appears to me, however, is that practically it is only the officials 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.... True it is, that 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 office; and of the 92 members of the House of Representatives, only
22 took their oath of office. This is an indication that only a small portion of the members of
Congress had manifested their acceptance of the new Constitution.
Same; Acceptance of Constitution is manifested by oath of office.It is in the taking of the
oath of office where the affiant 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 L-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 definitely effective 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.
Same; Presidential declaration that government is not a revolutionary government subject to
judicial notice.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.
Same; Congress may still call a plebiscite.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 ratification or rejection.
Fernando, J., dissenting:
Constitutional law; When power of judicial review should be exercised.In the United States
as well 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 cannot
nullify the policy of others, they are incapable of fashioning their own solutions for social
problems. Nonetheless, as was stressed by Professors Black, and Murphy, 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 affirming constitutional supremacy, the political departments could seek the aid of the
judiciary.
Same; Same; Whether there has been deference to the provisions of the Constitution is a
judicial question.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, Tolentino and Planas cases speak uneauivocally to that effect.
Nor is it a valid objection to this conclusion that what was involved in those cases was the
legality of the submission and not ratification, for from the very language of the controlling
article, the two vital steps are proposal and ratification, which as pointed out in Dillon v. Gloss
(256 US 368) cannot be treated as unrelated acts, but as succeeding steps in a single
endeavor. Once an aspect thereof is viewed as judicial, there would be no justitification for
considering the rest as devoid of that character.
Same; The Philippines has a tradition of judicial activism.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 Javellana vs. The Executive
Secretary
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.
Same; Nature of judicial function.It suffices 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 mind 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 cliffs of perfection. This is not to say that it is satisfied 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 fidelity to the constitutional requirements. 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.
Same; Requirements of the Constitution for its amendment was not complied with.There
is, of course, the view not offensive 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 liti-gation, if my reading of the events and the
process that led to such pro-clamation, so clearly set forth in the opinion of the Chief Justice,
is no inacc urate, 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 conclurion would, for me, require an interpretation that borders on the s
rained. 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 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 to assert that the requirements of the 1935 Constitution have been
met.
Same; Same.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 first Commonwealth Act, 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. Then came the
statute, calling for the plebiscite on the three 1940 amendments providing for a bicameral
Congress or a Senate and a House of Representatives to take the place of a unicameral
National Assembly, reducing the term of the President to four years but allowing this re-
election with the limitation that he cannot serve for more than eight consecutive years, and
creating an independent Commission on Elections. Again it was expressly provided that the
election shall be conducted in conformity with the provisions of the Election Code insofar as
the same may be applicable. The approval of the present parity amendment was by virtue
of a Republic Act which specifically made applicable the then Election Code. There is a
similar provision in the legislation which in contemplation of the 1971 Constitutional
Convention provided for increase of the membership of the House of Representatives, to a
maximum of one hundred eighty, and the eligibility of senators and representatives to
become members of such constitutional convention without forfeiting their seats. Thus, the
consistent course of interpretation followed by the legislative branch is most persuasive, if
not controlling. The restraint 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 ratification. On
two vital points, who can vote and how they register their will, Article XV had been given a
definitive construction.
Same; Petitions in the case at bar should not be dismissed.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 different 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 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 Javellana vs. The Executive Secretary
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 final analysis the state exists for the individuals who in their collectivity
compose it. Whatever be their views, it is entitled to respect. It is difficult for me, however, at
this stage to feel secure in the conviction that they did utilize the occasion afforded 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.
Same; A decision in favor of the petitioners need not be immediately executory.It might be
asked though, suppose the petitioners should prevail? What then? Even so, the decision of
this Court need not be executory right away. Such a disposition of a case before this Court
is not novel. That was how it was done in the Emergency Powers Act controversy. 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.
Same; How the case at bar should be viewed.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
affairs, be no more than gossamer distinctions and sterile refinements unrelated to events.
That may be so, but I find 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 Cirried 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 spasr iodic 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 field of discretion that remains.
Teehankee, J., dissenting:
Constitutional law; Issue as to the validity of Presidential Proclamation No. 1102 presents a
justiciable question and constitutes a proper subject of judicial review; Reasons.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, (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 and restrictions embodied in our Constitution are real as they should be in any
living Constitution.
Same; Same; Same.Justice Laurel pointed out that in contrast to the United States
Constitution, the Philippine Constitution as a definition of the powers of government placed
upon the judiciary the great burden of determining the nature, scope and extent of such
powers and stressed that when the judiciary mediates to allocate constitutional boundaries,
it does not assert any superiority over the other departments ... but only asserts the solemn
and sacred obligation entrusted to it by the Constitution to determine conflicting claims of
authority under the Constitution and to establish for the parties in an actual controversy the
rights which the instrument secures and guarantees to them.
Same; No valid ratification of Constitution where ratification not in accordance with
mandatory requirements of Article XV of the 1935 Constitution.Since it appears on the
face of Proclamation 1102 that the mandatory requirements of the constitutional articles have
not been complied with and that no election or plebiscite for ratification as therein provided
as well as in section 16 of Article XVII of the proposed Constitution itself has been called or
held, there cannot be said to have been a valid ratification.
Same; Same; Necessity of strict adherence to constitutional requirements; Reasons for.
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.
ORIGINAL PETITIONS in the Supreme Court. Manda-mus and prohibition.
The facts are stated in the resolution of the Court.
Ramon A. Gonzales for petitioner Josue Javellana.
Lorenzo M. Taada & Associates for petitioners Vidal Tan, et al.
Taada, Salonga, Ordonez, Rodrigo, Sanidad, Roxas. Gonzales and Arroyo for petitioners
Gerardo Roxas, et al.
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 re-spondents.
RESOLUTION
CONCEPCION, C.J.:
The above-entitled five (5) cases are a sequel of cases G.R. Nos. L-35925, L-35929, L-
35940, L-35941, L-35942, L-35948, L-35953, L-35961, L-35965 and L-35979, decided on
January 22, 1973, to which We will hereafter refer collectively as the plebiscite cases.
Background of the Plebiscite Cases.
The factual setting thereof is set forth in the decision therein 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 ratification 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 filed, 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 effect as law because the calling x x x 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 x x x, 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 no
sufficient time to inform the people of the contents thereof.
Substantially identical actions were filed, 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, the 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 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 file
their answers not later than 12:00 (oclock) 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 filed on different dates, between
December 21, 1972, and January 4, 1973.
Meanwhile, or on December 17, 1972, the President had issued an order temporarily
suspending the effects 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 ratification or rejection of the Proposed Constitution. No formal action
to this effect was taken until January 7, 1973, when General Order No. 20 was issued,
directing that the plebiscite scheduled to be held on January 15, 1978, be postponed until
further notice. Said General Order No. 20, moreover, suspended in the meantime the order
of December 17, 1972, temporarily suspending the effects 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 officially. 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. L-35948 filed 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 the proposed new Constitution and when (the tentative
new dates given following the postponement of the plebiscite from the original date of
January 15 are February 19 and March 5);
[4] The opening of the regular session slated 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 13. That attached to page 1 of Annex A is another page, which we marked as Annex A-
Today, January 5, 1973]. 1, and which reads:

9. That the voting by the so-called Citizens Assemblies was announced to take place during COMMENTS ON
the period from January 10 to January 15, 1973;
QUESTION No. 1
10. That on January 10, 1973, it was reported that on more question would be added to the
four (4) question previously announced, and that the forms of the question would be as In order to broaden the base of citizens participation in government.
follows: QUESTION No. 2
[1] Do you like the New Society? But we do not want the Ad Interim Assembly to be convoked. Or if it is to be convened at all,
[2] Do you like the reforms under martial law? it should not be done so until after at least seven (7) years from the approval of the New
Constitution by the Citizens Assemblies.
[3] Do you like Congress again to hold sessions?
QUESTION No. 3
[4] Do you like the plebiscite to be held later?
The vote of the Citizens Assemblies should already be considered the plebiscite on the New
[5] Do you like the way President Marcos running the affairs of the government? [Bulletin Constitution.
Today, January 10, 1973; emphasis an additional question.]
If the Citizens Assemblies approve of the New Constitution, then the new Constitution should
11. That on January 11, 1973, it was reported that six (6) more questions would be submitted be deemed ratified.
to the so-called Citizens Assemblies:
60
[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? QUESTION No. 4

[3] Do you want a plebiscite to be called to ratify the new Constitution? We are sick and tired of too frequent elections. We are fed up with politics, of so many
debates and so much expenses.
[4] Do you want the elections to be held in November, 1973 in accordance with the
provisions of the 1935 Constitution? QUESTION No. 5

[5] If the elections would not be held, when do you want the next elections to be called? 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.
[6] Do you want martial law to continue? [Bulletin Today, January 11, 1973; emphasis
supplied] QUESTION No. 6

12. That according to reports, the returns with respect to the six (6) additional questions We want President Marcos to continue with Martial Law. We want him to exercise his powers
quoted above will be on a form similar or identical to Annex A hereof; with more authority. We want him to be strong and firm 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 be called 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 affirmative 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 Sec. 3 of Presidential
Decree No. 73, the opposition of respondents to petitioners prayer at the 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 filed by the petitioners
in L-35949, Gerardo Roxas, et al. v. Commission on Elections, et al., and L-35942, Sedfrey
A. 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 than 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 riled a
supplemental motion for issuance of restraining order and inclusion of additional
respondents, praying
x x x 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 Ratification Coordinating Committee and its Chairman, Guillermo de Vega; their
deputies, subordinates and substitutes, and all other officials and persons who may be
assigned such task, from collecting, certifying, and announcing and reporting to the
President or other officials 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 Ratification 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 ratification 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 ratification, are elections at which only
qualified 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
qualifications or lack thereof, as prescribed in the Election Code;
[b] Elections or plebiscites for the ratification 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 ratification 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 sufficient 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
officials 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 officials
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 ratification 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 officials and government agencies
mentioned in paragraph 3 of this Supplemental Urgent Motion, can lawfully be 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 officials 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 officials 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 an 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 conflict 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 ratified 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 ratified 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 file file 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 ratification 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, fifteen 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 afford 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 five 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-five (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 ratified 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 17th 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 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 affirmative 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; 3) that the Presidents 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 x x x 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 effect, Justices Barredo, Makasiar and Antonio hold the same view.
5. On the question whether the proclamation of Martial Law affected 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 repugnancy 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 ratification
of the Proposed Constitution x x x 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, x x x the new Constitution is legally recognizable and should
be recognized as legitimately in force.
c. Justice Zaldivar maintains unqualifiedly that the Proposed Constitution has not been
ratified in accordance with Article XV of the 1935 Constitution, and that, accordingly, it has
no force and effect whatsoever.
d. Justice Antonio feels that the Court is not competent to act on the issue whether the
Proposed Constitution has been ratified 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 affirmative, 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 file 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 effect, 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. L-35948, 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 filed 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 propose Constitution not found in the present Constitution referring to
that of 1935. The petition therein, filed by Josue Javellana, as a Filipino citizen, and a
qualified 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 ratification
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 filed, 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, the 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,
the 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 first as duly elected
Senator and Minority Floor Leader of the Senate, and others as duly elected members
thereof, filed Case G.R. No. L-36165, against the Executive Secretary, the Secretary
National Defense, the Chief of Staff 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 office of three of the aforementioned petitioners8 would expire on
December 31, 1975, and that of the others9 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 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 prevented from using the Senate Session
Hall, the same having been closed by the authorities in physical possession and control the
Legislative Building; that (a)t about 5:00 to 6:00 P.M. 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 we 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 ready and
willing to perform their duties as duly elected members of the Senate of the Philippines, but
respondent Secretary of National Defense, Executive Secretary and Chief of Staff, through
their agents and representatives, are preventing petitioners from performing their duties as
duly elected Senators of the Philippines; that the Senate premise in the Congress of the
Philippines Building x x x are occupied by and are under the physical control of the elements
military organizations under the direction of said
_______________
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. respondents;
that, as per official reports, the Department of General Services x x x is now the civilian
agency 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, 1973, 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 officers 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 x x x can not have superseded and revoked the 1935
Constitution, for the reasons specified in the petition as amended; that, by acting as they
did, the respondents and their agents, representatives and subordinates x x x have
excluded the petitioners from an office 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 x x x continue such inaction up to this time and x x x a writ of mandamus is warranted
in order to compel them to comply with the duties and functions specifically 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 respondents
Executive Secretary, the Secretary of National Defense, the Chief of Staff of the Armed
Forces of the Philippines, and the x x x Secretary of General Service, 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 hearing, judgment be rendered declaring null and
Proclamation No. 1102 x x x and any order, decree, proclamation having the same import
and objective, issuing writs of prohibition and mandamus, as prayed for against above-
mentioned respondents, and making the writ 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 Philippines, as provided by law and the Rules of the Senate.
Required to comment on the above-mentioned petitions and/or amended petitions,
respondents filed, with the leave Court first had and obtained, 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
impairment of the freedom of the 1971 Constitution 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 submitting to them the matter of ratification of the new Constitution, the
alleged improper or inadequate submission of the proposed constitution, the procedure for
ratification adopted x x x through the Citizens Assemblies; a 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 nonjusticiable; 3) there substantial compliance with Article XV of
the 1935 Constitution; 4) (t)he Constitution was properly submitted the people in a free,
orderly and honest election; 5)
75
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75
Javellana vs. The Executive Secretary
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, filed their separate comment
therein, alleging that (t)he subject matter of said case is a highly political question which,
under the circumstances, this x x x 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 effect 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-36164, and 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-3628310 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, 1973, shortly after 9:30 a.m., was continued not only that
afternoon, 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 of
oral 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 filed by their respective opponents. Counsel for the
petitioners in G.R. Nos. L-36164 and L-36165 filed 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 file his notes, which was granted, with
_______________
10 Napoleon V. Dilag, et al. v. Executive Secretary, et al.
76
76
SUPREME COURT REPORTS ANNOTATED
Javellana vs. The Executive Secretary
the understanding that said notes shall include his reply to the notes already filed 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 file, 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 filed a Manifestation a Supplemental Rejoinder,
whereas the Office of the Solicitor General submitted in all these cases a Rejoinder
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 first express his person opinion on the issues before the Court.
After the exposition 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.
Writers Personal Opinion
I.
Alleged academic futility of further proceedings in G.R. 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 had 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 x x x; that Mr. Justice Antonio
did not feel that this Court competent to act in said cases in the absence of any judicially
discoverable and manageable standards and because the access to relevant information
is insufficient to assure the correct determination of the issue, apart from the
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VOL. 50, MARCH 31, 1973
77
Javellana vs. The Executive Secretary
circumstance that the new constitution has been promulgated 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 x x x 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
effect, 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, eight (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.
78
78
SUPREME COURT REPORTS ANNOTATED
Javellana vs. The Executive Secretary

Pursuant to this section, the concurrence of two-thirds of all the Members of the Supreme
Court is required only to declare 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:
x x x 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 significant that in the previous drafts of section 10, Article VIII of the Constitution,
executive order and regulation were included among those that required for their proclamation, like said Proclamation No. 1102, inasmuch as the authority to issue the same
nullification the vote of two-thirds of all the members of the Court. But executive order and
regulation were later deleted from the final 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
_______________
11 Araneta v. Dinglasan, 84 Phil. 431, 437-438. See, also, Gonzales v. Commission on
Elections, L-28196 & L-28224, Nov. 9, 1967. Emphasis ours.
12 Art. VI, sec. 20(1), Constitution.
13 Art. VII, sec. 10(7), Constitution.
79
VOL. 50, MARCH 31, 1973
79
Javellana vs. The Executive Secretary
executive orders issued by the President, the dictum applies with equal force to executive
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 effective in executive
orders.
Executive orders fixing the dates when specific laws, resolutions, or orders are to have or
cease to (have) effect 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 order 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 or
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 ratified
in accordance with the requirements of the 1935 Constitution, upon the authority of which
said Constitutional Convention was called and approved the proposed Constitution.
_______________ 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
14 Italics ours. ratified by the people, especially that they have done so in accordance with Article XV of the
15 See page 4, last paragraph, of his Comment dated Feb. 6, 1973. 1935 Constitution. The petitioners maintain

_______________

80 16 In 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;
80
Johnson v. Craft, 87 So. Rep. 375.
SUPREME COURT REPORTS ANNOTATED
81
Javellana vs. The Executive Secretary

