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EN BANC Philippines], petitioner, L-35979, decided on January 22, 1973, to which We will hereafter
vs. refer collectively as the plebiscite cases.
INFORMATION, THE AUDITOR GENERAL, THE BUDGET Background of the Plebiscite Cases.
vs. The factual setting thereof is set forth in the decision therein
THE EXECUTIVE SECRETARY, THE SECRETARY OF NATIONAL G.R. No. L-36283 March 31, 1973 rendered, from which We quote:
FINANCE, respondents. NAPOLEON V. DILAG, ALFREDO SALAPANTAN, JR., LEONARDO On March 16, 1967, Congress of the Philippines
ASODISEN, JR., and RAUL M. GONZALEZ, petitioners, passed Resolution No. 2, which was amended by
G.R. No. L-36164 March 31, 1973 vs. Resolution No. 4 of said body, adopted on June
THE HONORABLE EXECUTIVE SECRETARY, THE HONORABLE 17, 1969, calling a Convention to propose
LORENZO M. TAÑADA, petitioners, GENERAL, respondents. was implemented by Republic Act No. 6132,
vs. approved on August 24, 1970, pursuant to the
THE EXECUTIVE SECRETARY, THE SECRETARY OF FINANCE , THE Ramon A. Gonzales for petitioner Josue Javellana. provisions of which the election of delegates to
SECRETARY OF JUSTICE, THE SECRETARY OF LAND REFORM, THE said Convention was held on November 10, 1970,
SECRETARY OF NATIONAL DEFENSE, THE AUDITOR GENERAL, THE Lorenzo M. Tañada and Associates for petitioners Vidal Tan, et al. and the 1971 Constitutional Convention began to
BUDGET COMMISSIONER, THE CHAIRMAN OF PRESIDENTIAL perform its functions on June 1, 1971. While the
COMMISSION ON REORGANIZATION, THE TREASURER OF THE Tañada, Salonga, Ordoñez, Rodrigo, Sanidad, Roxas. Gonzales and Convention was in session on September 21,
PHILIPPINES, THE COMMISSION ON ELECTIONS AND THE Arroyo for petitioners Gerardo Roxas, et al. 1972, the President issued Proclamation No. 1081
COMMISSIONER OF CIVIL SERVICE, respondents. placing the entire Philippines under Martial Law.
On November 29, 1972, the Convention approved
Joker P. Arroyo and Rogelio B. Padilla for petitioner Eddie
G.R. No. L-36165 March 31, 1973. its Proposed Constitution of the Republic of the
Philippines. The next day, November 30, 1972,
the President of the Philippines issued
GERARDO ROXAS, AMBROSIO PADILLA, JOVITO R. SALONGA, Raul M. Gonzales and Associates for petitioners Napoleon V. Dilag,
Presidential Decree No. 73, "submitting to the
Filipino people for ratification or rejection the
KALAW, petitioners,
Constitution of the Republic of the Philippines
vs. Arturo M. Tolentino for respondents Gil J. Puyat and Jose Roy. proposed by the 1971 Constitutional Convention,
ALEJANDRO MELCHOR, in his capacity as Executive Secretary;
and appropriating funds therefor," as well as
JUAN PONCE ENRILE, in his capacity as Secretary of National
Office of the Solicitor General Estelito P. Mendoza, Solicitor Vicente setting the plebiscite for said ratification or
Defense; General ROMEO ESPINO, in his capacity as Chief of Staff
V. Mendoza and Solicitor Reynato S. Puno for other respondents. rejection of the Proposed Constitution on January
of the Armed Forces of the Philippines; TANCIO E. CASTAÑEDA, in
15, 1973.
his capacity as Secretary General Services; Senator GIL J. PUYAT, in
his capacity as President of the Senate; and Senator JOSE ROY, his
capacity, as President Pro Tempore of the of the Soon after, or on December 7, 1972, Charito
Senate, respondents. CONCEPCION, C.J.: Planas filed, with this Court, Case G.R. No. L-
35925, against the Commission on Elections, the
The above-entitled five (5) cases are a sequel of cases G.R. Nos. L- Treasurer of the Philippines and the Auditor
G.R. No. L-36236 March 31, 1973
35925, General, to enjoin said "respondents or their
L-35929, L-35940, L-35941, L-35942, L-35948, L-35953, L-35961, L- agents from implementing Presidential Decree
EDDIE B. MONTECLARO, [personally and in his capacity as No. 73, in any manner, until further orders of the
35965 and
President of the National Press Club of the
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Court," upon the grounds, inter alia, that said Secretary of Education, the National Treasurer which said plebiscite would be held were known
Presidential Decree "has no force and effect as and the Auditor General (Case G.R. No. L-35979). or announced officially. Then, again, Congress
law because the calling ... of such plebiscite, the was, pursuant to the 1935 Constitution,
setting of guidelines for the conduct of the same, In all these cases, except the last (G.R. No. L- scheduled to meet in regular session on January
the prescription of the ballots to be used and the 35979), the respondents were required to file 22, 1973, and since the main objection to
question to be answered by the voters, and the their answers "not later than 12:00 (o'clock) noon Presidential Decree No. 73 was that the President
appropriation of public funds for the purpose, of Saturday, December 16, 1972." Said cases does not have the legislative authority to call a
are, by the Constitution, lodged exclusively in were, also, set for hearing and partly heard on plebiscite and appropriate funds therefor, which
Congress ...," and "there is no proper submission Monday, December 18, 1972, at 9:30 a.m. The Congress unquestionably could do, particularly in
to the people of said Proposed Constitution set hearing was continued on December 19, 1972. By view of the formal postponement of the plebiscite
for January 15, 1973, there being no freedom of agreement of the parties, the aforementioned by the President — reportedly after consultation
speech, press and assembly, and there being no last case — G.R. No. L-35979 — was, also, heard, with, among others, the leaders of Congress and
sufficient time to inform the people of the jointly with the others, on December 19, 1972. At the Commission on Elections — the Court
contents thereof." the conclusion of the hearing, on that date, the deemed it more imperative to defer its final
parties in all of the aforementioned cases were action on these cases.
Substantially identical actions were filed, on given a short period of time within which "to
December 8, 1972, by Pablo C. Sanidad against submit their notes on the points they desire to "In the afternoon of January 12, 1973, the
the Commission on Elections (Case G.R. No. L- stress." Said notes were filed on different dates, petitioners in Case G.R. No.
35929) on December 11, 1972, by Gerardo Roxas, between December 21, 1972, and January 4, L-35948 filed an "urgent motion," praying that
et al., against the Commission on Elections, the 1973. said case be decided "as soon as possible,
Director of Printing, the National Treasurer and preferably not later than January 15, 1973." It was
the Auditor General (Case G.R. L-35940), by Eddie Meanwhile, or on December 17, 1972, the alleged in said motion, inter alia:
B. Monteclaro against the Commission on President had issued an order temporarily
Elections and the Treasurer of the Philippines suspending the effects of Proclamation No. 1081, "6. That the President subsequently announced
(Case G.R. No. L-35941), and by Sedfrey Ordoñez, for the purpose of free and open debate on the the issuance of Presidential Decree No. 86
et al. against the National Treasurer and the Proposed Constitution. On December 23, the organizing the so-called Citizens Assemblies, to be
Commission on Elections (Case G.R. No. L-35942); President announced the postponement of the consulted on certain public questions [Bulletin
on December 12, 1972, by Vidal Tan, et al., plebiscite for the ratification or rejection of the Today, January 1, 1973];
against the Commission on Elections, the Proposed Constitution. No formal action to this
Treasurer of the Philippines, the Auditor General effect was taken until January 7, 1973, when "7. That thereafter it was later announced that
and the Director of Printing (Case G.R. No. L- General Order No. 20 was issued, directing "that "the Assemblies will be asked if they favor or
35948) and by Jose W. Diokno and Benigno S. the plebiscite scheduled to be held on January 15, oppose —
Aquino against the Commission on Elections (Case 1978, be postponed until further notice." Said
G.R. No. L-35953); on December 14, 1972, by General Order No. 20, moreover, "suspended in [1] The New Society;
Jacinto Jimenez against the Commission on the meantime" the "order of December 17, 1972,
Elections, the Auditor General, the Treasurer of temporarily suspending the effects of
[2] Reforms instituted under
the Philippines and the Director of the Bureau of Proclamation No. 1081 for purposes of free and
Martial Law;
Printing (Case G.R. No. L-35961), and by Raul M. open debate on the proposed Constitution."