It is well settled that the matter of ratification of an amendment to the Constitution should be
VOL. 50, MARCH 31, 1973
settled by applying the provisions of the Constitution in force at the time of the alleged
ratification, or the old Constitution.16 81
II Javellana vs. The Executive Secretary
Does the issue on the validity of Proclamation No. 1102 partake of the nature of a political, that the conclusion reached by the Chief Executive in the dispositive portion of Proclamation
and, hence, non-justiciable question? 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
The Solicitor General maintains in his comment the affirmative view and this is his main
has not been held; that the Chief Executive has no authority, under the 1935 Constitution, to
defense. In support thereof, he alleges that petitioners would have this Court declare as
dispense with said election or plebiscite; that the proceedings before the Citizens
invalid the New Constitution of the Republic from which he claims this Court now
Assemblies did not constitute and may not be considered as such plebiscite; that the facts
derives its authority; that nearly 15 million of our body politic from the age of 15 years have
of record abundantly show that the aforementioned Assemblies could not have been held
mandated this Constitution to be the New Constitution and the prospect of unsettling acts
throughout the Philippines from January 10 to January 15, 1973; and that, in any event, the
done in reliance on it caution against interposition of the power of judicial review; that in the
proceedings in said Assemblies are null and void as an alleged ratification of the new
case of the New Constitution, the government has been recognized in accordance with the
Constitution proposed by the 1971 Constitutional Convention, not only because of the
New Constitution; that the countrys foreign relations are now being conducted in
circumstances under which said Assemblies had been created and held, but, also, because
accordance with the new charter; that foreign governments have taken note of it; that the
persons disqualified to vote under Article V of the Constitution were allowed to participate
plebiscite cases are not precedents for holding questions regarding proposal and
therein, because the provisions of our Election Code were not observed in said Assemblies,
ratification justiciable; and that to abstain from judgment on the ultimate issue of
because the same were not held under the supervision of the Commission on Elections, in
constitutionality is not to abdicate duty.
violation 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 peoples
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 specifically to the issue on whether the new Constitution proposed by
the 1971 Constitutional Convention has been ratified 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
_______________
17 Mun. of Malabang v. Benito, L-28113, Mar. 28, 1969; NAWASA v. Piguing, et al., L-35573,
Oct. 11, 1968; Fernandez v. P. Cuerva & Co., L-21114, Nov. 25, 1967; Gonzales v.
Commission on Elections, L-28224, Nov. 29, 1967; Bara Lidasan v. COMELEC,
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Javellana vs. The Executive Secretary
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 effect 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
_______________
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, L-23326, Dec. 18, 1965; Mun. of La
Carlota v. NAWASA, L-20232, Sept. 30, 1964; Guevara 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; Mun. of Naguilian v. NAWASA, L-18540, 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., L-15254, Sept. 16, 1961;
Macias v. Commission on Elections, L-18684, Sept. 14, 1961; Philippine Tobacco Flue-
Curing & 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 Office 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; Corominas, Jr. v. Labor Standards
Commission, L-14837, June 30, 1961; City of Baguio 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, L-35961, L-
35965 and L-35979, decided on January 22, 1973.
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Javellana vs. The Executive Secretary
whether Presidential Decree No. 73 calling a plebiscite to be held on January 15, 1973, for
the ratification or rejection of the proposed new Constitution, was valid or not, was not a
proper subject of judicial inquiry because, they claimed, it partook of a political nature, and
We unanimously declared that the issue was a justiciable one. With identical unanimity, We
overruled the respondents contention in the 1971 habeas corpus cases,19 questioning Our
authority to determine the constitutional sufficiency of the factual bases of the Presidential
proclamation suspending the privilege of the writ of habeas corpus on August 21, 1971,
despite the opposite view taken by this Court in Barcelona v. Baker20 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
modified, 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
_______________
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.
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SUPREME COURT REPORTS ANNOTATED
Javellana vs. The Executive Secretary
aforementioned habeas corpus cases partakes of the nature and effect 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 (3) 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 conflicts 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 field 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
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25 In re McConaughy, 119 N.W. 408, 417.
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Javellana vs. The Executive Secretary
Appointments may approve or disapprove some appointments made by the President. It,
also, has the power of appropriation, to define, 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 x x x such inferior courts as may
be established by law, may settle or decide with finality, not only justiciable controversies
between private individuals or entities, but, also, disputes or conflicts between a private
individual or entity, on the one hand, and an officer or branch of the government, on the
other, or between two (2) officers or branches of service, when the latter officer 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 officer or branch of the government is absolute or unqualified,
the acts in the exercise of such power are said to be political in nature, and, consequently,
non-justiciable or 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 certificate of the
state canvassing board would then be final, 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.
* * * *
* * * 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 specifically delegated to some other department or particular officer of the
government, with discretionary power to
_______________
26 103 Phil. 1051, 1067.
27 119 N.W. 408, 411, 417.
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SUPREME COURT REPORTS ANNOTATED
Javellana vs. The Executive Secretary
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 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 him, free from judicial control, so long as he observes the
laws act within the limits of the power conferred. His discretionary acts cannot be
controllable, not primarily because they are of a politics nature, but because the Constitution
and laws have placed the particular matter under his control. But every officer under
constitutional government must act accordingly to law and subject 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
official 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 x x x 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.
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Javellana vs. The Executive Secretary
Accordingly, when the grant of power is qualified, conditional or subject to limitations, the
issue on whether or not the prescribed qualifications or conditions have been met, or the
limitations respected, is justiciable or non-political, the crux of the problem being one
of legality or validity of the contested act, not its wisdom. Otherwise, said qualifications,
conditions or limitations particularly those prescribed or imposed by the Constitution
would be set at naught. 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 satisfied 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 conflict, the judicial department is
the only constitutional organ which can be called upon to determine the proper allocation of
powers between the several departments of the government.30
_______________
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.
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SUPREME COURT REPORTS ANNOTATED
Javellana vs. The Executive Secretary
The Solicitor General has invoked Luther v. Borden31 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 filed by Luther with the Circuit Court of the United
States against Borden and others for having forcibly entered into Luthers 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 officer, 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 dissatisfied with the charter government.
Memorials addressed by them to the Legislature having failed to bring about the desired
effect, 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
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31 12 L. ed. 581 (1849).
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Javellana vs. The Executive Secretary
was submitted to the people. Upon the return of the votes cast by them, the convention
declared that said Constitution had been adopted and ratified 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 affairs
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 ratified
by the people. (T)he times and places at which the votes were to be given, the persons who
were to receive and return them, and the 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 powers 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 effort was made to establish his government. x x x until the
Constitution of 1843 adopted under the auspices of the charter government went into
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SUPREME COURT REPORTS ANNOTATED
Javellana vs. The Executive Secretary
operation, the charter government continued to assert its authority and exercise its powers
and to enforce obedience throughout the state x x x.
Having offered to introduce evidence to prove that the constitution of the rebels had been
ratified by the majority of the people, which the Circuit Court rejected, apart from rendering
judgment for the defendants, the plaintiff took the case for review to the Federal Supreme
Court which affirmed 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 went into
operation. The judges who decided that 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 the 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 belong to the State courts. But the
power of determining that a State government has been lawfully established, which the
courts of the 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
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32 Luther v. Borden, supra, p. 598. Italics ours.
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It is thus apparent that the context within which the case of Luther v. Borden was decided is
basically and fundamentally different 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
of government, than on recognition of constitution, and there is a fundamental difference
between these two (2) types of recognition, the first 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 has been adopted in the manner prescribed in the
Constitution in force at the time of the purported ratification of the former, which
is essentially a justiciable question. There was, in Luther v. Borden, a conflict
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
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Javellana vs. The Executive Secretary
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 Minnessota 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 slightestapplication to the case at bar. When carefully analyzed,
it appears that it merely determines that the federal courts will accept as final and controlling
a decision of the highest court of a state upon a question of the construction of the
Constitution of the state. x x x.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: x x x (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 x x x.
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 affirming that of a Federal
District Court, dismissing Powells action for a declaratory judgment declaring thereunder
that he whose qualifications were uncontested had been unlawfully excluded from the
90th Congress of the U.S. Said dismissal
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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).
35 395 U.S. 486, 23 L. ed. 2d. 491, 89 S. Ct. 1944 (1969).
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Javellana vs. The Executive Secretary
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 effect 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. x x x.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
ratified 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 Courts 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 fide controversy as to whether some action denominated political exceeds
constitutional authority.37
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36 In re McConaughy, 119 N.W. 408, 415. Emphasis 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.
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III
Has the proposed new or revised Constitution been ratified conformably to said Art. XV of
the 1935 Constitution?
Petitioners in L-36142 maintain the negative view, upon ground: 1) that the President is
without authority to create the Citizens Assemblies through which, respondents maintain,
the proposed new Constitution has been ratified; 2) that said Assemblies are without power
to approve the proposed Constitution; 3) that the President is without power to proclaim the
ratification 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
ratification or rejection of the proposed new Constitution or to appropriate funds for the
holding of the 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 unfit for x x x submission the people; 3) that
(t)he period of time between November 1972 when the 1972 draft was approved and
January 11-15, 1973, when the Citizens Assemblies supposedly ratified 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 a which they never knew
would be submitted to them ratification 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 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
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Javellana vs. The Executive Secretary
Constitution to the people; and 2) Proclamation No. 1102 is null and void (i)nasmuch as
the ratification 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 ratification 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 purpose within two years after the adoption of this Constitution, not less than three hundred
assembled; thousand women possessing the necessary qualifications shall vote affirmatively on the
question.
2. That such amendments be submitted to the people for their ratification at an election;
and Sections 1 and 2 of Art. X of the Constitution ordain in part:

3. That such amendments be approved by a majority of the votes cast in said election. 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
Compliance with the first requirement is virtually conceded, Commission on Appointments, who shall hold office for a term of nine years and may not be
_______________ reappointed. ...

38 See p. 5 of the Petition. xxx xxx xxx

96 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, affecting elections, including the determination of
96
the number and location of polling places, and the appointment of election inspectors and of
SUPREME COURT REPORTS ANNOTATED other election officials. All law enforcement agencies and