Gonzales against the Commission on Elections,
the Budget Commissioner, the National Treasurer [3] The holding of a plebiscite
In view of these events relative to the
and the Auditor General (Case G.R. No. L-35965); on the proposed new
postponement of the aforementioned plebiscite,
and on December 16, 1972, by Ernesto C. Hidalgo Constitution and when (the
the Court deemed it fit to refrain, for the time
against the Commission on Elections, the tentative new dates given
being, from deciding the aforementioned cases,
following the postponement of
for neither the date nor the conditions under
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the plebiscite from the original [2] Do you like the reforms [6] Do you want martial law to
date of January 15 are February under martial law? continue? [Bulletin Today,
19 and March 5); January 11, 1973; emphasis
[3] Do you like Congress again supplied]
[4] The opening of the regular to hold sessions?
session slated on January 22 in "12. That according to reports, the returns with
accordance with the existing [4] Do you like the plebiscite to respect to the six (6) additional questions quoted
Constitution despite Martial be held later? above will be on a form similar or identical to
Law." [Bulletin Today, January 3, Annex "A" hereof;
1973.] [5] Do you like the way
President Marcos running the "13. That attached to page 1 of Annex "A" is
"8. That it was later reported that the following affairs of the another page, which we marked as Annex "A-1",
are to be the forms of the questions to be asked government? [Bulletin Today, and which reads: —
to the Citizens Assemblies: — January 10, 1973; emphasis an
additional question.] COMMENTS ON
[1] Do you approve of the New
Society? "11. That on January 11, 1973, it was reported QUESTION No. 1
that six (6) more questions would be submitted to
[2] Do you approve of the the so-called Citizens Assemblies: — In order to
reform measures under martial broaden the
law? [1] Do you approve of the base of
citizens assemblies as the base citizens'
[3] Do you think that Congress of popular government to participation
should meet again in regular decide issues of national in
session? interests? government.

[4] How soon would you like the [2] Do you approve of the new QUESTION No. 2
plebiscite on the new Constitution?
Constitution to be held? But we do not want the Ad
[Bulletin Today, January 5, [3] Do you want a plebiscite to Interim Assembly to be
1973]. be called to ratify the new convoked. Or if it is to be
Constitution? convened at all, it should not be
"9. That the voting by the so-called Citizens done so until after at least
Assemblies was announced to take place during [4] Do you want the elections to seven (7) years from the
the period from January 10 to January 15, 1973; be held in November, 1973 in approval of the New
accordance with the provisions Constitution by the Citizens
"10. That on January 10, 1973, it was reported of the 1935 Constitution? Assemblies.
that on more question would be added to the
four (4) question previously announced, and that [5] If the elections would not be QUESTION No. 3
the forms of the question would be as follows: — held, when do you want the
next elections to be called? The vote of the Citizens
[1] Do you like the New Society? Assemblies should already be
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considered the plebiscite on the "Attention is respectfully invited to the comments "16. That petitioners have reason to fear, and
New Constitution. on "Question No. 3," which reads: — therefore allege, that if an affirmative answer to
the two questions just referred to will be
If the Citizens Assemblies QUESTION No. 3 reported then this Honorable Court and the entire
approve of the New nation will be confronted with a fait
Constitution, then the new The vote of the Citizens accompli which has been attained in a highly
Constitution should be deemed Assemblies should be unconstitutional and undemocratic manner;
ratified. considered the plebiscite on the
New Constitution. "17. That the fait accompli would consist in the
QUESTION No. 4 supposed expression of the people approving the
If the Citizens Assemblies proposed Constitution;
We are sick and tired of too approve of the New
frequent elections. We are fed Constitution, then the new "18. That, if such event would happen, then the
up with politics, of so many Constitution should be deemed case before this Honorable Court could, to all
debates and so much expenses. ratified. intents and purposes, become moot because,
petitioners fear, and they therefore allege, that
QUESTION No. 5 This, we are afraid, and therefore allege, is on the basis of such supposed expression of the
pregnant with ominous possibilities. will of the people through the Citizens
Assemblies, it would be announced that the
Probably a period of at least
proposed Constitution, with all its defects, both
seven (7) years moratorium on 14. That, in the meantime, speaking on television
congenital and otherwise, has been ratified;
elections will be enough for and over the radio, on January 7, 1973, the
stability to be established in the President announced that the limited freedom of
country, for reforms to take debate on the proposed Constitution was being "19. That, in such a situation the Philippines will
root and normalcy to return. withdrawn and that the proclamation of martial be facing a real crisis and there is likelihood of
law and the orders and decrees issued thereunder confusion if not chaos, because then, the people
would thenceforth strictly be enforced [Daily and their officials will not know which
Express, January 8, 1973]; Constitution is in force.
We want President Marcos to
15. That petitioners have reason to fear, and "20. That the crisis mentioned above can only be
continue with Martial Law. We
therefore state, that the question added in the avoided if this Honorable Court will immediately
want him to exercise his powers
last list of questions to be asked to the Citizens decide and announce its decision on the present
with more authority. We want
Assemblies, namely: — in relation to the question petition;
him to be strong and firm so
that he can accomplish all his following it: —
reform programs and establish "21. That with the withdrawal by the President of
normalcy in the country. If all Do you still want a plebiscite to be called to ratify the limited freedom of discussion on the
other measures fail, we want the new Constitution?" — proposed Constitution which was given to the
President Marcos to declare a people pursuant to Sec. 3 of Presidential Decree
revolutionary government along No. 73, the opposition of respondents to
would be an attempt to by-pass and short-circuit
the lines of the new petitioners' prayer at the plebiscite be prohibited
this Honorable Court before which the question
Constitution without the ad has now collapsed and that a free plebiscite can
of the validity of the plebiscite on the proposed
interim Assembly." no longer be held."
Constitution is now pending;
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At about the same time, a similar prayer was they were supposed to have met during the period between amendments, but there were no
made in a "manifestation" filed by the petitioners January 10 and January 15, 1973, particularly on the two questions similar provisions to guide and
in L-35949, "Gerardo Roxas, et al. v. Commission quoted in paragraph 1 of this Supplemental Urgent Motion; regulate proceedings of the so
on Elections, et al.," and L-35942, "Sedfrey A. called Citizens' Assemblies;
Ordoñez, et al. v. The National Treasurer, et al." "4. That the proceedings of the so-called Citizens' Assemblies are
illegal, null and void particularly insofar as such proceedings are [d] It is seriously to be doubted that, for lack of material time, more
The next day, January 13, 1973, which was a being made the basis of a supposed consensus for the ratification than a handful of the so called Citizens' Assemblies have been
Saturday, the Court issued a resolution requiring of the proposed Constitution because: — actually formed, because the mechanics of their organization were
the respondents in said three (3) cases to still being discussed a day or so before the day they were supposed
comment on said "urgent motion" and [a] The elections contemplated to begin functioning: —
"manifestation," "not later than Tuesday noon, in the Constitution, Article XV,
January 16, 1973." Prior thereto, or on January at which the proposed "Provincial governors and city and municipal mayors had been
15, 1973, shortly before noon, the petitioners in constitutional amendments are meeting with barrio captains and community leaders since last
said Case G.R. No. L-35948 riled a "supplemental to be submitted for ratification, Monday [January 8, 1973) to thresh out the mechanics in the
motion for issuance of restraining order and are elections at which only formation of the Citizens Assemblies and the topics for discussion."
inclusion of additional respondents," praying — qualified and duly registered [Bulletin Today, January 10, 1973]
voters are permitted to vote,
"... that a restraining order be issued enjoining and restraining whereas, the so called Citizens' "It should be recalled that the Citizens'
respondent Commission on Elections, as well as the Department of Assemblies were participated in Assemblies were ordered formed only at the
Local Governments and its head, Secretary Jose Roño; the by persons 15 years of age and beginning of the year [Daily Express, January 1,
Department of Agrarian Reforms and its head, Secretary Conrado older, regardless of 1973], and considering the lack of experience of
Estrella; the National Ratification Coordinating Committee and its qualifications or lack thereof, as the local organizers of said assemblies, as well as
Chairman, Guillermo de Vega; their deputies, subordinates and prescribed in the Election Code; the absence of sufficient guidelines for
substitutes, and all other officials and persons who may be assigned organization, it is too much to believe that such
such task, from collecting, certifying, and announcing and reporting [b] Elections or plebiscites for assemblies could be organized at such a short
to the President or other officials concerned, the so-called Citizens' the ratification of constitutional notice.