Javellana vs. The Executive Secretary 97

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.
VOL. 50, MARCH 31, 1973
The main issue in these five (5) cases hinges, therefore, on whether or not the last two (2)
requirements have been complied with. 97
2. Has the contested draft of the new or revised Constitution been submitted to the people Javellana vs. The Executive Secretary
for their ratification conformably to Art. XV of the Constitution?
instrumentalities of the Government, when so required by the Commission, shall act as its
In this connection, other provisions of the 1935 Constitution concerning elections must, deputies for the purpose of insuring fee, orderly, and honest elections. The decisions, orders,
also, be taken into account, namely, section I of Art. V and Art. X of said Constitution. The and rulings of the Commission shall be subject to review by the Supreme Court.
former reads:
xxx xxx xxx39
Section 1. Suffrage may be exercised by male citizens of the Philippines not otherwise
disqualified 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 a. Who may vote in a plebiscite under Art. V of the Constitution?
they propose to vote for at least six months preceding the election. The National Assembly
shall extend the right of suffrage to women, if in a plebiscite which shall be held for that
Petitioners maintain that section 1 of Art. V of the Constitution is a limitation upon the
exercise of the right of suffrage. They claim that no other persons than citizens of the
Philippines not otherwise disqualified 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 suffrage in the Philippines. Upon the other hand, the Solicitor
General contends that said provision merely guarantees the right of suffrage 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 qualifications, and possessing some of the aforesaid
disqualifications. In support of this view, he invokes the permissive nature of the language
(s)uffrage may be exercised used in section 1 of Art. V of the Constitution, and the The third recommendation on compulsory voting was, also debated upon rather
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 Generals theory. Art. V of the Constitution declares who may
exercise the right of suffrage, so that those lacking the qualifications therein prescribed
may not exercise such right. This view is borne out by the records of
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39 Italics ours.
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Javellana vs. The Executive Secretary
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 suffrage of the
Convention that drafted said Constitution which report was, in turn, strongly influenced by
the election laws then in force in the Philippines x x x.40 Said committee had recommended:
1) That the right of suffrage should exercised only by male citizens of the Philippines. 2)
That should be limited to those who could read and write. 3) That the duty to vote should
be made obligatory. It appears that the first 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 said Constitution the duty to extend the
right of suffrage 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
extensively, after which it was rejected by the Convention.42 This accounts, in my opinion,
for the permissive language used in the first sentence of said Art. V. Despite some debates
on the age qualification amendment having been proposed to reduce the same to 18 or
20, which were rejected, and the residence qualification, as well as the disqualifications to
the exercise of the right of suffrage the second recommendation limiting the right of
suffrage to those 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
_______________
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.
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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 qualifications and none of the disqualifications 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 suffrage responsible for the adoption
of section 1 of Art. V of the Constitution was strongly influenced by the election laws then in
force in the Philippines. Our first 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 1917 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 qualifications for and disqualifications from voting, are
quoted below.44 In all of these legislative acts, the provisions concerning the qualifications
of voters partook of the nature of a grant or recognition of the right of suffrage, and, hence,
of a
_______________
43 Id., pp. 224-227.
44 SEC. 431. Qualifications 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 offer to vote
for six months next preceding the day of voting is entitled to vote in all elections if comprised
within either of the
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Javellana vs. The Executive Secretary
denial thereof to those who lacked the requisite qualification and possessed any of the
statutory disqualifications. In short, the history of section 1, Art. V of the Constitution, shows
beyond doubt than the same conferred not guaranteed the authority to persons having
the qualifications prescribed therein and none of disqualifications to be specified in ordinary
laws and, necessary implication, denied such right to those lacking any 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
_______________
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 five hundred pesos, declared in their name
for taxation purposes for a period 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 ninety-eight,
has been sentenced by final judgment to suffer 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 taken by 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
meetings for registration and revision, that they are incapacitated preparing their ballots due
to permanent physical disability, present themselves at the hour of voting as incapacitated,
irrespective whether such incapacity be real or feigned.
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Javellana vs. The Executive Secretary
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 amendment, but
a partial amendment of said section 1, which could be amended further, after its ratification,
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 assembly plebiscites is, to say the least, a debatable one. Indeed, there seems
to be a conflict 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
_______________
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 qualified 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.
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SUPREME COURT REPORTS ANNOTATED
Javellana vs. The Executive Secretary
members qualified 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
the barrio during the six months immediately preceding election, duly registered in the list
of voters and otherwise disqualified x x x just like the provisions of 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 conflict should resolved in favor of the 21-year-old
members of the assembly, not only because this interpretation is in accord with Art. V the
Constitution, but, also, because provisions of a Constitution particularly of a written and
rigid one, like ours 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 sufficiently important to be included in the Fundamental Law of the
land.48 Besides, it would be illogical, if not absurd, believe that Republic Act No. 3590
requires, for the most important measures for which it demands in addition to favorable
action of the barrio council the approval of barrio assembly through aplebiscite, lesser
qualifications 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 officers, not to plebiscites for the
ratification of amendments to the Fundamental Law or revision thereof, or of an entirely new
Constitution, and permit the legislature to require lesser qualifications for such ratification,
notwithstanding the fact that the object thereof 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 a intended to be in force permanently, or, at least, for
many
_______________
48 Edwards v. Lesueur, 33 S.W. 1130; Johnson v. Grand Forks County, 113 N.W. 1071;
Ellingham v. Dye (1912), 178 Ind. 336, 99 N.E. 1; State v. Marcus, 160 Wis. 354, 152 N.W.
419.
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Javellana vs. The Executive Secretary
decades, and to affect 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 officers,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 qualifications laid down in both the Constitution and the
present Election Code,50 and of whether or not they are disqualified under the provisions of
said Constitution and Code,51 or those of Republic Act No. 3590,52 have participated
_______________
49 In Alcantara v. Secretary of the Interior, 61 Phil. 459, this Court held that when a state
constitution enumerates and fixes the qualifications of those who may exercise the right of
suffrage, the legislature cannot take from nor add to said qualifications unless the power to
do so is conferred upon it by the constitution itself.
Since suffrage, according to Webster, is a voice given not only in the choice of a man for an
office or trust, but, also, in deciding a controverted question, it follows, considering the said
ruling in Alcantara, that the constitutional qualifications for voters apply equally to voters in
elections to public office and to voters in a plebiscite.
Similarly, the Revised Election Code provides in its section 2 that all elections of public
officers 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. Qualifications prescribed for a voter.Every citizen of the Philippines, not
otherwise disqualified 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 final judgment to suffer an imprisonment of not
less than one year, such disability not having been removed by plenary pardon: Provided,
however, That any person disqualified to vote under this paragraph shall
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Javellana vs. The Executive Secretary
and voted in the Citizens Assemblies that have allegedly ratified the new or revised
Constitution drafted by the 1971 Constitutional Convention.
In fact, according to the latest official 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 14,976,56 members of all the Barangays (Citizens
Assemblies) voted for the adoption of the proposed Constitution, as against x x x 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, x x x 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 qualifications prescribed in section 1 of
_______________
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 final 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. x x x
The following persons shall not be qualified to vote:
a. Any person who has been sentenced by final judgment to suffer 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.
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Javellana vs. The Executive Secretary
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 qualified 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 x x x should be exercised x x x 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 x x x.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 effect 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 affected 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 x x x 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. 56The word cast is records that permit judicial inquiry, when necessary, into the accuracy of the election returns.
defined as to deposit formally or officially. 57
_______________
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.
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SUPREME COURT REPORTS ANNOTATED
Javellana vs. The Executive Secretary
It seems to us that a vote is cast when a ballot is deposited indicating a choice. x x x The
word cast means deposit (a ballot) formally or officially x x x.
x x x In simple words, we would define 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 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 official ballots prepared and
furnished by the Government and secrecy in the voting, with the advantage of keeping
And the 1935 Constitution has been consistently interpreted in all plebiscites for the
ratification 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 19 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 x x x. 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 depends upon either Congress or the Judiciary? The answer must be the
negative, because the functions of the Commission enforcement and administration of
election laws are neither legislative nor judicial in nature, and, hence, beyond
_______________
58 Port of Palm Beach District v. State, 22 So. 2d. 581, 582-583. Italics ours.
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Javellana vs. The Executive Secretary
the field 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 offices 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
effectivity 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
effect, 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
office of its members nine (9) years, except those first appointed59 the longest under
the Constitution, second only to that of the Auditor General60; by
_______________
59 Art. X, section 1 of the 1935 Constitution.
60 Ten (10) years.
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SUPREME COURT REPORTS ANNOTATED
Javellana vs. The Executive Secretary
providing that they may not be removed from office 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 office; that the decisions the
Commission shall be subject to review by the Supreme Court only61; that (n)o pardon,
parole, or suspension sentence for the violation of any election law may be granted without
the favorable recommendation of the Commission62; and, that its chairman and members
shall not, during the continuance in office, 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 affected by the functions of their office; nor shall they, directly or indirectly,
be financially 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 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
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 question affecting elections, including the
determination of the number and location of polling places, and the appointment of election
inspectors and of other election officials. And, to forests possible conflicts or frictions
between the Commission, on one hand, and the other offices 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
_______________
61 Art. X, section 2 of the 1935 Constitution.
62 Ibid.
63 Art. X, section 3 of the 1935 Constitution.
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its deputies for the purpose of insuring free, orderly, and honest elections. Not satisfied with
this, it declares, in effect, that (t)he decisions, orders, and ruling 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 the 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
_______________
64 SEC. 5. Organization of the Commission on Elections.The Commission shall adopt its
own rules of procedure. Two members of the Commission shall constitute a quorum. The
concurrence of two members shall be necessary for the pronouncement or issuance of a
decision, order or ruling.
The Commission shall have an executive and such other subordinate officers and
employees as may be necessary for the efficient 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 officer 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 he 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 officer 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 land bring him before the Commission or officer 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
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(corrupt) practices; the establishment of election precincts; the designation and arrangement
of polling places, including voting booths, to protect the secrecy of the ballot; formation of
lists of voters, the identification 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 files of registered voters; the composition and
appointment of board of election inspectors; the particulars of the official ballots to be used
and the precautions to be taken to insure 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, provincials and national boards of canvassers; the presentation of the political
parties and/or their candidates in each election precinct; the proclamation of the results,
including, in the case of election of public officers, election contests; and the jurisdiction of
courts of justice in cases of violation of the provisions of said Election Code and the penalties
for such violations.
Few laws may be found with such meticulous and elaborate set of provisions aimed at
insuring free, orderly, and honest election, 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
_______________
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, deputized 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 final 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 a certiorari in accordance with the Rules of Court or such
applicable laws as may enacted.
Any violation of any final executory decision, order or ruling of the Commission shall
constitute contempt thereof.
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even sought to be given therefor. In many, if not most, instances, the election 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 Glen 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 officers involved
cannot be too strongly condemned therefor and that if they could legally dispense with
such requirement ... 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 x x x.
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 which was contested in the plebiscite cases, as well as in the
1972 habeas corpus cases66 We need not, in the case of 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 ratification or rejection; directing the
publication of said proposed Constitution; and declaring, inter alia, that (t)he provision of the
Election Code of 1971, insofar as they are not inconsistent with said decree excepting
those regarding right 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 officers except barrio officials and plebiscites shall be
_______________
65 64 S.W. 2d. 168.
66 L-35538, Roses, 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.; L-35546,
Aquino, Jr., et al. v. Hon. Enrile, et al.; L-35547, Garcia II v. Hon. Enrile, et al.; L-35567
Doronila, et al. v. Secretary of National Defense, et al.; L-35573, Randon v. Hon. Enrile, et
al.
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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 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 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
proposed Constitution x x x temporarily suspending effects of Proclamation No. 1081 for the
purposes of free open debate on the proposed Constitution x x x. This specific 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 ratification 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
below67 the Executive declared,
_______________
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 field as gathered from
barangays (citizens assemblies) have so far been established, the people would like to
decide 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
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Javellana vs. The Executive Secretary
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 specific decision; that such Citizens Assemblies shall
consider vital national issues x x x like the holding of the plebiscite on the new Constitution
x x x 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
_______________
conduct immediately a referendum on certain specified questions such as the ratification 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 affairs 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 specified 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 reflected
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.)
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Javellana vs. The Executive Secretary
those specified in paragraph 2 hereof, and submit the results thereof to the Department of
Local Governments and Community Development immediately thereafter, x x x. 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 Art. V of the 1935 Constitution. The provision of Decree No.
86-A directing the immediate submission of the result thereof to the Department of Local
Governments 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 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 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 include
the matter of ratification of the Constitution 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 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
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Javellana vs. The Executive Secretary
No. 73. What is more, they were held under the supervision of the very officers and agencies
of the Executive Department sought to be excluded therefrom by Art. X of the 1935
Constitution. Worse still, said officers and agencies of the 1935 Constitution would be
favored thereby, owing to the practical indefinite extension of their respective terms of office
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 files by the
officers who conducted said plebiscites. This is another patent violation of Art. 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 peoples 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 ratified the revised Constitution
proposed by the 1971 Constitutional Convention. x x x (a)ll the authorities agree that the
legal definition of an election, as well as that which is usually and ordinarily understood by
the term, is a choosing or as election by those having a right to participate (in the selection)
of those who shall fill the offices, or of the adoption or rejection of any public measure
affecting 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; Bouviers Law
Dictionary.68
_______________
68 McKinney v. Baker, 180 Ky. 526 203 S.W. 303, 304. Italics ours.
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Javellana vs. The Executive Secretary
IV
Has the proposed Constitution aforementioned been approved by a majority of the people
in Citizens Assemblies allegedly held throughout the Philippines?
Respondents maintain the affirmative, 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, ratified, 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 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 its power are derived.
The major flaw 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
x x x every officer 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 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. x x x.
Accordingly, the issue boils downs to whether or not the Executive acted within the limits of
his authority when he
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certified in Proclamation No. 1102 that the Constitution proposed by the nineteen hundred
and seventy-one (1971) Constitutional Convention has been ratified 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 certified 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 officers or for the
ratification 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 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
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SUPREME COURT REPORTS ANNOTATED
Javellana vs. The Executive Secretary
President of the National Association or Federation, whereupon Mr. Cruz, acting in a
ceremonial capacity, reported said results (tabulated by the Department of 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, so that he could 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 February 16, 1973, and in the
resolution of this Court of same date, the Solicitor General was asked to submit, together
with his notes on his oral argument, a true copy of aforementioned report of Mr. Cruz to the
President and of (p)roclamation, decree, instruction, order, regulation or circular, if any,
creating or directing or authorizing creation, establishment or organization of said municipal,
provincial and national associations, but neither a copy of alleged report to the President,
nor a copy of any (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 set forth in the dispositive portion of said Proclamation No. 1102, to the effect that
the proposed new or revised Constitution had been ratified by majority of the votes cast by
the people, can not possibly have any legal effect or value.
The theory that said proclamation is conclusive upon 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
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Javellana vs. The Executive Secretary
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 office involved.71 If prior to the creation of the Presidential Electoral
Tribunal, no such protest could be filed, it was not because the resolution of Congress
declaring who had been elected President or Vice-President was conclusive upon courts of
justice, but because there was no law permitting the filing of such protest and declaring what
court or body would hear and decide the same. So, too, a declaration to the effect that a
given amendment to the Constitution or revised or new Constitution has been ratified 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 McConaughy72 is squarely in point. As the Constitution stood from the
organization of the state of Minnessota 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 scientific and satisfactory methods of raising revenue induced
_______________
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.
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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 no in fact
been adopted, and on this appeal the Supreme Court was required to determine the
correctness of that conclusion.
Referring to the effect 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 board 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 officers, and
canvassing boards are not conclusive and that the final decision must rest with the courts,
unless the law declares that the decisions of the board shall be final and there is no such
law in the cases at bar. x x x 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 final and conclusive regardless of the actual
facts. The proclamation of the Governor adds nothing in the way of conclusiveness to the
legal effect 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
_______________
73 63 N.J. Law, 289, cited in In re McConaughy, supra.
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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 certification 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 certified to the President the alleged result of the citizens 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 ratification 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 ratified in accordance with the provisions of the 1935
Constitution. In fact, it has not even been, ratified in accordance with said proposed
Constitution, the minimum age requirement therein for the exercise of the right of suffrage
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 ratification of an amendment or revision
of the first Constitution or the effectivity 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
_______________
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.
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Javellana vs. The Executive Secretary
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 file their answers, and the plaintiffs 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 ratification 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 effects 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 ratification or rejection of the Proposed Constitution. No formal action
to this effect 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 effects 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 officially. Then again, Congress was,
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Javellana vs. The Executive Secretary
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 cases76 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 sufficiency 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 afford 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 effect, accelerated, according to the theory of the Solicitor General, for the ratification 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 plebiscitepostponed 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 ratification 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?
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76 On December 19, 1972.
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[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 affairs of the government? [Bulletin
Today, January 10, 1973; emphasis an additional question.]
[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 the new Constitution? One
approves of the act of another which does not need such approval for the effectivity of said
act, which the first person, however, finds to be good, wise satisfactory. The approval of the
majority of the votes cast in 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 affirmatively or negatively. If the
majority of the answers to question No. 7 were in the affirmative, the proposed Constitution
would have become effective and no other
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plebiscite could be held thereafter in connection therewith, even if the majority of the answers
to question No. 8 were, also, in the affirmative. 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 affirmative. In either case, not more than one plebiscite
could be held for the ratification 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 ratification 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:
x x x This report includes a resumee (sic) of the activities we undertook in effecting
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
x x x Our initial plans and preparations, however, dealt only on the original five 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 Offices and other government officials to another conference to discuss
with them the new set of guidelines and materials to be used.
On January 11, x x x another instruction from the top was received to include the original
five questions among those to be discussed and asked in the Citizens Assembly meetings.
With this latest order, we again had to make modifications in our instructions to all those
managing and supervising the holding of the Citizens Assembly meetings throughout the
province. x x x Aside from the
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coordinators we had from the Office of the Governor, the splendid cooperation and support
extended by almost all government officials 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. x x x
x x x 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 officials had to suspend all scheduled
Citizens Assembly meetings ... and call all available officials x x x to discuss with them the
new set of guidelines and materials to be used x x x. Then, on January 11 x x x another
instruction from the top was received to include the original five questions among those
be discussed and asked in the Citizens Assembly meetings. With this latest order, we again
had to make modifications in our instructions to all those managing and supervising holding
of the Citizens Assembly meetings throughout province. x x x 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 a January 11, 1973, the Bataan
officials 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 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 ratification 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 decision by the people on the new way of life, as a nation,
they
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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 officials 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 notified 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 affecting the existence and validity of any law or portion of the Constitution x x x.
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 the political organ of a government that purports to be republican is essentially the Congress
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, 1971, 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,
_______________
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.
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indicated their conformity thereto.
As regards the so-called political organs of the Government, gather that respondents refer
mainly to the offices under the Executive Department. In a sense, the latter performs some
functions which, from a constitutional viewpoint, are politics 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 effect.
Acts of Congress which define 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,
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 the officers and offices of the
Executive Department, in line with Proclamation No. 1102, connote a recognition thereof o
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
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79 Art. VII, section 10, paragraph (1).
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proposed by the 1971 Constitutional Convention has been ratified 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 final 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 officer or office of the Government
complies with the commands of a superior officer or office, 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
officer or office, if he or it acted otherwise, would just be guilty of insubordination.
Thus, for instance, the case of Taylor v. Commonwealth80 cited by respondents herein
in support of the theory of the peoples 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 fidelity 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 x x x;
_______________
80 101 Va. 529, 44 S.E. 754.
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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 x x x;
4. The judiciary in taking the oath prescribed thereby to support it and by enforcing its
provisions x x x; 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 ratification 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 specified 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 effectivity 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 five (5)
weeks before the scheduled plebiscite, whereas the validity of Proclamation No. 1102
declaring on January 17, 1973, that the proposed Constitution had been ratified despite
General Order No. 20, issued on January 7, 1972, formally and officially suspending the
plebiscite until further notice was impugned as early as January 20, 1973, when L-36142
was filed, or three (3) days after the issuance of Proclamation No. 1102.
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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 filing 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 Officers, 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 official acts. The force of this argument is,
however, offset 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 effect that certain members
of the Senate appear to be missing the point in issue when they reportedly insisted on taking
up first 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.
_______________
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.
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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 x x x which may result in the exercise by me of
authority I have not exercised.
No matter how good the intention behind these statement 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 justified 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 peoples 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 effects
issued subsequently thereto amounts, constitutes or attests to a ratification, 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 reflect 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
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83 Daily Express, November 29, 1972, p. 4. Italics ours.
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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 find it difficult 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 certified 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 certified
by the aforementioned officers of Congress, the so-called enrolled bill were certified 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 officers 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 official
authority to perform in connection therewith, and, hence, his certification is legally, as good
as non-existent.
Similarly, a certification, if any, of the Secretary of the Department of Local Governments
and Community Development about the tabulated results of the voting in the
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Citizens Assemblies allegedly held all over the Philippines and the records do not show
that any such certification, to the President of the Philippines or to the President Federation
or National Association of presidents of Provincial Associations of presidents of municipal
association 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 officer designated by law to superintend plebiscites or elections held for
the ratification or rejection of a proposed amendment or revision of the Constitution and,
hence, to tabulate the results thereof. Worse still, it is the department which, according to
Article X of the Constitution, should not and must not be all 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 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 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 be said about the procedure followed
in these five (5) cases. In this connection, it should be noted that the Court has not 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 voting to dismiss them outright and then
considers comments thus submitted by the respondents as motions to dismiss, as well as
set the same for hearing. This was due to
_______________
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.
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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 filing 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, filed an opinion
passing upon the merits thereof. On the other hand, three (3) members of the Court
Justices Barredo, Antonio and Esguerra filed 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 filed, 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 sufficiently
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
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86 Justice Barredos opinion in the plebiscite cases.
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afternoon, or a total of exactly 26 hours and 31 minutes the respective counsel filed
extensive notes on their or 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 document 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 filed 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 opinion attached hereto. Hence, the resume of the votes
cast 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, 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 respondent in said case, as well as in cases
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 ratified in accordance with Article XV of the 1935 Constitution, either strictly,
substantially, or has been acquiesced in by the people or majority thereof; that said proposed
Constitution is not in force and effect; and that the 1935 Constitution is still the
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Fundamental Law of the Land, without prejudice to the submission of said proposed
Constitution to the people at a plebiscite for its ratification 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
difficult, 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 Courts 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
five 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, qualifications and modifications 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.
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The five questions thus agreed upon as reflecting 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 ratified validly
(with substantial, if not strict, compliance) conformably to the applicable constitutional and
statutory provisions?
3. Has the aforementioned proposed Constitution 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 respect opinions and/or concurrences, are as follows:
1. On the first 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 qualified his vote,
stating that inasmuch as it is claimed there has been approval by the people, the Court may
inquire into the question of whether or not there has actually been such an approval, and, in
the affirmative, the Court should keep hands-off out of respect to the peoples will, but, in
negative, the Court may determine from both factual and legal angles whether or not Article
XV of the 1935 Constitution been complied with. Justices Makasiar, Antonio, 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 ratification, Justices Makalintal, Zaldivar, Castro,
Fernando, Teehankee
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and myself, or six (6) members of the Court also hold that the Constitution proposed by the
1971 Constitutional Convention was not validly ratified in accordance with Article XV, section
1 of the 1935 Constitution, which provides only one way for ratification, i.e., in an election
or plebiscite held in accordance with law and participated in only by qualified and duly
registered voters.87
Justice Barredo qualified his vote, stating that (A)s to whether or not the 1973 Constitution
has been validly ratified 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 ratifications, 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 effect, 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 effect 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
_______________
87 Joint Opinion of Justices Makalintal and Castro, p. 153.
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accepted the 1973 Constitution.
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 qualified 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 effect that independently of the validity of the ratification, a new
Constitution once accepted 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 difficulty 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.88
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 vehicle 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. Justice
Makalintal and Castro so voted on the strength of their view that (T)he effectivity of the said
Constitution, in the final analysis, is the basic and ultimate question posed by these cases to
resolve which considerations other than judicial, an therefore beyond the competence of this
Court,90 are relevant and unavoidable.91
_______________
88 Justice Barredos 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.
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Javellana vs. The Executive Secretary
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 peoples 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 VOL. 50, MARCH 31, 1973
force.
143
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 Javellana vs. The Executive Secretary
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. ANNEX A

It is so ordered. PERTINENT PORTIONS

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

Concepcion, C.J., dissents. MINNESSOTA SUPREME COURT

Zaldivar, J., dissents in line with the personal opinion of DECISION

142 ON THE CASE

IN RE McCONAUGHY*

142 (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 ratification of
SUPREME COURT REPORTS ANNOTATED constitutional amendments. It has beenjudicially determined whether a proposed
Javellana vs. The Executive Secretary 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,
the Chief Justice, and also dissents in a separate opinion. 45 L.R.A. 251; State v. Foraker, 46 Ohio St. 677, 23 N.E. 49l; 6 L.R.A. 422; Tecumseh
National Bank V. Saunders, 51 Neb. 801, 71 N.W. 779; Green v. State Board, 5 Idaho, 130,
Fernando, J., dissents in conformity with the personal views of the Chief Justice, except as 47 Pac. 259, 95 Am. St. Rep. 169; In re Denny, 156 Ind. 104, 59 N.E. 359, 51 L.R.A. 722;
to such portions thereof on which he expresses his own thoughts as set forth in his dissenting Knight v. Shelton [C.C.] 134 Fed. 423); whether a proposed amendment is a single
opinion; amendment, within the constitutional requirement that every amendment must be separately
Teehankee, J., dissents in conformity with the Chief Justices personal opinion and files a submitted (State v. Powell, 77 Miss. 543, 27 South. 927; Gabbert v. Chicago, etc., R. Co.,
separate dissent. 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
143
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. 56; State v. Tufly, 19 Nev. 391, 12 Pac. 835, 3 Am.
144
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SUPREME COURT REPORTS ANNOTATED
Javellana vs. The Executive Secretary
St. Rep. 895); whether the description of the amendment and the form of the ballot are
sufficient (Russell v. Croy, 164 M 69, 63 S.W. 849; State v. Winnett [ Neb.] 110 N.W. 1113,
L.R.A. [N.S.] 149; Murphy Chair Co. v. Attorney General [Mich.] 112 N.W. 127); whether the
method of submission 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 sufficient (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 well by resolution as by a
legislative act approved by the executive (Com. v. Griest, 196 Pa. 396, 46 Atl. 505, 50 L.R.
568; Warfield vi Vandiver, 101 Md. 78, 60 Atl. 538; Edward 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, 6
N.W. 418, 34 L.R.A. 97); at what election the amendment 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 final, 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 ratified by a vote of the people. One prerequisite is equally as
essential as the other. The amendment must first 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
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Javellana vs. The Executive Secretary
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 changes only by the peoplein 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 effected; 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. 700, the
146
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SUPREME COURT REPORTS ANNOTATED
Javellana vs. The Executive Secretary
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 an 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 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 officers 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 was held that, conceding the irregularity of the proceedings the
Legislature and the doubtful scope of the provisions for the election, yet in view of the very
uncertainty of such provision 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 taking judicial knowledge
of anything affecting 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 effect
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. 1113, 10 L.R.A. (N.S.) 149, and People v. Sours,
31 Colo. 369, 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
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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. InLivermore 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 materialvariance 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,
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113 Iowa, 250, 84 N.W. 1064.
In University v. McIver, 72 N.C. 76, 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 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 the 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 approved by both Legislatures, and that it did not
follow because the second Legislature adopted separately 8 out of 17 amendments adopted
by the first Legislature, it would have adopted the 17, or any of them, if they had been voted
upon the second in the form adopted by the first 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
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 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 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 contented
that the amendments had been improperly submitted and adopted by a majority of the
qualified voters voting at election, as required by the Constitution. The law did not
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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 qualified 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 final judgment as well, confides 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 affirmative, 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 Whitfield, 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 difficult and embarrassing
duty, one which we have not sought, but one which, like all others, must be discharged.
150
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In Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl. 744, 881, 45 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 officers 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 certificate showing the result of the voting
throughout the state, and made it the duty of the Governor at the designated time 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 certificate 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 filing such certificate 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 file 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 official
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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.
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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 Office of the President to
submit to them for resolution important national issues;
WHEREAS, one of the questions persistently mention refers to the ratification 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
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 fields, 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 an that the initial
referendum shall include the matter of ratification of the Constitution proposed by the 1971
Constitutional Convention.
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Javellana vs. The Executive Secretary
The Secretary of the Department of Local Government 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.
(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 sufficient 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 filed 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 certified and
proclaimed by the President on January 17, 1973 (Proclamation No. 1102) was not an act
of ratification, 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.
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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
part of this Constitution when approved by a majority of votes cast at an election at which
the amendments submitted to the people for their ratification. At the time Constitution was
approved by the Constitutional Convention on February 8, 1935, and ratified in a plebiscite
held on following May 14, the word election had already a definite meaning in our law and
jurisprudence. It was not a vague and amorphous concept, but a procedure prescribed by
statute ascertaining the peoples choices among candidates for public offices, or their will on
important matters submitted to the pursuant to law, for approval. It was in this sense that
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 officials 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 suffrage, and with
specific 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 qualified voters be registered in a permanent
list, the qualifications being those set forth in Article V, Section 1, of the 1935 Constitution
on the basis of age (21), literacy and residence. These qualifications are reiterated
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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 official 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 specific reference to the ratification 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 ratification pursuant to Article XV of the Constitution.
(2) Article XVII, Section 16, of the draft itself states:
Sec. 16. This Constitution shall take effect 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-five and all amendments thereto.
The same procedure is prescribed in Article XVI, Section 2, for the ratification of any future
amendment to or revision of the said Constitution.
(3) After the draft Constitution was approved by the
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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 ratification 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 ratification or rejection. The Decree had eighteen (18) sections in all, prescribing
in detail the different steps to be taken to carry out the process of ratification, 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 official 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 everybodys 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 ratified in only one way, that is, in an election or
plebiscite held in accordance with law and participated in only by qualified 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 ratification 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 ratification of such other amendments
later. This Court held
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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 sufficient 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 ratification of just one
amendment, as in Tolentino vs. COMELEC, but the ratification 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 ratified 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 afford 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.
_______________
* The undersigned (Justice Querube C. Makalintal) who had reserved his right to do so, filed
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.
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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
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 plebiscite
which he had called for January 15, 1973 (Presidential Decree No. 73) for the ratification of
the 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 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
plebiscite was reworded as follows: Do you like the plebiscite to be held later? The
implication, it may likewise be noted, was that the Assemblies should express their views as
to 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 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; emphasis
supplied].
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159 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 firm so that he can accomplish all his
Javellana vs. The Executive Secretary reform program and establish normalcy in the country. If all other measures fail, we want
President Marcos to declare a

160

Appended to the six additional questions above quoted were the suggested answers, thus:

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In order to broaden the base of citizens participation in government. Javellana vs. The Executive Secretary