Assemblies referendum results allegedly obtained when they were amendments contemplated in
supposed to have met during the period comprised between Article XV of the Constitution "5. That for lack of material time, the appropriate
January 10 and January 15, 1973, on the two questions quoted in have provisions for the secrecy amended petition to include the additional
paragraph 1 of this Supplemental Urgent Motion." of choice and of vote, which is officials and government agencies mentioned in
one of the safeguards of paragraph 3 of this Supplemental Urgent Motion
In support of this prayer, it was alleged — freedom of action, but votes in could not be completed because, as noted in the
the Citizens' Assemblies were Urgent Motion of January 12, 1973, the
"3. That petitioners are now before this Honorable Court in order to open and were cast by raising submission of the proposed Constitution to the
ask further that this Honorable Court issue a restraining order hands; Citizens' Assemblies was not made known to the
enjoining herein respondents, particularly respondent Commission public until January 11, 1973. But be that as it
on Elections as well as the Department of Local Governments and [c] The Election Code makes may, the said additional officials and agencies
its head, Secretary Jose Roño; the Department of Agrarian Reforms ample provisions for free, may be properly included in the petition at bar
and its head, Secretary Conrado Estrella; the National Ratification orderly and honest elections, because: —
Coordinating Committee and its Chairman, Guillermo de Vega; and and such provisions are a
their deputies, subordinates and/or substitutes, from collecting, minimum requirement for [a] The herein petitioners have
certifying, announcing and reporting to the President the supposed elections or plebiscites for the prayed in their petition for the
Citizens' Assemblies referendum results allegedly obtained when ratification of constitutional annulment not only of
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Presidential Decree No. 73, but Supplemental Urgent Motion are restrained or enjoined from read Proclamation No. 1102 which is of the
also of "any similar decree, collecting, certifying, reporting or announcing to the President the following tenor:
proclamation, order or results of the alleged voting of the so-called Citizens' Assemblies,
instruction. irreparable damage will be caused to the Republic of the "BY THE PRESIDENT OF THE PHILIPPINES
Philippines, the Filipino people, the cause of freedom an
so that Presidential Decree No. 86, insofar at least democracy, and the petitioners herein because: "PROCLAMATION NO. 1102
as it attempts to submit the proposed
Constitution to a plebiscite by the so-called [a] After the result of the supposed voting on the questions "ANNOUNCING THE RATIFICATION BY THE
Citizens' Assemblies, is properly in issue in this mentioned in paragraph 1 hereof shall have been announced, a FILIPINO PEOPLE OF THE CONSTITUTION
case, and those who enforce, implement, or carry conflict will arise between those who maintain that the 1935 PROPOSED BY THE 1971 CONSTITUTIONAL
out the said Presidential Decree No. 86. and the Constitution is still in force, on the one hand, and those who will CONVENTION.
instructions incidental thereto clearly fall within maintain that it has been superseded by the proposed Constitution,
the scope of this petition; on the other, thereby creating confusion, if not chaos;
"WHEREAS, the Constitution proposed by the
nineteen hundred seventy-one Constitutional
[b] In their petition, petitioners sought the issuance of a writ of [b] Even the jurisdiction of this Court will be subject to serious Convention is subject to ratification by the Filipino
preliminary injunction restraining not only the respondents named attack because the advocates of the theory that the proposed people;
in the petition but also their "agents" from implementing not only Constitution has been ratified by reason of the announcement of
Presidential Decree No. 73, but also "any other similar decree, the results of the proceedings of the so-called Citizens' Assemblies
"WHEREAS, Citizens Assemblies were created in
order, instruction, or proclamation in relation to the holding of a will argue that, General Order No. 3, which shall also be deemed
barrios, in municipalities and in districts/wards in
plebiscite on January 15, 1973 for the purpose of submitting to the ratified pursuant to the Transitory Provisions of the proposed
chartered cities pursuant to Presidential Decree
Filipino people for their ratification or rejection the 1972 Draft or Constitution, has placed Presidential Decree Nos. 73 and 86 beyond
No. 86, dated December 31, 1972, composed of
proposed Constitution approved by the Constitutional Convention the reach and jurisdiction of this Honorable Court."
all persons who are residents of the barrio,
on November 30, 1972"; and finally,
district or ward for at least six months, fifteen
On the same date — January 15, 1973 — the years of age or over, citizens of the Philippines
[c] Petitioners prayed for such other relief which may be just and Court passed a resolution requiring the and who are registered in the list of Citizen
equitable. [p. 39, Petition]. respondents in said case G.R. No. L-35948 to file Assembly members kept by the barrio, district or
"file an answer to the said motion not later than 4 ward secretary;
"Therefore, viewing the case from all angles, the officials and P.M., Tuesday, January 16, 1973," and setting the
government agencies mentioned in paragraph 3 of this motion for hearing "on January 17, 1973, at 9:30
"WHEREAS, the said Citizens Assemblies were
Supplemental Urgent Motion, can lawfully be reached by the a.m." While the case was being heard, on the
established precisely to broaden the base of
processes of this Honorable Court by reason of this petition, date last mentioned, at noontime, the Secretary
citizen participation in the democratic process
considering, furthermore, that the Commission on Elections has of Justice called on the writer of this opinion and
and to afford ample opportunity for the citizenry
under our laws the power, among others, of: — said that, upon instructions of the President, he
to express their views on important national
(the Secretary of Justice) was delivering to him
(a) Direct and immediate supervision and control over national, (the writer) a copy of Proclamation No. 1102,
provincial, city, municipal and municipal district officials required by which had just been signed by the President.
"WHEREAS, responding to the clamor of the
law to perform duties relative to the conduct of elections on Thereupon, the writer returned to the Session
people and pursuant to Presidential Decree No.
matters pertaining to the enforcement of the provisions of this Hall and announced to the Court, the parties in
86-A, dated January 5, 1973, the following
Code ..." [Election Code of 1971, Sec. 3]. G.R. No. L-35948 — inasmuch as the hearing in
questions were posed before the Citizens
connection therewith was still going on — and the
Assemblies or Barangays: Do you approve of the
public there present that the President had,
"6. That unless the petition at bar is decided immediately and the New Constitution? Do you still want a plebiscite
according to information conveyed by the
Commission on Elections, together with the officials and to be called to ratify the new Constitution?
Secretary of Justice, signed said Proclamation No.
government agencies mentioned in paragraph 3 of this
1102, earlier that morning. Thereupon, the writer
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"WHEREAS, fourteen million nine hundred "By the President: have preferred to merely concur in the opinion of
seventy-six thousand five hundred sixty-one one of our colleagues.
(14,976,561) members of all the Barangays "ALEJANDRO MELCHOR
(Citizens Assemblies) voted for the adoption of Then the writer of said decision expressed his own opinion on the
the proposed Constitution, as against seven "Executive Secretary" issues involved therein, after which he recapitulated the views of
hundred forty-three thousand eight hundred the Members of the Court, as follows:
sixty-nine (743,869) who voted for its rejection;
Such is the background of the cases submitted
while on the question as to whether or not the 1. There is unanimity on the justiciable nature of
determination. After admitting some of the
people would still like a plebiscite to be called to the issue on the legality of Presidential Decree
allegations made in the petition in L-35948 and
ratify the new Constitution, fourteen million two No. 73.
denying the other allegations thereof,
hundred ninety-eight thousand eight hundred
respondents therein alleged in their answer
fourteen (14,298,814) answered that there was
thereto, by way affirmative defenses: 1) that the 2. On the validity of the decree itself, Justices
no need for a plebiscite and that the vote of the
"questions raised" in said petition "are political in Makalintal, Castro, Fernando, Teehankee,
Barangays (Citizens Assemblies) should be
character"; 2) that "the Constitutional Convention Esguerra and myself, or six (6) Members of the
considered as a vote in a plebiscite;
acted freely and had plenary authority to propose Court, are of the opinion that the issue has
not only amendments but a Constitution which become moot and academic, whereas Justices
"WHEREAS, since the referendum results show would supersede the present Constitution"; 3) Barredo, Makasiar and Antonio voted to uphold
that more than ninety-five (95) per cent of the that "the President's call for a plebiscite and the the validity of said Decree.
members of the Barangays (Citizens Assemblies) appropriation of funds for this purpose are valid";
are in favor of the new Constitution, 4) that "there is not an improper submission" and 3. On the authority of the 1971 Constitutional
the Katipunan ng Mga Barangay has strongly "there can be a plebiscite under Martial Law"; and Convention to pass the proposed Constitution or
recommended that the new Constitution should 5) that the "argument that the Proposed to incorporate therein the provisions contested
already be deemed ratified by the Filipino people; Constitution is vague and incomplete, makes an by the petitioners in L-35948, Justices Makalintal,
unconstitutional delegation of power, includes a Castro, Teehankee and Esguerra opine that the
"NOW, THEREFORE, I, FERDINAND E. MARCOS, referendum on the proclamation of Martial Law issue has become moot and academic. Justices
President of the Philippines, by virtue of the and purports to exercise judicial power" is "not Fernando, Barredo, Makasiar, Antonio and myself
powers in me vested by the Constitution, do relevant and ... without merit." Identical defenses have voted to uphold the authority of the
hereby certify and proclaim that the Constitution were set up in the other cases under Convention.
proposed by the nineteen hundred and seventy- consideration.
one (1971) Constitutional Convention has been
4. Justice Fernando, likewise, expressed the view
ratified by an overwhelming majority of all of the Immediately after the hearing held on January 17, that the 1971 Constitutional Convention had
votes cast by the members of all the Barangays 1973, or since the afternoon of that date, the authority to continue in the performance of its
(Citizens Assemblies) throughout the Philippines, Members of the Court have been deliberating on functions despite the proclamation of Martial
and has thereby come into effect. the aforementioned cases and, after extensive Law. In effect, Justices Barredo, Makasiar and
discussions on the merits thereof, have deemed it Antonio hold the same view.
"IN WITNESS WHEREOF, I have hereunto set my best that each Member write his own views
hand and caused the seal of the Republic of the thereon and that thereafter the Chief Justice 5. On the question whether the proclamation of
Philippines to be affixed. should state the result or the votes thus cast on Martial Law affected the proper submission of the
the points in issue. Hence, the individual views of proposed Constitution to a plebiscite, insofar as
"Done in the City of Manila, this 17th day of my brethren in the Court are set forth in the the freedom essential therefor is concerned,
January, in the year of Our Lord, nineteen opinions attached hereto, except that, instead of Justice Fernando is of the opinion that there is a
hundred and seventy-three. writing their separate opinions, some Members repugnancy between the election contemplated
under Art. XV of the 1935 Constitution and the
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existence of Martial Law, and would, therefore, c. Justice Zaldivar maintains The Present Cases
grant the petitions were they not moot and unqualifiedly that the Proposed
academic. Justices Barredo, Antonio and Esguerra Constitution has not been Prior thereto, or on January 20, 1973, Josue Javellana filed Case
are of the opinion that issue involves questions of ratified in accordance with G.R. No. L-36142 against the Executive Secretary and the
fact which cannot be predetermined, and that Article XV of the 1935 Secretaries of National Defense, Justice and Finance, to restrain
Martial Law per se does not necessarily preclude Constitution, and that, said respondents "and their subordinates or agents from
the factual possibility of adequate freedom, for accordingly, it has no force and implementing any of the provisions of the propose Constitution not
the purposes contemplated. effect whatsoever. found in the present Constitution" — referring to that of 1935. The
petition therein, filed by Josue Javellana, as a "Filipino citizen, and a
6. On Presidential Proclamation No. 1102, the d. Justice Antonio feels "that the qualified and registered voter" and as "a class suit, for himself, and
following views were expressed: Court is not competent to act" in behalf of all citizens and voters similarly situated," was amended
on the issue whether the on or about January 24, 1973. After reciting in substance the facts
a. Justices Makalintal, Castro, Proposed Constitution has been set forth in the decision in the plebiscite cases, Javellana alleged
Fernando, Teehankee, ratified by the people or not, "in that the President had announced "the immediate implementation
Makasiar, Esguerra and myself the absence of any judicially of the New Constitution, thru his Cabinet, respondents including,"
are of the opinion that the discoverable and manageable and that the latter "are acting without, or in excess of jurisdiction in
question of validity of said standards," since the issue implementing the said proposed Constitution" upon the ground:
Proclamation has not been "poses a question of fact. "that the President, as Commander-in-Chief of the Armed Forces of
properly raised before the the Philippines, is without authority to create the Citizens
Court, which, accordingly, 7. On the question whether or not these cases Assemblies"; that the same "are without power to approve the
should not pass upon such should be dismissed, Justices Makalintal, Castro, proposed Constitution ..."; "that the President is without power to
question. Barredo, Makasiar, Antonio and Esguerra voted in proclaim the ratification by the Filipino people of the proposed
the affirmative, for the reasons set forth in their Constitution"; and "that the election held to ratify the proposed
b. Justice Barredo holds that the respective opinions. Justices Fernando, Constitution was not a free election, hence null and void."
issue on the constitutionality of Teehankee, and the writer similarly voted, except
Proclamation No. 1102 has been as regards Case No. L-35948 as to which they Similar actions were filed, on January 23, 1973, by Vidal Tan, J.
submitted to and should be voted to grant to the petitioners therein a Antonio Araneta, Alejandro Roces, Manuel Crudo, Antonio U.
determined by the Court, and reasonable period of time within which to file Miranda, Emilio de Peralta and Lorenzo M. Tañada, against the
that the "purported ratification appropriate pleadings should they wish to contest Executive Secretary, the Secretaries of Finance, Justice, Land
of the Proposed Constitution ... the legality of Presidential Proclamation No. 1102. Reform, and National Defense, the Auditor General, the Budget
based on the referendum Justice Zaldivar favors the granting of said period Commissioner, the Chairman of the Presidential Commission on
among Citizens' Assemblies falls to the petitioners in said Case No. L-35948 for the Reorganization, the Treasurer of the Philippines, the Commission
short of being in strict aforementioned purpose, but he believes, in on Elections and the Commissioner of Civil Service4 on February 3,
conformity with the effect, that the Court should go farther and 1973, by Eddie Monteclaro, personally and as President of the
requirements of Article XV of decide on the merits everyone of the cases under National Press Club of the Philippines, against the Executive
the 1935 Constitution," but that consideration. Secretary, the Secretary of Public Information, the Auditor General,
such unfortunate drawback the Budget Commissioner and the National Treasurer 5 and on
notwithstanding, "considering Accordingly, the Court — acting in conformity with the position February 12, 1973, by Napoleon V. Dilag, Alfredo Salapantan, Jr.,
all other related relevant taken by six (6) of its members,1 with three (3) members Leonardo Asodisen, Jr. and Raul M. Gonzales, 6 against the Executive
circumstances, ... the new dissenting,2 with respect to G.R. No. L-35948, only and another Secretary, the Secretary of National Defense, the Budget
Constitution is legally member3 dissenting, as regards all of the cases dismissed the same, Commissioner and the Auditor General.
recognizable and should be without special pronouncement as to costs.
recognized as legitimately in Likewise, on January 23, 1973, Gerardo Roxas, Ambrosio Padilla,
force." Jovito R. Salonga, Salvador H. Laurel,7 Ramon V. Mitra, Jr. and Eva
Page 9 of 158

Estrada-Kalaw, the first as "duly elected Senator and Minority Floor Constitution of the Republic of the Philippines" is inherently illegal comply with their duties and functions as President and President
Leader of the Senate," and others as "duly elected members" and palpably unconstitutional; that respondents Senate President Pro Tempore, respectively, of the Senate of Philippines, as provided
thereof, filed Case G.R. No. L-36165, against the Executive and Senate President Pro Tempore "have unlawfully refrained and by law and the Rules of the Senate."