QUESTION No. 2 revolutionary government along the lines of the new Constitution without the ad interim
Assembly.
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 So it was that on January 11, 1973, the second day of the purported referendum, the
Constitution by the Citizens Assemblies. suggestion was broached, for the first time, that the plebiscite should be done away with and
a favorable vote by the Assemblies deemed equivalent ratification. This was done, not in the
QUESTION No. 3 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.
If the Citizens Assemblies approve of the New Constitution, then the new Constitution should
be deemed ratified. There should be no serious dispute as to the fact that the manner in which the voting was
conducted in the Citizen Assemblies, assuming that such voting was held, was not within the
The vote of the Citizens Assemblies should already be considered the plebiscite on the New
intendment of Article XV, Section 1, of the 1935 Constitution nor in accordance with the
Constitution.
Election Code of 1971. The referendum can by no means be considered as the plebiscite
QUESTION No. 4 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
We are sick and tired of too frequent elections. We are fed up with politics, of so many on March 16, 1967 calling a Convention for the revision of the 1935 Constitution. The
debates and so much expenses. Citizens Assemblies were not limited to qualified, let alone registered voters, but included all
citizens from the age of fifteen, and regardless of whether or not they were illiterates, feeble-
QUESTION No. 5
minded, or ex convicts* these being the classes of persons expressly disqualified from
Probably a period of at least seven (7) years moratorium on elections will be enough for voting by Section 102 of the Election Code. In short, the constitutional and statutory
stability to be established in the country, for reforms to take root and normalcy to return. qualifications were not considered in the determination of who should participate. No official
ballots were used in the voting; it was done mostly by acclamation or open show of hands.
QUESTION No. 6 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
_______________
* Thus by Presidential Decree No. 86 what the Constitutional Convention itself had proposed
unsuccessfully as an amendment to the 1935 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
fifteen-year olds were included in the Citizens Assemblies.
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reporting the figures 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 suffrage 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 certified
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 finding that the ratification of the draft Constitution by the Citizens Assemblies,
as certified 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 finding, 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 official acts. No question of
wisdom or of policy is involved. But from this finding it does not necessarily follow that this
Court may justifiably declare that the Constitution has not become effective, and for that
reason give due course to these petitions or grant the writs herein prayed for. The effectivity
of the said Constitution, in the final analysis, is the basic and
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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 ratification 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 official position of the Government,
challenge the jurisdiction of this Court on the ground that the questions raised in the petitions
are political and therefore non-justiciable, 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 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
effect, 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 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 effective: the former by
organizing themselves and discharging their functions under it,
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and the latter by not 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 XVIII, 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 same 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-in-Chief 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 justified 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 ratification 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.
_______________
* According to the Solicitor General 92 Congressmen and 15 Senators (both numbers
constituting majorities) have expressed their option.
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If indeed it be accepted that the Citizens Assemblies had ratified the 1973 Constitution and
that such ratification 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
effective and, as 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 Citizen 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
effectively challenged only by a stronger force; judicial dictum can prevail against it. We do
not see that situation would be any different, as far as the doctrine of judicial review is
concerned, if no force had been resorted to and the people, in defiance of the existing
Constitution but 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 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
_______________
* Luther v. Borden, 48 U.S. (7 Haw.) 1, 12 L. Ed. 581 (1849).
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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 affirms 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 ratification of the Constitution was a
revolutionary act and that the government now functioning it is the product of such revolution.
However, we are not prepared to agree that the premise is justified.
In the first, place, with specific reference to the questioned ratification, several significant
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 afford 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 ratified, stated as follows: (S)ince the referendum results show that
more than ninety-five (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. (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
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to an indefinite 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 ratification (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 ratification 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 ratification (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 ratified, 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 ratified and had come into effect. 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 ratification. In this respect subjective factors, which
defy judicial analysis and adjudication, are necessarily involved.
In positing the problem within an identifiable frame of reference we find 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 effectivity of the said
Constitution by virtue of Presidential Proclamation No. 1102, upon the recommendation of
the Katipunan ng mga Barangay, was intended to be definite and irrevocable, regardless of
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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 Nation, Jan. 7, 1973.)
On the occasion of the signing of Proclamation No. 1102 on January 17, 1973, the 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
peoples will are too awesome to be even considered. For if any power in government should
even dare to disregard the peoples 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.
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On January 19, 1973 the Daily Express published 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 permit the customary concessions
to traditional democratic process to hold back our peoples 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
Revolutionary Government? They cannot be compatible ... (I)t is my feeling, he said, that I believe, therefore, in the necessity of Revolution as an instrument of individual and social
the Citizens Assemblies which submitted this recommendation merely sought 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 ratification of the new Constitution and the establishment of a
revolutionary government, the latter being unnecessary, in his opinion, because precisely
the Constitution had been ratified. 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 heed 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 significance, both explicit and implicit, and certainly unmistakable, in the
foregoing pronouncements, it is that the step taken in connection with the ratification of the
Constitution was meant to be irreversible, and that nothing
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anyone could say would make the least difference. 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 significant if not so emphatic in terms, President
Marcos has professed fealty to the Constitution. In Todays Revolution: Democracy he
says:
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; emphasis supplied).
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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 off the constitutional track, wont you be in serious trouble if
you run into critical problems with your programs?
A. I have never gotten off the constitutional track. Everything I am doing is in accordance
with the 1935 Constitution. The only thing is that instead of 18-year-olds voting, we have
allowed 15-year-olds the right 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 sufficient
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 Presidents 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, demand that the action he took pursuant thereto be final and irrevocable,
then judicial review is out of the question.
In articulating our view that the procedure of ratification
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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 nations 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 find 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 find 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 effect 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 OPINION
BARREDO, J.:
As far as I am concerned, I regard the present petitions as no more than mere reiterations
of the Supplemental Petitions filed by Counsel Lorenzo M. Taada on January 15, 1973 in
the so called Plebiscite Cases decided by this Court on January 22, 1978. Of course, there
are amplifications of some of the grounds previously alleged and in the course of the
unprecedented five-day hearing that was held from February 12 to 16 last, more extensive
and illuminating arguments were
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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
significance to our people and in history of the individual stands of the members of the Court
in relation to said issues and to the final outcome of these cases, and considering that I
reserved before the filing 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 peoples right of revolution to which I made pointed reference in my previous
opinion, I can see now, after further reflection, 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 ratified
without the necessity of holding a plebiscite in the form followed in the previous ratification
plebiscites in 1935 of the Constitution itself, 1937 of womens suffrage, 1939 of the
amendments to the Ordinance Appended to the Constitution, 1940 of the re-election of the
President, the bicameral legislature and the Commission on Elections, 1947 of the parity
amendment 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 ratification substantially in compliance with the basic intent of
Article XV of the 1935 Constitution. If indeed this explanation may be considered as a
modification 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 firmer 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
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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 ratification 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 difficulties, due to
bitter rivalries over important positions and committees and an incomprehensible fear of
overconcentrating powers in their officers, 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 insignificant 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 effect 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 specific
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
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time, public debates and discussions on various aspects of proposed amendments were not
uncommon.
Earlier, on November 22, 1972, the Convention had Resolution No. 5843 proposing to
President Ferdinand Marcos that a decree be issued calling a plebiscite for ratification of the
proposed new Constitution on appropriate date as he shall determine and providing for
necessary funds therefor. Acting under this authority, December 1, 1972, the President
issued Presidential Decree No. 73 submitting the draft constitution for ratification 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
proposed constitution. Not only this, subsequently, under date of December 17, 1972, the
President ordered the suspension the effects of martial law and lifted the suspension of
privilege of the writ of habeas corpus insofar as activities connected with the ratification 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 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 3, 1972 Presidential Decree No.
86 creating Citizens Assemblies so as to afford 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, the same order of January 7, 1973, General Order No. 20, the President ordered, that
the plebiscite scheduled to be held January 15, 1973, be postponed until further notice.
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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 field 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 specified questions such as the ratification 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 affairs 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
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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 specified in paragraph 2 hereof,
and submit results thereof to the Department of Local Governments Community
Development immediately thereafter, pursuant to express will of the people as reflected 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 Office of the President to
submit them for resolution important national issues;
WHEREAS, one of the questions persistently mentioned refers to the ratification 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 fields, and that it is now necessary
to bring this down to the level of the people themselves through the Barangays or Citizens
Assemblies;
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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 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:
(6) Do you want martial law to continue?
It is not seriously denied that together with the question the voters were furnished
comments on the said questions more or less suggestive of the answer desired. It may
assumed that the said comments came from official sources, albeit specifically unidentified.
As petitioners point out, the most relevant of these comments were the following:

(1) Do you like the New Society? COMMENTS ON

(2) Do you like the reforms under martial law? xxx xxx xxx

(3) Do you like Congress again to hold sessions? QUESTION No. 2

(4) Do you like the plebiscite to be held later?
(5) Do you like the way President Marcos is running the affairs 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?
178
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.

178 The Solicitor General claims, and there seems to be no

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VOL. 50, MARCH 31, 1973

(2) Do you approve of the New Constitution? 179

(3) Do you want a plebiscite to be called to ratify the new Constitution? Javellana vs. The Executive Secretary

(4) Do you want the elections to be held in November, 1973 in accordance with the showing otherwise, that the results of the referendum were determined in the following
provisions of the 1935 Constitution? manner:

(5) If the elections would not be held, when do you want it to be called? 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 all
provincial capitals and the National Civil Defense Network connecting all provincial capitals.
The certificates of results were then flown to Manila to confirm the previous figures received
by the aforementioned means of transmission. The certificates of results tallied with the
previous figures 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 staff in charge of each region. Every afternoon at 2:00 oclock,
the 11 regions submitted the figures they received from the field to the central committee to
tabulate the returns. The last figures 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, 1973. 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 ratification 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
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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 list of Citizen
Assembly members kept by the barrio, district or ward secretary;
WHEREAS, the said Citizens Assemblies were establish precisely to broaden the base of
citizen participation in the democratic process and to afford ample opportunity for the citizen
to express their views on important national issues;
WHEREAS, responding to the clamor of the people an 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 five 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 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-five (95) percent of the
members of the Barangays (Citizen 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 ratified 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.
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Done in the City of Manila, this 17th day of January, in the year of Our Lord, nineteen hundred
and seventy-three.
The first attempt to question the steps just enumerated taken by the President was in the so-
called Plebiscite Cases, ten in number, which were filed by different petitioners during the
first 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 effect 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 first 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
satisfied with the fate of his urgent motion for early decision of the above ten cases dated
January 12, 1973, filed 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 ratified. 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
_______________
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., L-35948, 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.
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respondents to answer the same the next Wednesday, January 17th, before the hour of the
hearing of the petition which set for 9:30 oclock in the morning of that day. The details what
happened that morning form part of the recital of facts the decision rendered by this Court in
the ten cases on January 22, 1973 and need not be repeated here. Suffice it to state no that
before the hearing could be closed and while Counsel Taada was still insisting on his prayer
for preliminary injunction or restraining order, the Secretary of Justice arrived and personally
handed to the Chief Justice a copy Proclamation 1102 which had been issued at about 11:00
oclock that same morning. In other words, the valiant and persistent efforts 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 filed by
respondents, the Court could already decide on the fundamental issue of the validity
Proclamation 1102, as Justices Zaldivar, Antonio and Esguerra also believed, inasmuch as
Counsel Taadas pleading and argument had anticipated its issuance, but the majority felt
it was not ready to resolve the matter, for lack, according them, of full ventilation, and so, the
decision reserved petitioners the filing of the appropriate cases, evidently, the present
ones.
II
At the threshold, I find 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 respondent Gil J. Puyat and Jose Roy, who
have been sued as President and President Pro Tempore of the Senate, to the effect that
change in the composition of the Supreme Court provided for the 1973 Constitution, from
the 11-man tribunal under the 1935 Constitution to a 15-man Court, makes of these cases
which were filed after January 17, 1973 the date when Proclamation 1102 declared the new
Constitution as ratified, political nature and beyond our jurisdiction. The main consideration
submitted in this connection is that inasmuch as the number votes needed for a decision of
this Court has been increased
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Javellana vs. The Executive Secretary
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
first 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 effect, it would be choosing between two constitutions, which is a political
determination not within the Courts competence.
While I agree that the problem is at first blush rather involved, I do not share the view that
the premises laid down by counsel necessarily preclude this Court from taking a definite
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 fish 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 suffice
to declare Proclamation 1102 ineffective, 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 ratification adopted in
Presidential Decrees 86-A and 86-B and related orders of the President as not being in
conformity with Article
_______________
2 Executive Agreements are not included in the corresponding provision of the 1935
Constitution.
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XV of the old Constitution, a cloud would exist as to efficacy of the dispositive portion of Our
decision dismiss these cases, even if we have it understood that by the vote of justices in
favor of such dismissal, We intended to mean 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, last thing
I should knowingly countenance is uncertainty as to the juridical significance 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 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 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 author to act or that it was ever wanting in
judicial courage to define the same.
Accordingly, with full consciousness of my limitations but compelled by my sense of duty and
propriety to straighten out this grave of issue touching on the capacity in which the Court
acting in these cases, I hold that we have no alternative but adopt in the present situation
the orthodox rule that when validity of an act or law is challenged as being repugnant
constitutional mandate, the same is allowed to have effect until the Supreme Court rules that
it is unconstitutional. Stated differently, We have to proceed on the assumption that the new
Constitution is in force and that We are acting in these cases as the 15-man Supreme Court
provided for there Contrary to counsels contention, there is here no prejudgment for or
against any of the two constitutions. The truth of matter is simply that in the normal and
logical conduct governmental activities, it is neither practical nor wise to defer the course of
any action until after the courts have ascertained
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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 first 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 difficulty 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 affecting 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 officials 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 different 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
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Supreme Court is holding, as it were, their effectivity at bay if it is not being indifferent to or
ignoring them.
It is suggested that the President, being a man of law, 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 necessarily follow that by this attitude of the President, considers the
Supreme Court as still operating under the 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 fixed in
the New Constitution. Not only that, official alter ego, the Secretary of Justice, has been
shoving 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, President has not
countermanded the Secretarys 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 fifteen is,
in my appraisal, of no consequence considering that with the presence of ten justices who
are the Court now, there is a working quorum, and the addition of new justices cannot in
anyway affect the voting on the constitutional questions now before Us because, while there
sufficient justices to declare by their unanimous vote illegality of Proclamation 1102, the
votes of the justices to added would only be committed to upholding the same, since they
cannot by any standard be expected to vote against legality of the very Constitution under
which they would be appointed.
Moreover, what makes the premise of presumptive valid preferable and, even imperative, is
that We are dealing here with a whole constitution that radically modifies or alters only the
form of our government from presidential parliamentary but also other constitutionally
institutions vitally affecting all levels of society. It is, to mind, unrealistic to insist on that,
fundamentally, the 1973 Constitution is the same 1935 Constitution, with a few
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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 different 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 effectivity clauses, involving as they do
the statement of general principles, the citizenship and suffrage qualifications, 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 officers 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 ratification 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 defiance of traditional views and prevailing jurisprudence, to the
effect that the Executives 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-five and all amendments thereto
and (2) its transitory provisions expressly continue the effectivity of existing laws, offices and
courts as well as the tenure of all incumbent officials, not adversely affected by it, which
would
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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 Supreme Court)
may continue in office (under the constitution) until they reach the age of seventy years, etc.
By virtue of the presumptive validity of the new charter, all of form part of the 15-man-Court
provided for therein 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
finally decide that the 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
existence. On the other hand, if it is assumed that We are 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 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 ratification of the 1973 Constitution it purports to declare as having taken place as a
result of the referendum above-referred to is ineffective 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 the Constitution of 1935. More
specifically, they maintain that the word election in the said Article has already acquired a
definite accepted meaning out of the consistent holding in the past of ratification plebiscites,
and accordingly, no other form of ratification can be considered contemplated by the framers
of the Old Constitution than that which had been followed 1935, 1937, 1939, 1940, 1946 and
1967, the last three or four which were held under the supervision of the Commission on
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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 final report to the President, which served as basis for Proclamation
1102, had no official 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 certification through Proclamation 1102 itself that the New
Constitution has been approved by a majority of the people and
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having in mind facts of general knowledge which I have 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 figures referred to in the proclamation may not accurate, but I cannot say in conscience
that all of them are manufactured or prefabricated, simply because I saw with own eyes that
people did actually gather and listen discussions, if brief and inadequate for those who are
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 figure, in my
estimate, could still be significant 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 ratification. I can see that at the outset, when the first 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 official 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 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
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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 superfluous. 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 effect 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 effectivity 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 difference 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,
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he approves the New Constitution, and naturally, affirmative 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 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 ratification plebiscite. The contention has no basis.
In interest of accuracy, the additional answer proposed in pertinent comment reads as
follows: But we do not want 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 most, the intention is no more than a suggestion or a wish.
As regards said comments, it must be considered that a martial law was declared, the
circumstances surrounding making of the Constitution acquired a different 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
situation created by the subversive elements was to introduce immediately effective reforms
calculated to redeem the people from the depth of retrogression and stagnation caused by
rampant graft and corruption in high places, influence peddling, oligarchic political practices,
private armies, anarchy, deteriorating conditions of peace and order, the so inequalities
widening the gap between the rich and the poor, and many other deplorable long standing
maladies crying for early relief and solution. Definitely, as in the case of rebellious movement
that threatened the Quirino Administration, the remedy was far from using bullets alone. If a
constitution was to be approved as an effective 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
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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 officials, 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 different from voting on one, two or three specific 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 specific 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 courts 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
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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 effects 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 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 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 habeas corpus has never produced any chilling effect upon the voters, since it is
known by all that only those who run afoul 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 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 defiance of the respective administrations that
ordered the suspensions.
At this juncture, I think it is fit to make it clear that I am not trying to show that the result of
the referendum may considered as sufficient basis for declaring that the New Constitution
has been ratified in accordance with the amending clause of the 1935 Constitution. I reiterate
that in point of law, I find neither strict nor substantial compliance. The foregoing discussion
is only to counter, if I may, certain impression regarding the general conditions obtaining
during and in relation to the referendum which could have in one way or another affected 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.
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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 effect. In view, however, of the factual background of the cases
at bar which include ratification itself, it is necessary for me to point out that when it comes
to ratification, 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 find out with absolute
precision the veracity of the total number of votes actually cast. After all, the claims that upon
a comparison of conflicting reports, cases of excess votes may be found, even if extrapolated
will not, as far as I can figure out, suffice to overcome the outcome officially 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
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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 official reports submitted to
him in due course of performance of duty of appropriate subordinate officials, elevated them
to the category of an act of a coordinate department of the government which under the
principle 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 difficulty of an accurate checking of all the figures, 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 officially declared. At this point, I would venture to
express the feeling that if it were not generally conceded that there has been sufficient
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 magnificent
manifestations of loyalty and devotion to principles, I cannot accord to the filing 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 the Court in Tolentino vs. Comelec,
41 SCRA 702, I made strong and unequivocal pronouncements to the effect 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 reflects 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 different from those in the backdrop
of the Tolentino rulings I have referred to.
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1. Consider that in the present case what is involved is not just an amendment of 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 ratification of a new Constitution. It is
particularly stressed that the Article specifically refers to nothing else but amendments to
this Constitution which if ratified 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 ratified, 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 confined
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 effect to any provision of the
constitution it is to supersede, to use the language precisely of Section 6, Article XVII, the
effectivity 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
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constitution.3 This must be the reason why every constitution has its own effectivity 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 ratification 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 peoples 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 effectivity 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 peoples 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 effort or attempt to convene as they were
supposed to do under the Constitution of 1935 on January 22, 1973 for the
_______________
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 unfinished, 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.
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regular session. It must be assumed that being composed of experienced, knowledgeable
and courageous members, it would not have been difficult 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 efforts 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 officially 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 officers 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 officially 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 fiat 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,
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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
representatives of the people, they have already opted to accept the New Constitution as
the more effective instrument for fulfillment 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 with the least loss of time, towards their
accomplishment, 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 office, 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 signified 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
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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 sufficient ground to hold that, judged by
such intent and, particularly, from the political standpoint, the ratification 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 ratification
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 ratification
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
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consider this view out of respect to the import of Tolentino vs. Comelec, supra, would be well
advised to bear in mind that the case was decided in the context of submission, not
accomplished ratification.
V by the deficiencies of the old order, unless they act in strict conformity therewith. I cannot
The language of the disputed amending clause of the 1935 Constitution should not be
deemed as the be all and end all 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 sacrificed in the pursuit of these
objectives, which constitute the totality of the reasons for national existence. The sacred
liberties and freedom 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 qualified 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 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
peoples own act of ratifying the
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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
believe that any people can be so stifled 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 peoples 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 differences 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.
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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 entail will heal after the
decision herein is promulgated, so that all us Filipinos may forever join hands in the pursuit
of our national destiny.
IN VIEW OF ALL THE FOREGOING, I vote to dismiss these petitions for mandamus and
prohibition without costs.
Makasiar, J., concurring:
Assuming, without conceding, that Article XV of the 1935 Constitution prescribes a
procedure for the ratification 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 link with and strikes at,
because it is decisive of, the validity of ratification and adoption of, as well as acquiescence
of 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 definition of a political question enunciated in Taada, et al. vs. Cuenco, et al. (103 Phil.
1051), aside from the fact the 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 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 defined 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).
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In 1957, Mr. Chief Justice Roberto Concepcion, then Associate Justice, in behalf of the
Court, defined 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 ratification. 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
ratification or adoption even if it deviates from or violates the procedure delineated
therefore by the old Constitution once the new Constitution is ratified, adopted and/or
acquiesced in by the people or ratified even by a body or agency not duly authorized therefor
but is subsequently adopted or recognized by the people and by the other official organs and
functionaries of the government established under such a new Constitution, this Court is
precluded from inquiring into the validity of such ratification, adoption or acquiescence and
of the consequent effectivity 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 ratification, adoption and/or
acquiescence by the people cures any infirmity in its submission or any other irregularities
therein which are deemed mandatory before
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submission as they are considered merely directory after such ratification 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 essentials is secured. But they are not themselves the essentials. (Cited
in Larken vs. Gronna, 285 NW 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:
x x x Thus the political departments of the government dealt with the effect of both previous
rejection and attempted withdrawal and determined that both were ineffectual in the
presence of an actual ratification x x x. 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 efficacy of
ratifications 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 ratification by three-fourths of the States
has taken place is conclusive upon the courts. In the exercise of that power, Congress, of
course, is governed by the Constitution. However,
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whether submission, intervening procedure or Congressional determination of ratification
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 officers, citizens and subjects
of...government. Proclamation under authority of Congress that an amendment has been
ratified will carry with it a solemn assurance by the Congress that ratification has taken place
as the Constitution commands. Upon this assurance a proclaimed amendment must be
accepted as a part of the Constitution, leaving to the judiciary its traditional authority of
interpretation. To the extent that the Courts opinion in the present case even impliedly
assumes a power to make judicial interpretation of the exclusive constitutional authority of
Congress over submission and ratification 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 ratification 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 ratification, unlike the present petitions, which
challenge inevitably the validity of the 1973 Constitution after its ratification 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 nullification of
the 1973 Constitution and the government operating thereunder.
It should be stressed that even in the Gonzales case, supra, We held that:
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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 republican state, such as ours
to make, and hence, to amend their own Fundamental Law. Congress may propose
amendments to the same explicitly grants such power. Hence, when exercising the same, it
is said that Senators and Members of the House of Representatives act, not as members,
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 not emanate from the Constitution they are the
very source of all powers of government, including the Constitution itself. (21 SCRA 787)
We did not categorically and entirely overturn the doctrine in Mabanag vs. Lopez Vito (78
Phil. 1) that both the proposal to amend and the ratification 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 ratification satisfied the three fourths vote requirement of the
fundamental law. The force of this precedent has been weakened, however, by Suanes vs.
Chief Accountant of the Senate, Avelino vs. Cuenco, Taada vs. Cuenco and Macias vs.
Commission on Elections. In the first, we held the officers and employees of the Senate
Electoral Tribunal are supervision and control, not of that of the Senate President, 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 nullified 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 first party, as members, for the second party, of the Senate Electoral
Tribunal; and in the fourth, we declared unconstitutional an act of
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Congress purporting to apportion the representative districts for 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 inconsistent with the stand
taken in Mabanag vs. Lopez Vito, the latter should be deemed modified accordingly. (p.
787, emphasis supplied.)
In the Tolentino case, supra, We reiterated the foregoing statements (41 SCRA 703-714).
The inevitable consequence therefore is that the validity of the ratification 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 official 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 ratification
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
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began on April 19, 1775 with the skirmish at Lexington, Massachusetts and ended with the
surrender of General Cornwallis 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 ratified on March 1, 1781 (Encyclopedia Brit., Vol. II,
1966 Ed., p. 525). About six 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 x x x. (Appendix I, Federalist,
Modern Library ed., p. 577, emphasis 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 in every state, and the union
shall be perpetual; nor shall any alterations 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
confirmed by the legislatures of every state. (See the Federalist, Appendix II, Modern Library
Ed., 1937, p. 584; emphasis supplied.)
But the foregoing requirements prescribed by the Articles of Confederation and Perpetual
Union for the alteration for the ratification of the Federal Constitution as drafted by the
Philadelphia Convention were not followed. Fearful the said Federal Constitution would not
be ratified by the legislatures as prescribed, the Philadelphia Convention adopted a
resolution requesting the Congress of the Confederation to pass a resolution providing that
the Constitution should be submitted to elected state conventions and if ratified 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
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constitution to the tender mercies of the legislatures of each and all of the 13 states.
Experience clearly indicated that ratification then would have had the same chance as the
scriptural camel passing through the eye of a needle. It was therefore determined to
recommend to Congress that the new Constitution be submitted to conventions in the several
states especially elected to pass upon it and that, furthermore, the new government should
go into effect if and when it should be ratified by nine of the thirteen states x x x. (The
Federalist, Modern Library Ed., 1937, Introduction by Edward Earle Mead, pp. viii-ix;
emphasis supplied)
Historian Samuel Eliot Morison similarly recounted:
The Convention, anticipating that the influence of many state politicians would be
Antifederalist, provided for ratification 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 effect as soon as nine states ratified. 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 first presidential inauguration. (The Oxford History of the Am.
People, by Samuel Eliot Morison, 1965 ed., p. 312).
And so the American Constitution was ratified 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 suffers from two basic infirmities, 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
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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 ratification of the
American Constitution, nor 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 ratification by the people, but on the fact or fiat or approval
or adoption or acquiescence by the people which fact of ratification or adoption or
acquiescence is all that is essential, the Court cited precisely the case of the irregular revision
and ratification 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.
Pomeroys 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 ratified 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 effect a cure; that the disease
was too deeply seated to be reached 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
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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 final; and no authority
whatsoever, 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
office 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.
xx xx xx xx xx xx xx
xx 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 fiat of the people, can breathe life into a constitution.
xx xx xx xx xx xx
x x x We do not hesitate to say that a court is never justified 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; x x x.
(37 SE 327-328, 329, emphasis 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 of 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 officers 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
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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;
emphasis supplied).
Against the decision in the Wheeler case, supra, confirming the validity of the ratification and
adoption of the American Constitution, in spite of the fact that such ratification was in clear
violation of the prescription on alteration and ratification of the Articles of Confederation and
Perpetual Union, petitioners in G.R. No. L-36165 dismissed this most significant 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
historic 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 genesis of the Federal Constitution, but does not refer to it even
implicitly as 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, x x x. (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
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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 affirm 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 nullified, then there is no valid ratification
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),
affirmed 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 Pacific States Telephone and Telegraph Company vs.
Oregon (223 U.S. 118, 133-151, 56 L.ed. 377-386). Because it reaffirmed the
pronouncements in both Borden and Beckham cases, it is sufficient for us to quote the
decision in Pacific States Telephone and Telegraph Co., supra, penned by Mr. Chief Justice
White, who re-stated:
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 significance
of the
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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 expounded in the leading
and absolutely controlling case Luther v. Borden, 7 How. 1, 12 L.ed. 581.
xx xx xx xx
x x x On this subject it was said (p. 38):
For if this court is authorized to enter upon this inquiry, proposed by the plaintiff, and it
should be decided that the character 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 were nullities; its
taxes wrongfully collected, its salaries and compensations to its officers 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 officers who carried their decisions into operation
answerable as trespassers, if not in some cases as criminals.
xx xx xx xx
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
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 were 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
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placed there and not in the courts.
xx xx xx
x x x 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 effect 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.
xx xx xx xx
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.
xx xx xx xx
As the issues presented, in their very essence, are, and have long since by this Court been,
definitely determined to be political and governmental, and embraced within the scope of 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;
emphasis supplied).
Even a constitutional amendment that is only promulgated by the Constitutional Convention
without authority therefor
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SUPREME COURT REPORTS ANNOTATED
Javellana vs. The Executive Secretary
and without submitting the same to the people for ratification, becomes valid, when
recognized, accepted and acted upon the by Chief of State and 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 Constitution proclaimed in 1902 is
invalid is that it was ordained and promulgated by the convention without being submitted
for ratification or rejection by the people of the commonwealth.
The Constitution of 1902 was ordained and proclaimed by 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 that the convention has been recognized, accepted, and acted upon as the only
valid Constitution of the state by the Governor in swearing fidelity to it and proclaiming it, as
directed thereby; by the Legislature in its formal official 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 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 and by enforcing its provisions; and by the people in their
primary capacity by peacefully accepting it and acquiescing in it, registering as voters under
it to the extent of thousands through 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
satisfied that the Constitution was violated in submitting the proposal. xx xx Substance
more than form must be regarded in considering whether the complete constitutional system
for 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:
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Javellana vs. The Executive Secretary
There may be technical error in the manner in which a proposed amendment is adopted, or
in its advertisement, 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 effective 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 ratification 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
ratification 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, emphasis 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 7-day 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
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Javellana vs. The Executive Secretary
Supreme Court in Barnes, et al. v. Ladner (131) SO 2nd 45 462), where they 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 sufficient 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 would have invalidated the election. (Emphasis supplied; see
also Sylvester vs. Tindall, 8 SO 2nd 892; 154 Fla. 663).
Even prior to the election in November, 1970 of delegates of 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 floor 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 ratified in Sec. 3(2) of Article XVII of the 1973 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
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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 officials
of the Legislative and Executive branches of the government elected and/or appointed under
the 1935 Constitution have either recognized or are now functioning under the 1973
Constitution, aside from the fact of its ratification by the sovereign people through the
Citizens Assemblies. Ninety-five (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 fifteen (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 certification of the Commission on
Elections dated February 19, 1973 (Annex Rejoinder-3 to Consolidated Rejoinder of
petitioners in L-36165). Only the five (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 ratification 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 Nations 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
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Javellana vs. The Executive Secretary