Secretary, the Secretary National Defense, the Chief of Staff of the continue to refrain from and/or unlawfully neglected and continue
Armed Forces of the Philippines, the Secretary of General Services, to neglect the performance of their duties and functions as such Required to comment on the above-mentioned petitions and/or
the President and the President Pro Tempore of the Senate. In their officers under the law and the Rules of the Senate" quoted in the amended petitions, respondents filed, with the leave Court first had
petition — as amended on January 26, 1973 — petitioners Gerardo petition; that because of events supervening the institution of the and obtained, a consolidated comment on said petitions and/or
Roxas, et al. allege, inter alia, that the term of office of three of the plebiscite cases, to which reference has been made in the amended petitions, alleging that the same ought to have been
aforementioned petitioners8 would expire on December 31, 1975, preceding pages, the Supreme Court dismissed said cases on dismissed outright; controverting petitioners' allegations
and that of the others9 on December 31, 1977; that pursuant to our January 22, 1973, by a majority vote, upon the ground that the concerning the alleged lack impairment of the freedom of the 1971
1935 Constitution, "which is still in force Congress of the Philippines petitions therein had become moot and academic; that the alleged Constitution Convention to approve the proposed Constitution, its
"must convene for its 8th Session on Monday, January 22, 1973, at ratification of the 1972 (1973) Constitution "is illegal, alleged lack of authority to incorporate certain contested provisions
10:00 A.M., which is regular customary hour of its opening session"; unconstitutional and void and ... can not have superseded and thereof, the alleged lack of authority of the President to create and
that "on said day, from 10:00 A.M. up to the afternoon," said revoked the 1935 Constitution," for the reasons specified in the establish Citizens' Assemblies "for the purpose submitting to them
petitioner "along with their other colleagues, were unlawfully petition as amended; that, by acting as they did, the respondents the matter of ratification of the new Constitution," the alleged
prevented from using the Senate Session Hall, the same having and their "agents, representatives and subordinates ...have "improper or inadequate submiss of the proposed constitution,"
been closed by the authorities in physical possession and control excluded the petitioners from an office to which" they "are lawfully the "procedure for ratification adopted ... through the Citizens
the Legislative Building"; that "(a)t about 5:00 to 6:00 P.M. the said entitled"; that "respondents Gil J. Puyat and Jose Roy have Assemblies"; a maintaining that: 1) "(t)he Court is without
day, the premises of the entire Legislative Building were ordered unlawfully refrained from convening the Senate for its 8th session, jurisdiction to act on these petitions"; 2) the questions raised
cleared by the same authorities, and no one was allowed to enter assuming general jurisdiction over the Session Hall and the therein are "political in character and therefore nonjusticiable"; 3)
and have access to said premises"; that "(r)espondent Senate premises of the Senate and ... continue such inaction up to this "there substantial compliance with Article XV of the 1
President Gil J. Puyat and, in his absence, respondent President Pro time and ... a writ of mandamus is warranted in order to compel Constitution"; 4) "(t)he Constitution was properly submitted the
Tempore Jose Roy we asked by petitioning Senators to perform them to comply with the duties and functions specifically enjoined people in a free, orderly and honest election; 5) "Proclamation No.
their duties under the law and the Rules of the Senate, but by law"; and that "against the above mentioned unlawful acts of 1102, certifying the results of the election, is conclusive upon the
unlawfully refrained and continue to refrain from doing so"; that the respondents, the petitioners have no appeal nor other speedy courts"; and 6) "(t)he amending process outlined in Article XV of the
the petitioners ready and willing to perform their duties as duly and adequate remedy in the ordinary course of law except by 1935 Constitution is not exclusive of other modes of amendment."
elected members of the Senate of the Philippines," but respondent invoking the equitable remedies of mandamus and prohibition with
Secretary of National Defense, Executive Secretary and Chief of the provisional remedy of preliminary mandatory injunction." Respondents Puyat and Roy, in said Case G.R. No. L-36165, filed
Staff, "through their agents and representatives, are preventing their separate comment therein, alleging that "(t)he subject
petitioners from performing their duties as duly elected Senators of Premised upon the foregoing allegations, said petitioners prayed matter" of said case "is a highly political question which, under the
the Philippines"; that "the Senate premise in the Congress of the that, "pending hearing on the merits, a writ of preliminary circumstances, this ...Court would not be in a position to act upon
Philippines Building ... are occupied by and are under the physical mandatory injunction be issued ordering respondents Executive judicially," and that, in view of the opinions expressed by three
control of the elements military organizations under the direction Secretary, the Secretary of National Defense, the Chief of Staff of members of this Court in its decision in the plebiscite cases, in
of said respondents"; that, as per "official reports, the Department the Armed Forces of the Philippines, and the ... Secretary of General effect upholding the validity of Proclamation No. 1102, "further
of General Services ... is now the civilian agency in custody of the Service, as well as all their agents, representatives and subordinates proceedings in this case may only be an academic exercise in
premises of the Legislative Building"; that respondents "have to vacate the premises of the Senate of the Philippines and to futility."
unlawfully excluded and prevented, and continue to so exclude and deliver physical possession of the same to the President of the
prevent" the petitioners "from the performance of their sworn Senate or his authorized representative"; and that hearing, On February 5, 1973, the Court issued a resolution requiring
duties, invoking the alleged approval of the 1972 (1973) judgment be rendered declaring null and Proclamation No. 1102 ... respondents in L-36236 to comment on the petition therein not
Constitution of the Philippines by action of the so-called Citizens' and any order, decree, proclamation having the same import and later than Saturday, February 10, 1973, and setting the case for
Assemblies on January 10, 1973 to January 15, 1973, as stated in objective, issuing writs of prohibition and mandamus, as prayed for hearing on February 12, 1973, at 9:30 a.m. By resolution dated
and by virtue of Proclamation No. 1102 signed and issued by the against above-mentioned respondents, and making the writ February 7, 1973, this Court resolved to consider the comments of
President of the Philippines"; that "the alleged creation of the injunction permanent; and that a writ of mandamus be issued the respondents in cases G.R. Nos. L-36142, L-36164, and L-36165,
Citizens' Assemblies as instrumentalities for the ratification of the against the respondents Gil J. Puyat and Jose Roy directing them to as motions to dismiss the petitions therein, and to set said cases for
Page 10 of 158

hearing on the same date and time as L-36236. On that date, the This defense or theory, set up by counsel for respondents Gil J. Secondly, counsel for the aforesaid respondents had apparently
parties in G.R. No. L-36283 10 agreed that the same be, likewise, Puyat and Jose Roy in G.R. No. L-36165, and, also, by the Solicitor assumed that, under the 1935 Constitution, eight (8) votes are
heard, as it was, in fact, heard jointly with the aforementioned General, is predicated upon the fact that, in Our decision in the necessary to declare invalid the contested Proclamation No. 1102. I
cases G.R. Nos. L-36142, L-36164, L-36165 and L-36236. The plebiscite cases, Mr. Justice Barredo had expressed the view that do not believe that this assumption is borne out by any provision of
hearing, which began on February 12, 1973, shortly after 9:30 a.m., the 1935 Constitution had "pro tanto passed into history" and said Constitution. Section 10 of Article VIII thereof reads:
was continued not only that afternoon, but, also, on February 13, "been legitimately supplanted by the Constitution now in force by
14, 15 and 16, morning and afternoon, after which the parties were virtue of Proclamation No. 1102 ..."; that Mr. Justice Antonio did All cases involving the constitutionality of a treaty
granted up to February 24, 1973, noon, within which to submit not feel "that this Court competent to act" in said cases "in the or law shall be heard and decided by the Supreme
their notes of oral arguments and additional arguments, as well as absence of any judicially discoverable and manageable standards" Court in banc, and no treaty or law may be
the documents required of them or whose presentation was and because "the access to relevant information is insufficient to declared unconstitutional without the
reserved by them. The same resolution granted the parties until assure the correct determination of the issue," apart from the concurrence of two thirds of all the members of
March 1, 1973, to reply to the notes filed by their respective circumstance that "the new constitution has been promulgated and the Court.
opponents. Counsel for the petitioners in G.R. Nos. L-36164 and L- great interests have already arisen under it" and that the political
36165 filed their aforementioned notes on February 24, 1973, on organ of the Government has recognized its provisions; whereas, Pursuant to this section, the concurrence of two-thirds of all the
which date the Solicitor General sought an extension of time up to Mr. Justice Esguerra had postulated that "(w)ithout any competent Members of the Supreme Court is required only to declare "treaty
March 3, 1973, within which to file his notes, which was granted, evidence ... about the circumstances attending the holding" of the or law" unconstitutional. Construing said provision, in a resolution
with the understanding that said notes shall include his reply to the "referendum or plebiscite" thru the Citizens' Assemblies, he dated September 16, 1949, then Chief Justice Moran, voicing
notes already filed by the petitioners in G.R. Nos. L-36164 a L- "cannot say that it was not lawfully held" and that, accordingly, the unanimous view of the Members of this Court, postulated:
36165. Counsel for the petitioners, likewise, moved and were he assumed "that what the proclamation (No. 1102) says on its face
granted an extension of time, to expire on March 10, 1973, within is true and until overcome by satisfactory evidence" he could not
... There is nothing either in the Constitution or in
which to file, as they did, their notes in reply to those submitted by "subscribe to the claim that such plebiscite was not held
the Judiciary Act requiring the vote of eight
the Solicitor General on March 3, 1973. On March 21, 1973, accordingly"; and that he accepted "as a fait accompli that the
Justices to nullify a rule or regulation or an
petitioners in L-36165 filed a "Manifestation a Supplemental Constitution adopted (by the 1971 Constitutional Convention) on
executive order issued by the President. It is very
Rejoinder," whereas the Office of the Solicitor General submitted in November 30, 1972, has been duly ratified.
significant that in the previous drafts of section
all these cases a "Rejoinder Petitioners' Replies."
10, Article VIII of the Constitution, "executive
Counsel for respondents Gil J. Puyat and Jose Roy goes on to say order" and "regulation" were included among
After deliberating on these cases, the members of the Court agreed that, under these circumstances, "it seems remote or improbable those that required for their nullification the vote
that each would write his own opinion and serve a copy thereof on that the necessary eight (8) votes under the 1935 Constitution, and of two-thirds of all the members of the Court. But
his colleagues, and this they did. Subsequently, the Court discussed much less the ten (10) votes required by the 1972 (1973) "executive order" and "regulation" were
said opinions and votes were cast thereon. Such individual opinions Constitution, can be obtained for the relief sought in the Amended later deleted from the final draft (Aruego, The
are appended hereto. Petition" in G.R. No. Framing of the Philippine Constitution, Vol. I, pp.
L-36165. 495, 496), and thus a mere majority of six
Accordingly, the writer will first express his person opinion on the members of this Court is enough to nullify them. 11
issues before the Court. After the exposition his aforesaid opinion, I am unable to share this view. To begin with, Mr. Justice Barredo
the writer will make, concurrently with his colleagues in the Court, announced publicly, in open court, during the hearing of these The distinction is not without reasonable foundation. The two
a resume of summary of the votes cast by them in these cases. cases, that he was and is willing to be convinced that his thirds vote (eight [8] votes) requirement, indeed, was made to
aforementioned opinion in the plebiscite cases should be apply only to treaty and law, because, in these cases, the
Writer's Personal Opinion reconsidered and changed. In effect, he thus declared that he had participation of the two other departments of the government —
an open mind in connection with the cases at bar, and that in the Executive and the Legislative — is present, which circumstance
I. deciding the same he would not necessarily adhere to said opinion is absent in the case of rules, regulations and executive orders.
if the petitioners herein succeeded in convincing him that their Indeed, a law (statute) passed by Congress is subject to the
view should be sustained. approval or veto of the President, whose disapproval cannot be
Alleged academic futility of further proceedings in G.R. L-36165.
overridden except by the vote of two-thirds (2/3) of all members of
Page 11 of 158

each House of Congress. A treaty is entered into by the President As regards the applicability of the provisions of the proposed new held; that the Chief Executive has no authority, under the 1935
with the concurrence of the Senate, 13 which is not required in the Constitution, approved by the 1971 Constitutional Convention, in Constitution, to dispensewith said election or plebiscite; that the
case of rules, regulations or executive orders which are exclusive the determination of the question whether or not it is now in force, proceedings before the Citizens' Assemblies did not constitute and
acts of the President. Hence, to nullify the same, a lesser number of it is obvious that such question depends upon whether or not the may not be considered as such plebiscite; that the facts of record
votes is necessary in the Supreme Court than that required to said new Constitution has been ratified in accordance with the abundantly show that the aforementioned Assemblies could not
invalidate a law or treaty. requirements of the 1935 Constitution, upon the authority of which have been held throughout the Philippines from January 10 to
said Constitutional Convention was called and approved the January 15, 1973; and that, in any event, the proceedings in said
Although the foregoing refers to rules, regulations and executive proposed Constitution. It is well settled that the matter of Assemblies are null and void as an alleged ratification of the new
orders issued by the President, the dictum applies with equal force ratification of an amendment to the Constitution should be settled Constitution proposed by the 1971 Constitutional Convention, not
to executive proclamation, like said Proclamation No. 1102, by applying the provisions of the Constitution in force at the time of only because of the circumstances under which said Assemblies had
inasmuch as the authority to issue the same is governed by section the alleged ratification, or the old Constitution. 16 been created and held, but, also, because persons disqualified to
63 of the Revised Administrative Code, which provides: vote under Article V of the Constitution were allowed to participate
II therein, because the provisions of our Election Code were not
Administrative acts and commands of the observed in said Assemblies, because the same were not held
(Governor-General) President of the Philippines Does the issue on the validity of Proclamation No. 1102 partake of under the supervision of the Commission on Elections, in violation
touching the organization or mode of operation the nature of a political, and, hence, non-justiciable question? of section 2 of Article X of the 1935 Constitution, and because the
of the Government or rearranging or readjusting existence of Martial Law and General Order No. 20, withdrawing or
any of the districts, divisions, parts or ports of the suspending the limited freedom to discuss the merits and demerits
The Solicitor General maintains in his comment the affirmative view
(Philippine Islands) Philippines and all acts and of said proposed Constitution, impaired the people's freedom in
and this is his main defense. In support thereof, he alleges that
commands governing the general performance of voting thereon, particularly a viva voce, as it was done in many
"petitioners would have this Court declare as invalid the New
duties by public employees or disposing of issues instances, as well as their ability to have a reasonable knowledge of
Constitution of the Republic" from which — he claims — "this Court
of general concern shall be made effective in the contents of the document on which they were allegedly called
now derives its authority"; that "nearly 15 million of our body
executive orders. upon to express their views.
politic from the age of 15 years have mandated this Constitution to
be the New Constitution and the prospect of unsettling acts done in
Executive orders fixing the dates when specific reliance on it caution against interposition of the power of judicial Referring now more specifically to the issue on whether the new
laws, resolutions, or orders are to have or cease review"; that "in the case of the New Constitution, the government Constitution proposed by the 1971 Constitutional Convention has
to (have) effect and any information concerning has been recognized in accordance with the New Constitution"; been ratified in accordance with the provisions of Article XV of the
matters of public moment determined by law, that "the country's foreign relations are now being conducted in 1935 Constitution is a political question or not, I do not hesitate to
resolution, or executive orders, may be accordance with the new charter"; that "foreign governments have state that the answer must be in the negative. Indeed, such is the
promulgated in an executive proclamation, with taken note of it"; that the "plebiscite cases" are "not precedents for position taken by this Court, 17 in an endless line of decisions, too
all the force of an executive order. 14 holding questions regarding proposal and ratification justiciable"; long to leave any room for possible doubt that said issue is
and that "to abstain from judgment on the ultimate issue of inherently and essentially justiciable. Such, also, has been the
constitutionality is not to abdicate duty." consistent position of the courts of the United States of America,
In fact, while executive order embody administrative acts or
whose decisions have a persuasive effect in this jurisdiction, our
commands of the President, executive proclamations are mainly
constitutional system in the 1935 Constitution being patterned
informative and declaratory in character, and so does counsel for At the outset, it is obvious to me that We are not being asked to
after that of the United States. Besides, no plausible reason has, to
respondents Gil J. Puyat and Jose Roy maintain in G.R. No. "declare" the new Constitution invalid. What petitioners dispute is
my mind, been advanced to warrant a departure from said position,
L-36165. 15 As consequence, an executive proclamation has no the theory that it has been validly ratified by the people, especially
consistently with the form of government established under said
more than "the force of an executive order," so that, for the that they have done so in accordance with Article XV of the 1935
Supreme Court to declare such proclamation unconstitutional, Constitution. The petitioners maintain that the conclusion reached
under the 1935 Constitution, the same number of votes needed to by the Chief Executive in the dispositive portion of Proclamation
invalidate an executive order, rule or regulation — namely, six (6) No. 1102 is not borne out by the whereases preceding the same, as Thus, in the aforementioned plebiscite cases, 18 We rejected the
votes — would suffice. the predicates from which said conclusion was drawn; that the theory of the respondents therein that the question whether
plebiscite or "election" required in said Article XV has not been Presidential Decree No. 73 calling a plebiscite to be held on January
15, 1973, for the ratification or rejection of the proposed new
Page 12 of 158

Constitution, was valid or not, was not a proper subject of judicial the other departments, but, also, to inquire into or pass upon the question thus raised is a fundamental one; but it
inquiry because, they claimed, it partook of a political nature, and advisability or wisdom of the acts performed, measures taken or has been so often decided contrary to the view
We unanimously declared that the issue was a justiciable one. With decisions made by the other departments — provided that such contended for by the Attorney General that it
identical unanimity, We overruled the respondents' contention in acts, measures or decisions are within the area allocated thereto by would seem to be finally settled.