registrars to register 18-year olds and above whether literates or not, who are qualified
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 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
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 offspring 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 character? It is our undoubted duty, if a
statute be unconstitutional to so declare it; also, if a provision of the state constitution be in
conflict with the federal constitution, to hold the former invalid. But this is a very different
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 the 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
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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 officers, 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 difficulty 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 find the court, in effect, making a constitution. This would be arrogating
sovereignty to itself. Perhaps the members of the court might differ 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 differ as to what
amendments are material. If the instrument as ratified 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 fixed by the court would be lacking a
promulgation by the
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Javellana vs. The Executive Secretary
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 power, and the people are dissatisfied, 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, in 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, 543, 14 N.W. Rep.
738, and 15 N.W. Rep. 609; State v. Tuffy, 1 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 crime 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 the 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
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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 affirmed 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 fiat from the sovereign people, to execute the law and administer
the affairs 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 specific
procedure for popular ratification 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 ratification which they themselves define 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 fifty (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.*
_______________
* 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.
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Javellana vs. The Executive Secretary
(Vol. 6, Encyclopedia Brit., 1969 ed., pp. 445 446). It is possible that, were he live today, in
a milieu vastly different 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 Presidents declaration. Such presumption is accorded under the law and jurisprudence
to officials 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 certifications by the Office
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 filed by the
Solicitor General on behalf of the respondents public officers dated March 7, 1973). There is
nothing in the records that contradicts, much less overthrow the results of the referendum as
certified. Much less are We justified 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
have failed to do so.
No member of this Tribunal is justified 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
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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 offered, these sectors of our citizenry, whom
petitioners seem to regard with contempt or decision 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 affirmation 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 qualified to vote. Not all ex-convicts are
banned from voting. Only those who had been sentenced to at least one year imprisonment
are disenfranchised but they recover their right of suffrage 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
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Javellana vs. The Executive Secretary
Constitution was ratified by the overwhelming vote of close to 15 million citizens because
there was no official certification to the results of the same from the Department of Local
Governments. But there was such certification as per Annexes 1 to 1-A to the Notes
submitted by the Solicitor General counsel for respondents public officers. This should
suffice to dispose of this point. Even in the absence of such certification, in much the same
way that in passing law, 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
OGonmore, et al. vs. Hartford, etc., [1931] 282 U.S. 251), it should likewise be presumed
that the President was in possession of the fact upon which Proclamation No. 1102 was
based. This presumption is further strengthened by the fact that the Department of Local
Governments, the Department National Defense and the Philippine Constabulary as well the
Bureau of Posts are all under the President, which offices 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; Villen vs. Secretary of Interior, 67
Phil. 451). To deny the truth or 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 falsification, 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 petitioner all assert the contrary? Is the rule of law they pretend
invoke only valid as long as it favors them?
The presumption of regularity in the performance of official functions is accorded by the law
and jurisprudence to acts of public officers whose category in the official 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 five (5) senators who are petitioners in
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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
sacrifice 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 five (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 effect the reforms, especially for the
benefit of the landless and the laboring class how politics and political bargaining had
stymied the effectuation 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-five (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 effected, 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.
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Now the hopes for the long-awaited reforms to be within a year or to are brighter. It would
seem therefore to 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 justified 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 heed to the principle that the courts are not the fountain 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 affects their very lives. WE cannot determine
what is good for the people or ought to be their fundamental law. WE can only exercise the
power delegated to Us by the sovereign people, to apply and interpret the Constitution and
the laws for the benefit 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 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
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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), briefly 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 first 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. One can
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therefore discern his hostility towards President Lincoln when he decided Ex parte
Merryman, which animosity to say the least does no befit 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 ones 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 effect. 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 Savior
of Verdun; because he held Verdun against the 1916 offensive 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 clarification is offered 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 counsels 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 five (5) senators who are petitioners in L-36165 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., 83 Phil. 17 [1949]), if they believe most vehemently in the justice and
correctness of their position that the 1973 Constitution has not been validly ratified, 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
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credibility, if they proceeded first 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 first demonstrate his own courage. Surely, they will not affirm that the mere filing 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 differ without being difficult; 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 find 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, PEOPLES RATIFICATION, ADOPTION OR
ACQUIESCENCE CREATES STRONG PRESUMPTION OF VALIDITY OF 1973
CONSTITUTION.
As intimated in the aforecited cases, even the courts, which affirm the proposition that the
question as to whether a constitutional amendment or the revised or new Constitution
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has been validly submitted to the people for ratification in accordance with the procedure
prescribed by the existing Constitution, is a justiciable question, accord all presumption of
validity to the constitutional amendment or the revised or new Constitution after the
government officials or the people have adopted or ratified 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 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 our judgment its nullity is manifest
beyond reasonable doubt (1971 case of Moore vs. Shanahan, 486 Pac. 2d 506, 207 Kan.
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, L-24698, 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 the form of the Charter that it proposes. It enjoys the same immunity from
interference or supervision by any of the
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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 fix 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 ratification, 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, 1973, 1975 and 1977) which
provides that the new Constitution shall take effect immediately upon its ratification (Sec. 16,
Article XVII, 1973 Constitution). The fact that Section 2 of the same Article XVIII 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 ratification of the proposed Constitution,
affords 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, ratification 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 effectiveness, possesses the power to call a plebiscite and to
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appropriate funds for the purpose, it inescapably must have the power to delegate the same
to the President, who, in estimation of the Convention can better determine appropriate time
for such a referendum as well as the amount necessary to effect 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 ratification of the proposed new Constitution
such appropriate date as he shall determine and providing for the necessary funds therefor,
xx, after stating in whereas clauses that the 1971 Constitutional Convention expected to accordance with the provisions of the 1971 Revised Election Code. If that were the intention
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 xx xx. (Emphasis 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
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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
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 effect 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 x x x. The use of the term decree is significant
for the basic orders regulating the conduct of all inhabitants are
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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 sufficient 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:
x x x Once this work of drafting has been completed, it could itself direct the submission to
the people for ratification 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
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the holding of an election for that purpose. Nor is the appropriation by him of the amount
necessary to be considered as offensive 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 financially 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., emphasis supplied).
IV
VAGUENESS OR AMBIGUITY DOES NOT INVALIDATE THE 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 affect the validity of the
ratification 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
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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 effects
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
cause to be determined by the judge, or such other responsible officer as may be authorized
by law, after examination under oath or affirmation of the complainant and the witnesses
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 effective even after lifting of martial law or the ratification of this
Constitution, unless modified, revoked, or superseded by subsequent proclamations, orders,
decrees, instructions, or other acts of the incumbent President, or unless expressly and
explicitly modified or repealed by the regular National Assembly.
xx xx xx xx xx
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
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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, L-35961,
L-35965, & L-35979), Chief Justice Roberto Concepcion, concurred in by Justices Fernando,
Barredo, Antonio and the writer, overruled this objection, thus:
x x x 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 deemed fit
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 ratification, as provided in Section 1 of Article XV of the 1935 Constitution. (pp. 17-
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 x x x; because the same will be submitted to the people for
ratification. Once ratified 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: xx xx it seems to me a sufficient
answer that once convened, the area open for deliberation to a constitutional convention xx
xx, is practically limitless (citing
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Cf. Koehler vs. Hill, 14 NW 738, 60 Iowa 543 [1883]; Hatch 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 officially 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 Annex M is the Filipino version of the 1973 Constitution, like the English
version, contains the certification by President Diosdado Macapagal of the Constitutional
Convention, duly attested by its Secretary, that the proposed Constitution, approved on
second reading on the 27th day of November, 1972 and on third reading in the Conventions
291st plenary session on November 29, 1972 and accordingly signed on November 1972 by
the delegates whose signatures are thereunder affixed. It should be recalled that
Constitutional Convention President Diosdado Macapagal was, as President of the Republic
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?
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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 ratification by the qualified electors
defined 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 ratification, which imposition by the Court is never justified (Wheeler vs. Board of
Trustees, supra).
In effect, 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,
nullifies the proposed amendment or the new Constitution, the procedure prescribed by the
state Constitution is so detailed that it specifies that the submission should be at a general
or special election, or at the election for members of the State
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legislature only or of all state officials only or of local officials only, or of both state and local
officials; fixes the date of the election or plebiscite limits the submission to only electors or
qualified electors; prescribes the publication of the proposed amendment or a new
Constitution for a specific period prior to the election or plebiscite; and designates the officer
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-fifths 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-fifths of all the members elected that house shall vote in
favor of the proposed amendments, the legislature shall order an election by the qualified
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 final 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
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appointed an election shall be held for the vote of the qualified electors of the state upon the
proposed amendments. If such election be held on the day of the general election, the
officers of such general election shall open a poll for the vote of the qualified electors upon
the proposed amendments; if it be held on a day other than that of a general election, officers
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
qualified 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 affirmative vote of a majority of all the
qualified 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
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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 be 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; governors
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 fifths 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
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election, at which the proposed amendment or amendments shall be submitted, in a form to
be prescribed by the General Assembly, to the qualified 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 henceforth said amendment or amendments shall be part of the said Constitution. 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 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 official 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 fifteen 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 effect 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 specific procedure, much less a
detailed procedure for submission or ratification. As heretofore stated, it does not
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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
ratification to the qualified electors as defined in Article V of the 1935 Constitution. Much less
does it require the publication of the proposed Constitution for any specific 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 ratification. 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 ratified 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
that National Assembly proposed only about five (5) years later on April 11, 1940, ratified
by the people on June 18, 1940 as approved by the President of the United States on
December 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 ratified 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 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 Election 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 womans suffrage, the
1939 amendment to the Ordinance appended to the 1935 Constitution (Tydings-
Kocialkowski Act of the U.S. Congress) and the three
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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 (ratified
on June 18, 1940). The supervision of said plebiscites by the then Department of Interior
was not automatic, 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 ratification 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 qualified 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 ratification to the qualified electors as
defined 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
qualified 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 refer, 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 all 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.
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When the 1935 Constitution wants to limit action or the exercise of a right to the electorate,
it does so expressly as 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 qualified
electors of the Philippines as may provided by law. Section 5 of the same Article VI
specifically provides that congressmen shall be elected by the qualified electors. The only
provision that seems to sustain the theory of petitioners that the term people in Article XV
should refer to the qualified electors as defined 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 explicit provisions of Sections 2 and 5 of Article VI, which
specifically 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, specifically
delineate in detail procedure of ratification of amendments to or revision of said Constitutions
and expressly require ratification by qualified electors, not by the generic term people.
The proposal submitted to the Ozamis Committee on the Amending Process of the 1934-35
Constitutional Convention satisfied that the amendment shall be submitted to qualified
election for ratification. This proposal was not accepted indicating that the 1934-35
Constitutional Convention did intend to limit the term people in Article XV of the 1935
Constitution to qualified electors only. As above demonstrated, the 1934-35 Constitutional
Convention limits the use of the term qualified electors to elections of public officials. It did
not want to tie the hands of succeeding 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 1935 Constitution on constitutional
amendment contemplates the automatic applicability of election laws to plebiscites on
proposed constitutional amendments or revision.
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The very phraseology of the specific 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 womans suffrage
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
womans suffrage xx and that said amendment shall be published in the Official Gazette in
English and Spanish for three consecutive issues at least fifteen (15) days prior to said
election, xx and shall be posted in a conspicuous place in its municipal and provincial office
building and in its polling place not later than April 22, 1937 (Sec. 12, Com. Act No. 34),
specifies that the provisions of the Election Law regarding, the holding of a special election,
insofar as said provisions are not in conflict 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. 73 calling for the plebiscite on the constitutional amendments in
1939, 1940 and 1946, including the amendment creating the Commission on Elections,
specifically 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
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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
following election of local officials, (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 elections; that copies thereof shall be posted not
later than October 20, 1939 (Sec. 2, Com. Act 492); that the election shall be
conducted according to provisions of the Election Code insofar as the same may be
applicable; that within thirty (30) days after the election, 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. 517, consisting of 11 sections, was approved on April 25, 1940 and
provided, among others: that the plebiscite on the constitutional amendments providing
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 Official Gazette in
English and Spanish at least 20 days prior to the election and posted in every local
government office 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); that the National Assembly shall canvass
the returns to certify the results at a special session to be called by President (Sec. 8).
Republic Act No. 73 approved on October 21, 1946 calling for a plebiscite on the parity
amendment consists of 8 sections 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
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consecutive issues of the Official 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, 8 days or 30 days.
Republic Acts Nos. 180 and 6388 likewise expressly provide that the Election Code shall
apply to plebiscites (See. 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 qualified 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.
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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
council concerning the activities and finances 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 sufficient. 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 officer at all meetings of the barrio assembly. The barrio secretary or in his
absence, any member designated by the presiding officer to act as secretary shall discharge
the duties of secretary of the barrio assembly.
For the purpose of conducting business and taking any official action in the barrio assembly,
it is necessary that at least one-fifth 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
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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 hear 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 qualified 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.
xx xx xx xx xx
Sec. 10. Qualifications 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.
The following persons shall not be qualified to vote:
a. Any person who has been sentenced by final judgment to suffer one year or more of
imprisonment, within two years
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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 a budgetary,
supplemental appropriation, or special 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 officials, 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 disqualified, 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 x x x 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 and above and who
possess all other qualifications 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 qualifications 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
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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-year olds as qualified 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 ratified 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 certification 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 certification by the said Department Secretary should likewise be presumed; because it
was done in the regular performance of his official 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 certification by the Department Secretary and the
Chief
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Executive on the results of the referendum, is further strengthened by the affidavits and
certifications of Governor Isidro Rodriguez of Rizal, Mayor Norberto S. Amoranto of Quezon
City and Councilor Eduardo T. Parades of Quezon City.
The procedure for the ratification of the 1937 amendment on woman suffrage, the 1939
amendment to the ordinance appended to the 1935 Constitution, the 1940 amendments
establishing the bicameral Congress, 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 suffrage and as a
constituent assembly in all the other amendments aforementioned and therefore as such,
Congress 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 certification 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 affirmative 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 certification 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 certification of Governor Isidro Rodriguez of Rizal, shows only 614,157
Yes votes against 292,530 No votes. In Cavite province, there were
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249,882 Yes votes against 12,269 No votes as disclosed in Annex 1-A of respondents
Compliance (the certification by the Department of Local Government and Community
Development), while the alleged certification 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 certification by Governor Lino Bocalan of Cavite, is not true; because in his duly
acknowledged certification 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 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 affidavit 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 in any 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 certificate of results on the
referendum in Pasay City to the Office of the President (Annex 5-Rejoinder of Sol. Gen.
dated March 20, 1973).
Pablo F. Samonte, Assistant City Treasurer and Officer in Charge of Pasay City also issued
an affidavit dated March 15, 1973 stating that a certain Atty. Delia Sutton of the Salonga Law
Office asked him for the results of the referendum; that he
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informed her that he had in his possession unsigned copies of such results which may not
be considered official 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 official,
she requested him if she could give her the unofficial 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 notified 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 Ratification and
Coordinating Council, certified 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 different
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 certification 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 figures 614,157 and 292,530 mentioned in said letter were based on
the certificates of results in his possession as of January 14, 1973, which results were made
the
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basis of the computation of the percentage of voting trend in the province; that his letter was
never intended to show the final 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 certificates 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 certificate 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 figures showing the results of the referendum of the Citizens
Assemblies in those areas; and that the said letters were not received by her office 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 certificates 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 certified by the Department of Local Government and
Community Development, on the other, to the effect that even assuming the correctness of
the figures
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insisted on by counsel for petitioners in L-36165, if they 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 figures contained
in the certification of the Secretary of the Department of Local Government and Community
Development and the figures 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 the plebiscite to be held later than those against, only serve 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 Camarines
Sur to Rejoinder of Petitioners in L-36165). If there was no such freedom of choice, those
who wanted a plebiscite would not outnumber those against holding such plebiscite.
The letter of Governor Felix O. Alfelor, Sr. dated January 1973 confirms 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 orderly conduct
and favorable results of the referendum were due not only to the coordinated efforts 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.
(Annex-Bataan to Rejoinder of Petitioners in L-36165).
As heretofore stated, it is not necessary that voters ratifying
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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 qualified 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 confirm 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 Office 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 qualified
statistician, which all the more impairs his
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credibility. Director Tito A. Mijares of the Bureau of Census and Statistics, in his letter dated
March 16, 1973 address 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 1) all qualified 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 qualified 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 Citizens Assembly.
2) The official population projection of this office (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 difference 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 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
unqualified/disqualified to vote will be more than 10,548,197 and hence the difference or
implied number of registered voters that participated will be less than 6,153,618.
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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 official 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
difference 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 qualified 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 justification 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 qualified 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
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necessarily inconsistent with freedom of choice, because the people fear to disagree with
the President and 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 ordinarily engenders fear in the individual which
persuades the individual to comply with or obey the law. But before martial law was
proclaimed, many individuals fear such sanctions of the law because of lack of effective
equal enforcement or implementation thereof in brief, compartmentalized justice and
extraneous pressures and influences frustrated the firm 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 infliction 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 affects 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 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 officers, 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 officials. Partisanship based on party or
personal loyalties
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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 officers 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 affirm 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 officers of the Department
of Education campaigned for the ratification of the new Constitution.
Not one of the petitioners can say that the common man farmer, laborer, fisherman, 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 sufficient 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
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Constitutional Convention convened in June, 1971, specific 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 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 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 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 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 Mansfield, 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 nations
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difficulties land tenancy, official 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 re-assured by recent
developments xx. (Emphasis 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 hereinbefore stated, that all these reforms were the subject of discussion both in the
committee hearings and on the floor 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 officers that under
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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.
x x x 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. Styver (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 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 effort 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 the technical state of war continues. This includes the period of an armistice, or military
occupation, up to the effective date of 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 unfinished 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
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concurring opinion in Duncan vs. Kahanamoku (327 U.S. 304 [1946]), he defined 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 definition of martial
law that even in places where the courts can function, such operation of the courts may be
affected by martial law should their functioning x x x threaten the public safety. It is possible
that the courts, in asserting their authority to pass upon questions which may adversely affect
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 offices 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
threatens to bring the nations economy in ruins. The government meets the crisis by
assuming more powers and respecting fewer rights. The result is a regime which can act
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arbitrarily and even dictatorially in the swift adoption of measures designed to save the state
and its people from the destructive effects 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 cannot 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 effect. 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
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dictator he had a moral right to take this radical action. Nevertheless, it is imperative that any
action with such lasting effects 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 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 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 justified 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 effectuation 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
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Javellana vs. The Executive Secretary
people against open rebellion, insidious subversion secession. 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 effect 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 a Maoist 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 constitutions 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 finality nor the imprisonment of the past, but the enfolding 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 efficacy 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. 19-21). 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
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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; emphasis 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 Bickels Opus, supra; italics supplied).
The eternal paradox in this finite 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
modified to suit 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 pontifical
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
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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 conflict 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 affect 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 effectively 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 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 Jefferson, one of the founding fathers of the
American Constitution and former President of the United States, who personifies the
progressive liberal, spoke the truth when he said that some men ascribe men of the
preceding age a wisdom more than human, and suppose what they did to be beyond
amendment. xx xx 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
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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
Britanica, 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 ambience, charged
as it is with so much tension and emotion, if not partisan passion. The analytical, objective
historians will write the final 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 Pacific 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 (filed 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, 18-65 (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