the 1971 habeas corpus cases, 19 questioning Our authority to the Constitution. 25
determine the constitutional sufficiency of the factual bases of the xxx xxx xxx
Presidential proclamation suspending the privilege of the writ This principle of separation of powers under the presidential
of habeas corpus on August 21, 1971, despite the opposite view system goes hand in hand with the system of checks and balances, "... What is generally meant, when it is said that a
taken by this Court in Barcelona v. Baker 20 and Montenegro v. under which each department is vested by the Fundamental Law question is political, and not judicial, is that it is a
Castañeda, 21 insofar as it adhered to the former case, which view with some powers to forestall, restrain or arrest a possible or actual matter which is to be exercised by the people in
We, accordingly, abandoned and refused to apply. For the same misuse or abuse of powers by the other departments. Hence, the their primary political capacity, or that it has been
reason, We did not apply and expressly modified, in Gonzales v. appointing power of the Executive, his pardoning power, his veto specifically delegated to some other department
Commission on Elections, 22 the political-question theory adopted power, his authority to call the Legislature or Congress to special or particular officer of the government, with
in Mabanag v. Lopez Vito. 23 Hence, respondents herein urge Us to sessions and even to prescribe or limit the object or objects of discretionary power to act. See State vs.
reconsider the action thus taken by the Court and to revert to and legislation that may be taken up in such sessions, etc. Conversely, Cunningham, 81 Wis. 497, N.W. 724, 15 L.R.A.
follow the views expressed in Barcelon v. Baker and Mabanag v. Congress or an agency or arm thereof — such as the commission on 561; In re Gunn, 50 Kan. 155; 32 Pac. 470, 948, 19
Lopez Vito. 24 Appointments — may approve or disapprove some appointments L.R.A. 519; Green vs. Mills, 69 Fed. 852, 16 C.C.A.
made by the President. It, also, has the power of appropriation, to 516, 30 L.R.A. 90; Fletcher vs. Tuttle 151 Ill. 41, 37
The reasons adduced in support thereof are, however, substantially "define, prescribe, and apportion the jurisdiction of the various N.E. 683, 25 L.R.A. 143, 42 Am. St. Rep. 220. Thus
the same as those given in support of the political-question theory courts," as well as that of impeachment. Upon the other hand, the Legislature may in its discretion determine
advanced in said habeas corpus and plebiscite cases, which were under the judicial power vested by the Constitution, the "Supreme whether it will pass law or submit a proposed
carefully considered by this Court and found by it to be legally Court and ... such inferior courts as may be established by law," constitutional amendment to the people. The
unsound and constitutionally untenable. As a consequence, Our may settle or decide with finality, not only justiciable controversies courts have no judicial control over such matters,
decision in the aforementioned habeas corpus cases partakes of the between private individuals or entities, but, also, disputes or not merely because they involve political
nature and effect of a stare decisis, which gained added weight by conflicts between a private individual or entity, on the one hand, questions, but because they are matters which
its virtual reiteration in the plebiscite cases. and an officer or branch of the government, on the other, or the people have by the Constitution delegated to
between two (2) officers or branches of service, when the latter the Legislature. The Governor may exercise the
The reason why the issue under consideration and other issues of officer or branch is charged with acting without jurisdiction or in powers delegated him, free from judicial
similar character are justiciable, not political, is plain and simple. excess thereof or in violation of law. And so, when a power vested control, so long as he observes the laws act within
One of the principal bases of the non-justiciability of so-called in said officer or branch of the government the limits of the power conferred.
political questions is the principle of separation of powers — is absolute or unqualified, the acts in the exercise of such power are His discretionary acts cannot be controllable, not
characteristic of the Presidential system of government — the said to be political in nature, and, consequently, non-justiciable or primarily because they are of a politics nature,
functions of which are classified or divided, by reason of their beyond judicial review. Otherwise, courts of justice would be but because the Constitution and laws have
nature, into three (3) categories, namely: 1) those involving the arrogating upon themselves a power conferred by the Constitution placed the particular matter under his
making of laws, which are allocated to the legislative department; upon another branch of the service to the exclusion of the others. control. But every officer under constitutional
2) those concerned mainly with the enforcement of such laws and Hence, in Tañada v. Cuenco, 26 this Court quoted with approval government must act accordingly to law and
of judicial decisions applying and/or interpreting the same, which from In re McConaughy, 27 the following: subject its restrictions, and every departure
belong to the executive department; and 3) those dealing with the therefrom or disregard thereof must subject him
settlement of disputes, controversies or conflicts involving rights, "At the threshold of the case we are met with the to that restraining and controlling power of the
duties or prerogatives that are legally demandable and enforceable, assertion that the questions involved are political, people, acting through the agency of the judiciary;
which are apportioned to courts of justice. Within its own sphere — and not judicial. If this is correct, the court has no for it must be remembered that the people act
but only within such sphere — each department is supreme and jurisdiction as the certificate of the state through courts, as well as through the executive
independent of the others, and each is devoid of authority, not only canvassing board would then be final, regardless or the Legislature. One department is just as
to encroach upon the powers or field of action assigned to any of of the actual vote upon the amendment. The representative as the other, and the judiciary is
Page 13 of 158

the department which is charged with the special — as it is in our 1935 Constitution — "then, unless the manner is this segment of the population — which eventually resulted in a
duty of determining the limitations which the law followed, the judiciary as the interpreter of that constitution, will convention called for the drafting of a new Constitution to be
places upon all official action. The recognition of declare the amendment invalid." 29 In fact, this very Court — submitted to the people for their adoption or rejection. The
this principle, unknown except in Great Britain speaking through Justice Laurel, an outstanding authority on convention was not authorized by any law of the existing
and America, is necessary, to "the end that the Philippine Constitutional Law, as well as one of the highly respected government. The delegates to such convention framed a new
government may be one of laws and not of men" and foremost leaders of the Convention that drafted the 1935 Constitution which was submitted to the people. Upon the return
— words which Webster said were the Constitution — declared, as early as July 15, 1936, that "(i)n times of the votes cast by them, the convention declared that said
greatest contained in any written constitutional of social disquietude or political excitement, the great landmarks of Constitution had been adopted and ratified by a majority of the
document." (Emphasis supplied.) the Constitution are apt to be forgotten or marred, if not entirely people and became the paramount law and Constitution of Rhode
obliterated. In cases of conflict, the judicial department is the only Island.
and, in an attempt to describe the nature of a political question in constitutional organwhich can be called upon to determine the
terms, it was hoped, understandable to the laymen, We added that proper allocation of powers between the several departments" of The charter government, which was supported by a large number
"... the term "political question" connotes, in legal parlance, what it the government. 30 of citizens of the state, contested, however, the validity of said
means in ordinary parlance, namely, a question of policy" in proceedings. This notwithstanding, one Thomas W. Dorr, who had
matters concerning the government of a State, as a body politic. "In The Solicitor General has invoked Luther v. Borden 31 in support of been elected governor under the new Constitution of the rebels,
other words, in the language of Corpus Juris Secundum (supra), it his stand that the issue under consideration is non-justiciable in prepared to assert authority by force of arms, and many citizens
refers to "those questions which, under the Constitution, are to nature. Neither the factual background of that case nor the action assembled to support him. Thereupon, the charter government
be decided by the people in their sovereign capacity, or in regard to taken therein by the Federal Supreme Court has any similarity with passed an Act declaring the state under Martial Law and adopted
which full discretionary authority has been delegated to the or bearing on the cases under consideration. measures to repel the threatened attack and subdue the rebels.