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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 fails, 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 sufficient 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
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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 different date is fixed by law, or
on special session called by the President. As former Senator Arturo Tolentino, counsel for
respondents Puyat and Roy in L-36165, stated, the duty to convene is addressed to all
members of Congress, not merely to its presiding officers. 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.
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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 specifically pray for a declaration that the alleged
ratification 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 final 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.
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X
ARTICLE OF FAITH
WE yield to no man as devotees of human rights and civil liberties. Like Thomas Jefferson,
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 first 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
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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 offered 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 avert 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 effecting 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 tigers 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
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beheaded or hanged or guillotined by the very people whom they at first 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 Officers 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 ratification 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
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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, ratified 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 affirmative, 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,
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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 be 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 led 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 seek to set at naught Proclamation No. 1102 and Presidential Decrees Nos. 86
and 86-A, claiming that the ratification of the new Constitution pursuant to the said decrees
is invalid and of no effect. Presidential Decree No. 86 organized the barangays or Citizens
Assemblies composed of all citizens at least fifteen years of age, and through these
assemblies the proposed 1972 Constitution was submitted to the people for ratification.
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 ratification 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 ratification 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
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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 effort on their parts to assert their offices 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; the appointments of key executive officers 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 offices 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 x x x 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 finds 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 ratified, 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
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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 flying in the face of reason and pounding ones bare head against a veritable stone
wall or a heavily reinforced concrete, or simply kicking the deadly pricks with ones bare
foot in an effort to eliminate the lethal points.
When a Constitution has been in operation for sometime, even without popular ratification at
that, submission of the people thereto by the organization of the government provided therein
and observance of its prescriptions by public officers 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:
x x x 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
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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 properly
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; therefore, if a state court should enter upon such
an inquiry, 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 affirm 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 appointing judges to expound and administer them. The
acceptance of the judicial office is a recognition of the authority of government from which it
is derived. And if the authority of the government is annulled and overthrown, the power of
its courts and other officers is annulled with it. And if a State court should enter upon the
inquiry proposed in this case, and should come to 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 affirms 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
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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 fit 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 co-equal 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
embarrassment 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 Courts authority possessed neither of the purse nor the sword ultimately rests on or not the proposed Constitution had been validly ratified. The
sustained public confidence in its moral sanction. Such feeling must be nourished by the
Courts 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)
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The people have accepted and submitted to a Constitution to replace the 1935 Constitution.
The new organic law is now in the plenitude of its efficacy 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 super-board of canvassers and sow confusion and
discord among our people by pontificating there was no valid ratification of the new
Constitution. The sober realization of its proper role and delicate function and its
consciousness of the limitations on its competence, especially 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 effort to capture the intoxicating applause
of the multitude.
For all the foregoing, I vote to dismiss all petitions.
ZALDIVAR, J., concurring and dissenting:
In these five cases, the main issue to be resolved by 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
_______________
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., Sedfrey A.
Ordoez, et al. v. The National Treasurer of 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 Elections, et al., L-35979.
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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
ratified. 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 ratified 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 by 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 officer
under a constitutional government must act according to law and subject to its restrictions,
and every departure therefrom, or disregard
_______________
2 See Taada, et al. v. Cuenco, L-10520, Feb. 28, 1957; Baker v. Carr, 369 U.S. 186 (1962).
3 See 16 Am. Jur. 2d. p. 468, Note 14, and cases cited therein.
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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 judiciary is the department which is charged with the special
duty of determining the limitations which the law places upon all official 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 affecting another department is when such political question involves an
issue as to the construction and interpretation of the provision 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 ratification of any change in the Constitution.
Ratification or non-ratification 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 ratified in accordance with the
_______________
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.
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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 ratified, I am reproducing herein pertinent portions of my
dissenting opinion in the plebiscite cases:
The ratification 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 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 ratification pursuant to Article XV of the Constitution.
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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 the ratification as provided in the Constitution.
This Court, in the case of Tolentino vs. Commission 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 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 first Constitution of an entirely new government born of either a
war of liberation from a mother country or of revolution against an existing government or of
a bloodless seizure of power a la coup detat. As to such kind of conventions, it is absolutely
true that the convention is completely without restraint and omnipotent all wise, and it 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 x x x.
x x x
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 officers 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
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President of the Philippines certified 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 unequivocally
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 qualified and registered voters of the country would cast their
votes, where official 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
different 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 ratified; on April
30, 1937, when the amendment to the Constitution providing for Womens Suffrage was
ratified; on June 18, 1940, when the 1940 Amendments to the Constitution were ratified; on
March 11, 1947 when the Parity Amendment to the Constitution was ratified; 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.
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It is my view that the President of the Philippines cannot by decree order the ratification of
the proposed 1972 Constitution thru a voting in the barangays and make said result the basis
for proclaiming the ratification 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 X 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 affirmative 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. (Leffel 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 qualified voters or electors pass on various public
matters submitted to them the election of officers, national, state, county, township the
passing on various other questions submitted for their determination. (29 C.J.S. 13, citing
Iowa-Illinois 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
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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 III.
App. 63; Rothfels v. Southworth, 356 P. 2d 612, 11 Utah 2d 169 in 29 C.J.S. 38). (Emphasis
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 officers 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 qualified 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 first applying for cancellation
of his previous registration. (Italics supplied). (Please see also Sections 100-102, Election
Code of 1971, R.A. 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 I 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 ratified 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 ratified or not, must not be
decided by simply gathering people and asking
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them to raise their hands in answer to the question of whether the vote for or against a
proposed Constitution. The election 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 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 adoption
of a constitution or in the ratification of an amendment to the Constitution.
The following citations are, to me, very relevant in the effort 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 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 a vote, the determination of it rests with those who, by
existing constitution, are accorded the right of suffrage. But the qualified 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
political sense of the term, but by the general body of the populace, the movement would be
extra-legal. (Blacks 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 on certain subjects, and the people of each State
created a State government, to exercise the remaining powers of sovereignty so
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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 official agencies, but their own hands as
well; and neither the officers of the State, nor the whole people as an aggregate body, are
at liberty to take action in opposition to this fundamental law. (Cooleys 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 effect, 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 an 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 sufficient 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 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
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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 government affairs of the State will result from the
Courts 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 joint resolution to
observe, follow and obey the plain essential provisions of the Constitution. Furthermore, to
say that, 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 Constitution, those who would thereafter desire to violate it
disregard its clear mandatory provisions would resort to the scheme of involving and
confusing the affairs of the State 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
effective. (Graham v. Jones, 3 So. 2d. 761, 793-794).
In our jurisprudence I find 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 office of
Municipal Mayor of Miagao, Iloilo, in the elections of November 11, 1947. Monsale had duly
filed his certificate of candidacy before the expiration of the period for the filing of the same.
However, on October 10, 1947, after the period for the filing of the certificate of candidacy,
Monsale withdrew his certificate of candidacy. But on November 7, 1947 Monsale attempted
to revive his certificate of candidacy by withdrawing the withdrawal of certificate of candidacy.
The Commission on Elections, 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 certificate of
candidacy. On the other hand, the boards of inspectors credited Nico
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with 2,291 votes, and Nico was proclaimed elected. Monsale filed 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 certificate of candidacy, his attempt to revive it by withdrawing his withdrawal
of his certificate of candidacy did not restore the effectiveness of his certificate 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 effect, 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 ratification
of the amendment to the Constitution, the affirmative votes cast in those assemblies can not
be made the basis for declaring the ratification 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 mast be 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 to 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 my order of December 17, 1972 temporarily suspending the effects of Proclamation
No. 1081 for the purpose of free and open debate on the proposed constitution, be
suspended in the meantime. It is,
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therefore, my view that voting in the barangays on January 10, 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 proclamation of the ratification of the proposed Constitution.
It is my view, therefore, that Proclamation No. 1102 repugnant to the 1935 Constitution, and
so it is invalid, and should not be given effect. The Constitution of 1972 proposed by the
1971 Constitutional Convention should be considered as not yet ratified 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
recognition of the democratic postulate that sovereign resides in the people. It is not
disputed that in a democratic 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 office 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 Vice-President 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,
_______________
8 Cooley, Constitutional Limitation, 8th Ed., Vol. I, p. 82.
9 39 Phil. 258, 268.
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represent the sovereign power of the State. Their sovereign authority is expressed through
the ballot, of the qualified voters, in duly appointed elections held from time to time, by means
of which they choose their officials for definite fixed 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, suffrage, 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 receptacle 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 suffrage to be
availed of by those possessing certain prescribed qualifications. 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 exclusively for the benefit of the
citizen or class of citizens professing it, but in good faith and with an intelligent zeal for the
general benefit 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 qualified 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
_______________
10 69 Phil. 199, 204.
11 70 Phil. 28, 31.
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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-McDuffie 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 certified that the constitution conforms
with the provisions of this act, it shall be submitted to the people of the Philippine Islands for
their ratification or rejection at an election to he held within months after the date of such
certification, on a date to be fixed by the Philippine Legislature at which election, the qualified
voters of the Philippine Islands shall have an opportunity to vote directly or against the
proposed constitution and ordinances append thereto. Such election shall be held in such
manner as may prescribed by the Philippine Legislature to which the return of the election
shall be made. The Philippine Legislature shall certify the result to the Governor-General of
the Philippine Islands, together with a statement of the votes cast, and a copy of said
constitution 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 certification from the
Philippine Legislature, issue a proclamation for the election of officers 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 I 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
officials prior to the drafting of the 1935 Constitution, and also the election mentioned in the
Independence Act at which the qualified 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.
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It is clear therefore, that the ratification or any amendment to the 1935 Constitution could
only be done by holding an election, as the term election was understood, and practiced,
when the 1935 Constitution as drafted. The alleged referendum in the citizens assemblies
participated in by persons aged 15 years or more, regardless of whether they were
qualified 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.
It is further contended by the Solicitor General, that even if the Constitution proposed by the
1971 Constitutional Convention was not ratified 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
ratified 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 effect the
people have accepted the new Constitution. What appears to me, however, is that practically
it is only the officials 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
effect, and his office had taken the steps to implement the provisions of the new Constitution.
True it is, that some 92 members of the
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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
them took his oath of office; 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 office. The fact
that only one Senator out of 24, and only 22 Representative out of 110, took their oath of
office, is an indication that only a small portion of the members of Congress had manifested
the acceptance of the new Constitution. It is in the taking of the oath of office where the
affiant says that he swears to support and defend the Constitution that the acceptance of
the Constitution is made manifest. I agree with counsel petitioners in L-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 only ex abundante cautela, or by way of
a precaution, making sure, that in the event the new Constitution becomes definitely effective
and the interim National Assembly convened, they can participate in legislative work in the
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 day from
January 17, 1973, the date when Proclamation No. 110 was issued. Of course, if the
proposed Constitution does not become effective, 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
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affirmative 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 effect. 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 ratified 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 effect. 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 ratified and
has come into effect. It being my considered view that the ratification of
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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 effect. Their proposed
Constitution, therefore, should be considered as not yet validly ratified, 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 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
their ratification 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 democratic and constitutional system in our country. I feel that if this Court
would give its imprimatur to the ratification of the proposed Constitution, as announced in
Proclamation
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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
the 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 efforts to prevent the happening of such a situation in the future.
It appearing to me that the announced ratification 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 office 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.
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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 give due
course to the petitions in these cases.
FERNANDO, J., dissenting:
No question more momentous, none impressed with such transcendental significance is
likely to confront this Court in the near or distant future as that posed by these petitions. For
while the specific 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
ratification. It could very well be though that the ultimate outcome is not confined 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 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
_______________
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 ratification. Art. XV, Section 1.
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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 configuration
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 Black5 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 affirming constitutional
supremacy, the political departments could seek the aid of the judiciary. For
_______________
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).
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the assent it gives to what has been done conduces to its support in a regime where the rule
of law holds sway. In discharging such a role, this Court must necessarily take in 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
suffering 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 suffice 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, such
factors, however, I cannot, for reasons to be set more lengthily 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 firm conviction that the institution of judicial review speaks too clearly for
the point to be missed that official 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 the
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 effectivity of an
amendment but the actual coming into effect of a new constitution, the matter is not
justiciable. The immediate reaction is that such a contention is
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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 Tolentino9 and Planas10 cases speak
unequivocally to that effect. Nor is it a valid objection to this conclusion that what was
involved in those cases was the legality of the submission and not ratification, for from the
very language of the controlling article, the two vital steps are proposal and ratification, 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 justification for considering the rest as devoid of that character. It would be for me then
an indefensible retreat, deriving no justification 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
_______________
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.
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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 full discretionary authority
is vested either in the President or Congress. It is thus beyond the competence of the
judiciary to pass upon. Unless clearly falling within the 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 affected, 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 filed only after each coordinate branch has acted. Even
when the Presidency or Congress possesses plenary powers, its improvident exercise or the
abuse thereof, if shown, may give rise to a justiciable controversy. For the constitutional grant
of authority is 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 field of judicial non-enforceability 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 field of public or governmental interests.16
Nor was Professor Westons formulation any
_______________
14 Ibid., 504-505.
15 Dodd, Judicially Nonenforceable Provisions of Constitutions, in I Selected Essays on
Constitutional Law 355, 387 (1938).
16 Ibid., 395.
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different. 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 Bickel18 of Yale and Professor Freund19 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 confidence 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
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17 Weston, Political Questions, I Selected Essays an 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.
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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
Justice Laurel in an early landmark case, People v. Vera,21 decided in 1937: If it is ever
necessary for us to make vehement affirmance during this formative period of 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, indifferent 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 impartiality was not mere
rhetoric. That is a matter more appropriately left to others to determine. It suffices to stake
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 cliffs of perfection. This is
not to say though that it is satisfied 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 made that for all its care and circumspection this Court manned by human
beings fettered by fallibility, 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 fidelity to constitutional requirements. Such is the teaching of
a host of cases from
_______________
21 65 Phil. 56 (1937).
22 Ibid., 96.
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Angara v. Electoral Commission23 to Planas v. Commission on Elections.24 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 off, 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 case of conflicting action by different 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:
_______________
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.
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Whether another method of enforcing the Constitution could have been devised, the short
answer is that no such method 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 stultification for it to
evade. 28 Nor is it only Dean Rostow who could point Frankfurter, 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 importance from Professor Mason: In Stein v. New
YorkFrankfurter 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 characterization of judicial review as undemocratic. Thus 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 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 checks. 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 difficulty lies
in
_______________
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).
319
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Javellana vs. The Executive Secretary
this: you must first 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 flowering 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 fitness of such competence being vested in judges and of their
being called upon to fulfill 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 ones predilection, on Marshalls
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 of
_______________
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).
320
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SUPREME COURT REPORTS ANNOTATED
Javellana vs. The Executive Secretary
thought, this meaningful query: The Constitution nowhere provides that it shall be what the
judges say it is. How, did it come about that the statement not only could be but could become
current as the most understandable 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
ones 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 reflected 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. Green39 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 qualifications
_______________
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. (1964); Wright v. Rockefeller,
376 US 52, 11 L ed 2d 512, 84 S Ct (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. (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, 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
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Javellana vs. The Executive Secretary
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 field 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
_______________
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.
322
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SUPREME COURT REPORTS ANNOTATED
Javellana vs. The Executive Secretary
review articles, the reaction ranging from guarded conformity to caustic criticism.46 There
was, to be sure, no clear call to a court in effect 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 factors,
it nevertheless seems to me that the doctrine of political questions ought to be very sharply
confined to where the functional reasons justify it and that in a give 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 fine 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 difficult for me at least, not to be swayed by appraisal, coming from such impeccable
sources of the worth and significance 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
_______________
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 Reflections 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 Harts 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 art 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, 27U. 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
Domination and Judicial Integrity: A Reply to Professor Wechsler, 108 U. Pa. L. Rev. 1
(1959).
47 Cahn, Supreme Court and Supreme Law, 40 (1954).
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Javellana vs. The Executive Secretary
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 ratification. The crucial point that had to
be met is whether Proclamation No. 1102 manifests fidelity to the explicit terms of Article XV.
There is, of course, the view not offensive 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
_______________
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, 2D 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
324
324
SUPREME COURT REPORTS ANNOTATED
Javellana vs. The Executive Secretary
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 fulfilled. No evasion is 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 conclusive effect attached to the electorate manifesting
its will to vote affirmatively on the amendments proposed poses an obstacle to the judiciary
being insistent on the utmost regularity. Briefly stated, substantial compliance is enough. A
great many American State decisions may be cited in support of such a doctrine.50
_______________
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 (1923);
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 So. 718 (1927); Duncan v. Record Pub. Co., 145 SC 196, 143 SE
31 (1928); Lane v. Lukens, 48 Idaho 517, 283 P. 532 (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);
Palmer v. Dunn, 216 SC 558, 59 SE 158 (1950).
50 Cf. Wells v. Bain, 75 Pa. St. 39, 15 Am. Rep. 563 (1874); 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,
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Javellana vs. The Executive Secretary
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 first
Commonwealth Act,51 submitting to the Filipino people for approval or disapproval certain
amendments to the original
_______________
39 So. 412 (1905); State v. Winnett, 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. Gifford, 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. 235, 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 Teachers Assn. 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).
326
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SUPREME COURT REPORTS ANNOTATED
Javellana vs. The Executive Secretary
ordinance appended to the 1935 Constitution, it was made 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 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 Act58 which specifically 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 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
_______________
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 fifty-seven, otherwise known as the Election Code, and
Commonwealth Numbered Six hundred and fifty-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
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Javellana vs. The Executive Secretary
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 ratification. On
two vital points, who can vote and how they register their will, Article XV had been given a
definitive construction. That is why I fail to see sufficient justification for this Court affixing the
imprimatur of its approval on the mode employed for the ratification 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 ratification 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 effect. 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
_______________
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. Sovereignty
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).
328
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SUPREME COURT REPORTS ANNOTATED
Javellana vs. The Executive Secretary
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 is not the case, however, once it is
manifested, it is to be accepted as final and authoritative. The government which is merely
an agency to register its commands has no choice but to submit. Its officials must act
accordingly. No agency is exempt such a duty, not even this Court. In that sense, the lack of
regularity in the method employed to register its wishes is fatal in its consequences. Once
the fact of acceptance by 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 significance. 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 vote of
the state and ratified 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 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. When the convention
reassembled, the delegates made numerous changes in instrument. As thus amended, it
was promulgated by the convention of September 28, 1891, as the new constitution. An
_______________
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.
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Javellana vs. The Executive Secretary
action was brought to challenge its validity. It failed in the lower court. In affirming 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
offspring 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 reclaimed in 1902 is invalid as it was ordained
and promulgated by the convention without being submitted for ratification 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 fidelity to it and proclaiming it, as
directed thereby; by the Legislature in its formal official 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
_______________
67 Ibid., 523.
68 101 Va. 829, 44 SE 754.
330
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SUPREME COURT REPORTS ANNOTATED
Javellana vs. The Executive Secretary
Constitution of Virginia; by the individual oaths of members to support it, and by enforcing its
provisions; and 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. The Constitution having been thus acknowledged and
accepted by the office 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 difficulty in holding that the Constitution in question, which went into
effect 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 fifteen 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 such circumstances being conceded, then no justifiable question
may be raised. This Court is to respect what had thus received the peoples sanction. That
is not for me though 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
_______________
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).
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no more than what the courts do in election cases. There are other factors to bear in mind.
The fact that the President so certified is well-nigh conclusive. There is in addition the
evidence flowing 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 officials under the 1935 Constitution, including practically all
Representatives and a majority of the Senators, have signified their assent to it. The thought
persists, however, that as yet sufficient 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
different 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 final
analysis the state exists for the individuals who in their collectivity compose it. Whatever be
their views, they are entitled to respect. It is difficult for me, however, at this stage to feel
secure in the conviction that they did utilize the occasion afforded 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 find myself unable to join the ranks of my
esteemed brethren who vote for the dismissal of these petitions. I cannot yield an affirmative
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
332

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Javellana vs. The Executive Secretary
considerations that exert a compulsion not easy to resist. It can be asserted with truth,
especially in the field 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 commander-in-chief with all the constitutional powers it implies.
Public officials can go about their accustomed tasks in accordance with the revised
Constitution. They can pursue even the tenor of their ways. They are free to act according
to its tenets. That was so these past few weeks, even petitions were filed. 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 petitions should prevail? What then? Even so, the decision of this Court
need not be executory right away. Such a disposition of a case 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.
_______________
70 Araneta v. Dinglasan, 84 Phil. 368 (1949).
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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 affairs, be no more than gossamer distinctions
and sterile refinements unrelated to events. That may be so, but I find 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 field of discretion that
remains.71 Moreover what made it difficult 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 effect immediately upon ratification. 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 sufficient justification 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.
_______________
71 Cardozo, The Nature of the Judicial Process, 141 (1921).
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Javellana vs. The Executive Secretary
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 Courts
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 ratified 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 specifically, the issue submitted is whether the purported ratification 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 ratification 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
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-five and all amendments thereto.2
Respondents contend that (A)lthough apparently what is
_______________
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.
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Javellana vs. The Executive Secretary
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. x x x 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 ratification, whatever defects there might have been in the procedure are overcome
and mooted (and muted) by the fact of ratification; and
(A)ssuming finally that Article XV of the 1935 Constitution was not strictly followed, the
ratification 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 x x x.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
_______________
3 All quotations from respondents memo of arguments dated March 2, 1973, pp. 2-5; italics
supplied.
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SUPREME COURT REPORTS ANNOTATED
Javellana vs. The Executive Secretary
Constitution has been ratified and has come into force.4
The measure of the fact of ratification is Article XV of the 1935 Constitution. This has been
consistently held by the Court in the Gonzales5 and Tolentino6 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 ratified in only one way, that is, in an election or plebiscite held in
accordance with law and participated in only by qualified and duly registered voters9 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 ratification 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 be invalidating the proposed new Constitution but would be simply
declaring that the announced fact of ratification thereof by means of the Citizens Assemblies
_______________
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 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.
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Javellana vs. The Executive Secretary
referendums does 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 ratification, they cannot assume the very fact to be
established and beg the issue by citing the self-same declaration as proof of the purported
ratification therein declared.
What complicates the cases at bar is the fact that the proposed 1972 Constitution was
enforced as having immediately taken effect upon the issuance on January 17, 1973 of
Proclamation 1102 and the question of whether confusion and disorder in government
affairs 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, finally declared
in effect 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 effects on
the life of the nation in the same manner as may have arisen under the bona fide acts of
the President now in the honest belief that the 1972 Constitution had been validly ratified by
means of the Citizens
_______________
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.
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SUPREME COURT REPORTS ANNOTATED
Javellana vs. The Executive Secretary
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 be 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 effects 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 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 nullification 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 ratified 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 officers; 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, 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 fiscal year budget for the
government and P6 million for the holding of the 1949 national elections. After rehearsing,
he further voted to also declare null
_______________
12 Idem, at pp. 384-385; italics supplied.
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Javellana vs. The Executive Secretary
and void the last two executive orders appropriating funds for the 1949 budget and elections,
completing the sufficient majority of six against four dissenting justices to pronounce a
valid judgment on that matter.13
Then Chief Justice Moran, who penned the Courts majority resolution, explained his vote
for annulment despite the great difficulties 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 unqualified 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 effected, and indefinite 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 be 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 appropriations act is a remote possibility, for
under the circumstances it 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
_______________
13 Idem, at p. 437.
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SUPREME COURT REPORTS ANNOTATED
Javellana vs. The Executive Secretary
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 firm 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 discharge the responsibilities committed
to respectively. 15
It should be duly acknowledged that the Courts task of discharging its duty and responsibility
has been considerably lightened by the Presidents 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
final 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 suffice it to say that I recognize the power of the Supreme Court.
With respect to appointments,
_______________
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 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.
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Javellana vs. The Executive Secretary
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 justifiable and not political questions, we
may echo the words therein of Chief Justice Whitfield 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
difficult 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 firm 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 Cooleys words,
so tied up (not only) the hands of their official agencies, but their own hands as well18 in
the exercise of their sovereign will or a liberal and flexible stand that would consider
compliance with the constitutional article on the amending process as merely directory rather
than mandatory.
The first choice of a strict stand, as applied to the cases at bar, signifies that the Constitution
may be amended in toto or otherwise exclusively by approval by a majority of the votes
_______________
16 Petitioner Monteclaros 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 Cooleys Constitutional Limitations, 8th Ed., Vol. I, p. 81.
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Javellana vs. The Executive Secretary
cast an election at which the amendments are submitted to the people for their ratification,19
participated in only by qualified and duly registered voters twenty-one years of age or over20
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) andnot plebiscites.24
To paraphrase U.S. Chief Justice John Marshall who first declared in the historic 1803 case
of Marbury vs. Madison25 the U.S. Supreme Courts 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, 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.
_______________
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).
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Javellana vs. The Executive Secretary
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 definition of the powers of government placed upon the judiciary the great
burden of determining the nature, scope and extent of such powers and stressed that when
the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority
over the other departments ... but only asserts the solemn and sacred obligation entrusted
to it by the Constitution to determine conflicting claims of authority under the Constitution
and to establish for the parties in an actual controversy the rights which the instrument
secures and guarantees to them.
II
Marshall was to utter much later in the equally historic 1819 case of McCulloch vs.
Maryland27 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
_______________
26 63 Phil. 134 (1936).
27 4 Wheaton 316 (1819).
28 Dean Pollaks The Constitution and the Supreme Court, Vol. 1, p. 221.
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Javellana vs. The Executive Secretary
comprehending.29 This enduring concept to my mind permeated to this Courts exposition
and rationale in the hallmark case of Tolentino, wherein we rejected the contentions on the
Conventions 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 1971 Constitutional Conventions 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)30a without prejudice to other amendments that will be proposed in
the future ... on other portions of the amended section, this Court stated that the
constitutional provision in question (as proposed) presents no doubt which may be resolved
in favor of respondents and intervenors. We do not believe such doubt can exist only
because it is urged that the end sought to be achieved is to be desired. Paraphrasing no less
than the President of Constitutional Convention of 1934, Claro M. Recto, let those who would
put aside, invoking grounds at best controversial, any mandate of the fundamental law
purportedly in order to attain some laudable objective bear in mind that someday somehow
others with purportedly more laudable objectives may take advantage of the precedent and
continue the
_______________
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.
30a 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. Suffrage may be exercised by (male) citizens of the Philippines
not otherwise disqualified by law, who are (twenty one) EIGHTEEN years of age or over and
are able to read and write ...
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destruction of the Constitution, making those who laid down the precedent of justifying
deviations from the requirements of the Constitution the victims of their own folly.31
2. This Court held in Tolentino that:
x x x 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 officers 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 affects the
lives, fortunes, future and every other conceivable aspect of the lives of all the people within
the country and those subject to its 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 handiwork 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 by the people themselves, in regard to the process of their
amendment. And when such limitations or conditions are so incorporated in the original
constitution, it does not
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31 Resolution of Nov. 4, 1971, per Barredo, J. at p. 15.
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lie in the delegates of any subsequent convention to claim that they may ignore and disregard
such conditions because they are 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 ratification of an
amendment to the Constitution may be validly held, it must provide the voter not only
sufficient time but ample basis for an intelligent appraisal of the nature of 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 hardly
started considering the merits of hundreds, if not thousands, proposals to amend the existing
Constitution, to present to 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 ratification 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 Court35 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 rejection as minimum requirements that must be met
in order that there can be a proper submission to the people of a proposed constitutional
amendment thus:
_______________
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.
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x x x amendments must be fairly laid before the people for their blessing or spurning. The
people are not to be mere rubber stamps. They are not to vote blindly. They must be afforded
ample opportunity to mull over the original provisions, compare them with the proposed
amendments, and try to reach a conclusion as the dictates of their conscience suggest, free
from the incubus of extraneous or possibly insidious influences. We believe the word
submitted can only mean that the government, within its maximum capabilities, should
strain every effort to inform every citizen of the provisions to be amended, and the proposed
amendments and the meaning, nature and effects thereof. By this, we are not to be
understood as saying that, if one citizen or 100 citizens or 1,000 citizens cannot be reached,
then there is no submission within the meaning of the word as intended by the framers of the
Constitution. What the Constitution in effect directs is that the government, in submitting an
amendment for ratification, should put every instrumentality or agency within its structural
framework to enlighten the people, educate them with respect to their act of ratification or
rejection. For as we have earlier stated, one thing is submission and another is ratification.
There must be fair submission, intelligent consent or rejection.36
They stressed further the need for undivided attention, sufficient 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 first 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 qualification
to entitle him to vote? In this age of permissiveness and dissent, can the 18-year 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
ratified 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
_______________
36 Idem at pp. 1-2.
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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 compulsory military service under the colors? Will the contractual consent be
reduced to 18 years? If I vote against the 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 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, sufficiently informed of the meaning, nature and effects of the proposed constitutional
amendment. They have not been afforded ample time to deliberate thereon conscientiously.
They have been and are effectively 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 proposed amendment.37
5. This Court therein dismissed the plea of disregarding 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 real constitutionalism and repugnant to the
essence of the rule of law, in the following terms:
x x x 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
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 ratification only in the
manner herein provided. x x x Accordingly, the real issue here cannot be whether or not the
amending process delineated
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37 Idem at p. 3.
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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 ratification 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 official 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 Courts denial
of the motion for reconsideration, succinctly restated this Courts position on the
fundamentals, as follows:
On the premature submission of a partial amendment proposal, with a temporary
provisional or tentative character: x x x 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 ratification or rejection. x x x Then, too, the submission to a
plebiscite of a partial amendment, without a definite frame of reference, is fraught with
possibilities which may jeopardize the social fabric. For one thing, it opens the door to wild
speculations. It offers ample opportunities for overzealous leaders and members of opposing
political camps to
_______________
38Resolution 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.
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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 peoples 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, 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 ratification in a plebiscite 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 possible connotations. It may mean strict adherence to the law,
which in the case at bar is the Supreme Law of the land. On point, suffice it to say that, in
compliance with the specific man of such Supreme Law, the members of the Supreme Court
taken the requisite oath to support and defend the Constitution. x x x 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 voting age is badly needed and reflects the will of the
people, specially the youth. This course of action favors, in effect, adoption of apolitical
approach, inasmuch as the advisability of the amendment and an appraisal of the peoples
feeling thereon 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
letterhead of some sectarian 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 brought to bear heavily upon the Court for a reconsideration of its decision in the
case at bar.
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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 develop 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 Convention called upon
to draft it would be 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 confirmed 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 word
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 politics
on the highest level. In any event, politics, political approach, political expediency and
statesmanship are generally associated, and often identified, with the dictum that the end
justifies the means. I earnestly hope that the administration of justice in this country and the
Supreme Court, in particular, will adhere to or approve or indorse such dictum.40
_______________
40 All quotations are from the Chief Justices concurring opinion in Tolentino, pp. 4-7.
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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 ratification of the new Constitution in so far as
to allow young people who would be governed by the Constitution to be given a say on what
kind of Constitution they will have is a laudable end, x x x those urging the vitality and
importance of the proposed constitutional amendment and its approval ahead of the
complete and final draft of the Constitution must seek a valid solution to achieve it in a
manner sanctioned by the amendatory process ordained by our people in the present
Constitution41 so that there may be submitted, not piece-meal, but by way of complete
and final 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 above-enunciated
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 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.
_______________
41 Separate op. of J. Teehankee concurring in Res. of No. 4, 1971 in Tolentino, pp. 8, 9, 10.
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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 suffrage may speak the will of the body politic, viz, qualified literate voters twenty
one years of age or over with one years residence in the municipality where they have
registered.
The people, not as yet satisfied, 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 case43 with a constitutional system and provisions analogous to ours,
best defined the uses of the term people as a body politic and people in the political sense
who are synonymous with the qualified 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 significations
dependent upon the connection in which it is used. In some connections in the
_______________
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.
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Constitution it is confined 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 deficiency or lack of the common
essentials of education. All these persons are secured 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 fittingly stated
that in 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 any 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 of political signification.
The people in this connection means that part of the entire body of inhabitants who under
the Constitution are entrusted 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 constitutions,
and they have themselves thereby set bounds to their own power, as against the sudden
impulse of mere
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Javellana vs. The Executive Secretary
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 ratification, 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 qualified voters can exercise the
right of suffrage 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 level45 the Revised Barrio Charter fixes 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
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.46
As to voting at such barrio plebiscites, the Charter further requires that (A)ll duly registered
barrio assembly members qualified to vote may vote in the plebiscite. Voting procedures
_______________
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 x x.
Rep. Act 3590, sec. 2.
46 Rep. Act 3590, sec. 6, par. 1.
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Javellana vs. The Executive Secretary
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 specified: (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 qualifications for voters in such barrio plebiscites and elections of barrio officials49
comply with the suffrage qualifications of Article V, section 1 of the Constitution and provide
that (S)EC. 10. Qualifications 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
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 ratification as therein provided as well as in section 16 of Article XVII of the
proposed Constitution itself51 has been called or held, there cannot be said to have been a
_______________
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.
x x. Idem, sec. 8.
50 Idem, sec. 10, italics supplied. The same section further disqualifies persons convicted
by final judgment to suffer 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.
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Javellana vs. The Executive Secretary
valid ratification.
2. Petitioners raised serious questions as to the veracity and genuineness of the reports or
certificates of results purportedly showing unaccountable discrepancies in seven figures in
just five provinces52 between the reports as certified 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 final 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 ratified 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 qualified
and duly registered voters. In this manner, the safeguards provided by the election code
generally assure the true ascertainment of the results of the
_______________
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 five hundred sixty one (14,976,561) members of all the
Barangays voted for the adoption of the proposed Constitution, as against seven hundred
forty-three thousand eight hundred sixty nine (743,869) who voted for its rejection; but a
majority of those who approved the new Constitution conditioned their votes on the demand
that the interim National Assembly provided in its Transitory Provisions should not be
convened.
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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 ratification 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 Convention55 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 Conventions proposal and
agency was that the President issue a decree precisely calling a plebiscite for the
ratification 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:
_______________
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.
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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 ratification 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 final draft of the new Constitution
by the end of November 1972 according to the Conventions timetable, it would be necessary
to lay the groundwork for the appropriate agencies of the government to undertake the
necessary preparation for the plebiscite.
x x x x x
12.2 Interpellating, 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 ratified
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.
x x x x x
12.4 Interpellating, Delegate Madarang suggested that a reasonable period for an
information campaign was necessary in order to properly apprise the people of the
implications and significance of the new charter. Delegate Duavit agreed, adding that this
was precisely why the resolution was modified to give the President the discretion to choose
the most appropriate date for the plebiscite.
12.5 Delegate Laggui asked whether a formal communication to the President informing
him of the adoption of the new Constitution would not suffice considering that under Section
15 of the Transitory Provisions, the President would be duty-bound to call a plebiscite for its
ratification. 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.
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12.6 In reply to Delegate Britanico, Delegate Duavit stated that the mechanics for the
holding of the plebiscite would be laid down by the Commission on Elections in coordination
with the President.
12.7 Delegate 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 Ratification
could coordinate with the COMELEC on the matter.
12.8 Delegate 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.
1.8a Delegate Guzman withdrew his motion.
12.9 Delegate 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 then moved to close the debate and proceed to the period of
amendment.
13.1 Floor Leader Montejo stated that there were no reservations to amend the resolution.
13.2 Delegate 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
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57 Convention Minutes of Nov. 22, 1972 submitted as Annex A of petitioner-delegate Sedfrey
A. Ordoez, et al. in the plebiscite case L-359042, par. 12 of petition and admitted in par. 4
of answer of therein respondents dated Dec. 15, 1972.
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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 channeled through the person of the Chief Executive. Energy in the executive, according
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
Presidents 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 effectively 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 difficult, 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
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* First decision promulgated by First Division of the Supreme Court.
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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 effective action of the government is
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 Debs case (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 Presidents powers in time of emergency defy precise definition
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 specific 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 Office to treasonable correspondence, the blockade of southern ports,
the suspension of the writ of habeas corpus, the arrest and
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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 justified 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 indefinite scope and legislative in effect in meeting the domestic aspects of a
war emergency. (Corwin, The President: Office & 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 indefinite 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 first 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 first step toward war some fifteen months before our entrance into
shooting war. This step occurred in September, 1940, when he handed over fifty 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 Congresss 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: Office and Powers,
1948.)
The creation of public offices is a power confided by the constitution to Congress. And yet
President Wilson, during
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World War I on the basis of his powers under the Commander-in-Chief clause created
offices which were copied in lavish scale by President Roosevelt in World War II. In April
1942, thirty-five 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 justified 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 efforts 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
justification, 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 S. 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 Nations Chief Executive and Commander-in-Chief of the armed forces, validly order
the seizure of most of the countrys steel mills. The Court however did not face the naked
question of the Presidents 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 field made untenable the Presidents claim of authority to seize the plants
as an exercise of inherent executive power or as Commander-in-Chief. Justice Clark, 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 qualification 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
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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 fill needed gaps in the law, or even to supersede it so far as may be requisite to
realize the fundamental law of nature 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 effect 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
todays concept of the emergency which justified the exercise of those powers has of
necessity been expanded to meet the exigencies of new dangers and crisis that directly
threaten the nations 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
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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
justification of emergency. In the final result constitutional practices of wartime have
moulded the Constitution to greater or less extent for peacetime as well, 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 citizens who are engaged in violent insurrection against
enforcement of its laws or are bent on capturing it illegally or 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 involved 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 cases which have
justified extraordinary governmental action in nations like the United States. Fire, flood,
drought, earthquake, riots, great strikes have all been dealt with by unusual and of dictatorial
methods. Wars are not won by debating societies, rebellions are not suppressed by judicial
injunctions, reemployment of twelve million jobless citizens will not be effected through a
scrupulous regard for the tenets of free enterprise, hardships caused by the eruptions of
nature cannot be mitigated letting nature take its course. The Civil War, the depression of
1933 and the recent global conflict 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 inaccordance with the provisions of existing election laws, which only
qualified voters who are allowed to participate, under the
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supervision of the Commission on Elections, the new Constitution, should therefore be 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 final 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 specifically 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 specific 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 constitutions 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,
_______________
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 affects 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 field of application not mere alternative procedures in the same field. (McFadden
v. Jordan, 196 P. 2d 787, 797 32 Cal. 2d 330).
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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 final 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 1935 Constitution does not specifically 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 not 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 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 ratification 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 Courts 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 specified the manner in which such submission
shall be made, the persons qualified to vote for the same, the date of election and other
definite 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
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N.E. 408) relied upon in one of the dissenting opinions involved in 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.3The 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
_______________
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.
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ratification of the proposed new Constitution. The adoption 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 effect, ratified the method and procedure taken. When the people
adopt 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 benefit. Thus
Section 1 of Article II of the 1935 Constitution declares that: Sovereignty resides in the
people and all government authority emanate 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 can be deduced from their acts of
conformity, because under a regime of martial law the people are bound to obey and act in
conformity with the orders of the President, and has absolutely no other choice. The flaw of
this argument lies in its application of a mere theoretical assumption based on the
experiences of other nations on an entirely different factual setting. Such an assumption
flounders on the rock of reality.
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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 officials. 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 1930s. 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 firearms, 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
_______________
* Leon O. Ty, Seven Months of Martial Law, Daily Express.
* Panorama, May 6, 1973.
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have been widely recognized as prime sources of the nations difficulties land tenancy,
official 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 affairs columnist wrote, in the April 11 issue of
The New York Times:
During his first 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 spread 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 effect 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, a 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 sharecropper-absentee landlord relationship. He is even
pushing for 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 writers 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 effectiveness
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and the new Constitution has become effective, 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 final 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 ratification, 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 affirms 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 effected through
political action, the Court whose existence is affected by such change is, in the words of Mr.
Melville Fuller Weston, precluded from passing upon the fact of change by a logical difficulty
which is not to be surmounted.5 Such change in the organic law relates to the
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 significant, however, that the
alleged alteration does or does not purport to affect the existence of the court itself. In
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existence of a prior point in the Courts chain of title to its authority and does not relate
merely to a question of the
_______________
the nature of things, a revolutionary charge does not admit judicial power as such to
determine the fact of its occurrence. If revolutionary constitution sets up a court differently
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 logical explanation of the Duke of Yorkscase.
For the court to give serious judicial consideration to such a question would present the
singular spectacle of a court sitting as a court to declare that we are not a court. (Brittle v.
People, 2 Neb. 198, 214 [1873].) And even 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
assess under which commission they are acting. To put the matter another way, it must be
true that in the first case above of two constitutions purporting to establish two different
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
equally obvious, the situation is logically identical where the same men are nominated to
constitute the court under both the old and 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 principles of statesmanship, upon
sovereignty and, its nature modes of action, and upon the bases of government, to justify
the 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 difficulties 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 constitution, there is a standard which the court can
apply and, by so
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horizontal distribution of powers.6 It involves in essence a matter which the sovereign has
entrusted to the so-called
_______________
doing, it can perceive judicially whether or not the change has followed the prescribed lines.
If it has, there is no difficulty in pronouncing as a matter of law its accomplishment. Only one
exception is possible, namely, the ease 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 difficulties 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 affect the tenure of many offices 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 offered 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 field of problems
which the Duke of Yorks 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 difficulty
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.
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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 fit
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 on 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 ones faith in the nations
leadership and in the maturity of judgment of our people.
IN VIEW OF THE FOREGOING, the dismissal of these five cases, and the conclusion of this
Court in its judgment of March 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 hazard. No
question of law is involved. (Political Questions, 38 Harvard Law Review [1924-25], pp. 305-
309.)
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6 & 7 Ibid., pp. 301, 305.
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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 two-thirds 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 becomes effective thirty days after the certification 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 affirmative,
delegates to the convention shall be chosen at the next regular statewide election, unless
the legislature provides for the election of the election 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,
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including, but not limited to, number of members, districts, election and certification of
delegates, and submission and ratification of revisions and ordinances. x x x.
Sec. 4. Powers. Constitutional conventions shall have plenary power to amend or revise the
constitution, subject only to ratification 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 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 qualified 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 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 qualifications, as Members of the Legislature. The delegates so elected shall meet
within three months after their election at such place as
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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
ratification 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 certified to the
Executive of the State, who shall call to his assistance the Controller, Treasurer, and
Secretary of State, and compare the returns so certified to him; and it shall be the duty of the
Executive to declare, by his proclamation, such Constitution, as may have been ratified by a
majority of all the votes cast at such special election, to be the Constitution of the State of
California.
3. Colorado (1876) Art. XIX. Amendments.
Sec. 1. Constitutional convention; how called. The general assembly may at any time be 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; fix the pay of its members and officers, 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
qualifications of members shall be the same as of members of the senate; and vacancies
occurring shall be filled in the manner provided for filling vacancies in the general assembly.
Said convention shall meet within three months after such election and prepare
suchrevisions, alterations or amendments to the constitution as may be deemed necessary;
which shall be submitted to the electors for their ratification or rejection at an election
appointed by the convention for that purpose, not less
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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
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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 newspaper 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 qualified 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 qualified
electors thereof, and two of whom shall be chosen from New Castle County, two from Kent
County and two from Sussex County by the qualified 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 the power to appoint such
officers, employees and assistants as it may be deem necessary, and fix 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 qualifications of its members. Whenever there shall be a vacancy in the office of
delegate from any district or county by reason of failure to elect, ineligibility, death,
resignation or otherwise, a writ of election to fill such vacancy shall be issued by the
Governor, and such vacancy shall be filled by the
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qualified 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 governors 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-fifths 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 the 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 yeas
and nays 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 countries where no newspaper is published, notice
shall be given by posting at the several polling precincts in such
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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. XIX. 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 than one newspaper of the 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 amendments 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.
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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 qualified to vote for
members of the General Assembly; and in case a majority of the electors so qualified, 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. Amendments and Revision.
Sec. 1. Amendments 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 qualified 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
law, the question of a General Revision of the Constitution shall be submitted to the Electors
qualified 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 certified as approved, the
Electors of each House of Representatives District as then organized shall Elect One
Delegate for each Electors of each Senatorial District as then organized shall Elect One
Delegate for each State Senator to which the District
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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. x x x 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 qualified electors in the manner
provided by such convention on the first Monday in April following the final adjournment of
the convention; but, in case an interval of at least 90 days shall not intervene between such
final adjournment and the date of such election. Upon the approval of such constitution or
amendments by a majority of the qualified electors voting thereon such constitution or
amendments shall take effect on the first day of January following the approval thereof.
9. Minnesota (1857) 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 proposed such alterations or 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 ratified 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.
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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 three-fifths of all the electors voting on the question shall have
voted for and ratified such revision, the same shall constitute a new constitution of the State
of Minnesota. Without such submission and ratification, said revision shall be of no force or
effect. 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
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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 qualified 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 held within six months after the passage of such law, and such Convention
shall consist of a number of Members not less that of both branches of the legislature. In
determining what is a majority of the electors voting such election, reference shall be had to
the highest number of vote cast at such election for the candidates of 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 first 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 qualified 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
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qualified 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 taken, and that, in the opinion of the
majority of the qualified 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; a submission to vote. 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 a majority of all the members elected to each of the two
houses, such proposed amendment or amendments shall, with 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 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
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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 first 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 effective 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 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 effect as a part of the Constitution from the date of such proclamation. When two or
more amendments
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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 first 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, as the case may be. The revision shall be in effect
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 amendments to his Constitution
may be proposed in either house of the Legislature, and if two-thirds of all the members
elected of the two houses, shall vote
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Javellana vs. The Executive Secretary
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. 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 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, 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.
392
392
SUPREME COURT REPORTS ANNOTATED
Javellana vs. The Executive Secretary
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 a 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.
o0o
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@ 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.

Copyright 2017 Central Book Supply, Inc. All rights reserved. Javellana vs. The Executive
Secretary, 50 SCRA 30, No. L-36142 March 31, 1973