Legislature or executive branch of the government." It is concerned This was the state of affairs when the defendants, who were in the
with issues dependent upon the wisdom, not legality, of a particular Luther v. Borden was an action for trespass filed by Luther with the military service of the charter government and were to arrest
measure." Circuit Court of the United States against Borden and others for Luther, for engaging in the support of the rebel government —
having forcibly entered into Luther's house, in Rhode Island, which was never able to exercise any authority in the state — broke
Accordingly, when the grant of power is qualified, conditional or sometime in 1842. The defendants who were in the military service into his house.
subject to limitations, the issue on whether or not the prescribed of said former colony of England, alleged in their defense that they
qualifications or conditions have been met, or the limitations had acted in obedience to the commands of a superior officer, Meanwhile, the charter government had taken measures to call its
respected, is justiciable or non-political, the crux of the problem because Luther and others were engaged in a conspiracy to own convention to revise the existing form of government.
being one of legality or validity of the contested act, not its wisdom. overthrow the government by force and the state had been placed Eventually, a new constitution was drafted by a convention held
Otherwise, said qualifications, conditions or limitations — by competent authority under Martial Law. Such authority was the under the authority of the charter government, and thereafter was
particularly those prescribed or imposed by the Constitution — charter government of Rhode Island at the time of the Declaration adopted and ratified by the people. "(T)he times and places at
would be set at naught. What is more, the judicial inquiry into such of Independence, for — unlike other states which adopted a new which the votes were to be given, the persons who were to receive
issue and the settlement thereof are the main functions of courts of Constitution upon secession from England — Rhode Island retained and return them, and the qualifications of the voters having all
justice under the Presidential form of government adopted in our its form of government under a British Charter, making only such been previously authorized and provided for by law passed by the
1935 Constitution, and the system of checks and balances, one of alterations, by acts of the Legislature, as were necessary to adapt it charter government," the latter formally surrendered all of its
its basic predicates. As a consequence, We have neither the to its subsequent condition as an independent state. It was under powers to the new government, established under its authority, in
authority nor the discretion to decline passing upon said issue, but this form of government when Rhode Island joined other American May 1843, which had been in operation uninterruptedly since then.
are under the ineluctable obligation — made particularly more states in the Declaration of Independence and, by subsequently
exacting and peremptory by our oath, as members of the highest ratifying the Constitution of the United States, became a member About a year before, or in May 1842, Dorr, at the head of a military
Court of the land, to support and defend the Constitution — to of the Union. In 1843, it adopted a new Constitution. force, had made an unsuccessful attempt to take possession of the
settle it. This explains why, in Miller v. Johnson, 28 it was held that state arsenal in Providence, but he was repulsed, and, after an
courts have a "duty, rather than a power", to determine whether Prior thereto, however, many citizens had become dissatisfied with "assemblage of some hundreds of armed men under his command
another branch of the government has "kept within constitutional the charter government. Memorials addressed by them to the at Chepatchet in the June following, which dispersed upon
limits." Not satisfied with this postulate, the court went farther and Legislature having failed to bring about the desired effect, meetings approach of the troops of the old government, no further effort
stressed that, if the Constitution provides how it may be amended were held and associations formed — by those who belonged to was made to establish" his government. "... until the Constitution of
Page 14 of 158

1843" — adopted under the auspices of the charter government — Constitution and laws of the United States which Constitutional Convention and now alleges that it has been ratified
"went into operation, the charter government continued to assert do not belong to the State courts. But the power by the people.
its authority and exercise its powers and to enforce obedience of determining that a State government has been
throughout the state ... ." lawfully established, which the courts of the State In short, the views expressed by the Federal Supreme Court
disown and repudiate, is not one of them. Upon in Luther v. Borden, decided in 1849, on matters otherthan those
Having offered to introduce evidence to prove that the constitution such a question the courts of the United States are referring to its power to review decisions of a state court
of the rebels had been ratified by the majority of the people, which bound to follow the decisions of the State concerning the constitution and government of that state, not the
the Circuit Court rejected, apart from rendering judgment for the tribunals, and must therefore regard the charter Federal Constitution or Government, are manifestly neither,
defendants, the plaintiff took the case for review to the Federal government as the lawful and established controlling, nor even persuasive in the present cases, having as
Supreme Court which affirmed the action of the Circuit Court, government during the time of this contest. 32 the Federal Supreme Court admitted — no authority whatsoever to
stating: pass upon such matters or to review decisions of said state court
It is thus apparent that the context within which the case of Luther thereon. In fact, referring to that case, the Supreme Court of
It is worthy of remark, however, when we are v. Borden was decided is basically and fundamentally different from Minnessota had the following to say:
referring to the authority of State decisions, that that of the cases at bar. To begin with, the case did not involve a
the trial of Thomas W. Dorr took place after the federal question, but one purely municipal in nature. Hence, the Luther v. Borden, 7 How. 1, 12 L. Ed. 581, is always
constitution of 1843 went into operation. The Federal Supreme Court was "bound to follow the decisions of the cited by those who assert that the courts have no
judges who decided that case held their authority State tribunals" of Rhode Island upholding the constitution adopted power to determine questions of a political
under that constitution and it is admitted on all under the authority of the charter government. Whatever else was character. It is interesting historically, but it
hands that it was adopted by the people of the said in that case constitutes, therefore, an obiter dictum. Besides, has not the slightest application to the case at
State, and is the lawful and established no decision analogous to that rendered by the State Court of Rhode bar. When carefully analyzed, it appears that it
government. It is the decision, therefore, of a Island exists in the cases at bar. Secondly, the states of the Union merely determines that the federal courts will
State court, whose judicial authority to decide have a measure of internal sovereignty upon which the Federal accept as final and controlling a decision of the
upon the constitution and laws of Rhode Island is Government may not encroach, whereas ours is a unitary form of highest court of a state upon a question of the
not questioned by either party to this controversy, government, under which our local governments derive their construction of the Constitution of the state. ... . 33
although the government under which it acted authority from the national government. Again, unlike our 1935
was framed and adopted under the sanction and Constitution, the charter or organic law of Rhode Island Baker v. Carr, 34 cited by respondents, involved an action to annul a
laws of the charter government. contained no provision on the manner, procedure or conditions for Tennessee statute apportioning the seats in the General Assembly
its amendment. among the counties of the State, upon the theory that the
The point, then, raised here has been already legislation violated the equal protection clause. A district court
decided by the courts of Rhode Island. The Then, too, the case of Luther v. Borden hinged more on the dismissed the case upon the ground, among others, that the issue
question relates, altogether, to the constitution question of recognition of government, than on recognition was a political one, but, after a painstaking review of the
and laws of that State, and the well settled rule in of constitution, and there is a fundamental difference between jurisprudence on the matter, the Federal Supreme
this court is, that the courts of the United States these two (2) types of recognition, the first being generally Court reversed the appealed decision and held that said issue was
adopt and follow the decisions of the State courts conceded to be a political question, whereas the nature of the justiciable and non-political, inasmuch as:"... (d)eciding whether a
in questions which concern merely the latter depends upon a number of factors, one of them being matter has in any measure been committed by the Constitution
constitution and laws of the State. whether the new Constitution has been adopted in the manner to another branch of government, or whether the action of that
prescribed in the Constitution in force at the time of the purported branch exceeds whatever authority has been committed, is itself a
Upon what ground could the Circuit Court of the ratification of the former, which is essentially a justiciable question. delicate exercise in constitutional interpretation, and is a
United States which tried this case have departed There was, in Luther v. Borden, a conflict responsibility of this Court as ultimate interpreter of the
from this rule, and disregarded and overruled the between two (2) rival governments, antagonistic to each other, Constitution ... ."
decisions of the courts of Rhode which is absent in the present cases. Here, the Government
Island? Undoubtedly the courts of the United established under the 1935 Constitution is the very same Similarly, in Powell v. McCormack, 35 the same Court, speaking
States have certain powers under the government whose Executive Department has urged the adoption through then Chief Justice Warren, reversed a decision of the Court
of the new or revised Constitution proposed by the 1971
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of Appeals of New York affirming that of a Federal District Court, controversy as to whether some action denominated and void "(i)nasmuch as the ratification process" prescribed "in the
dismissing Powell's action for a declaratory judgment declaring "political" exceeds constitutional authority." 37 1935 Constitution was not followed."
thereunder that he — whose qualifications were uncontested —
had been unlawfully excluded from the 90th Congress of the U.S. III Besides adopting substantially some of the grounds relied upon by
Said dismissal was predicated upon the ground, inter alia, that the the petitioners in the above-mentioned cases, the petitioners in L-
issue was political, but the Federal Supreme Court held that it was Has the proposed new or revised Constitution been ratified 36283 argue that "(t)he creation of the Citizens' Assemblies as the
clearly a justiciable one. conformably to said Art. XV of the 1935 Constitution? vehicle for the ratification of the Constitution was a deception upon
the people since the President announced the postponement of the
The Supreme Court of Minnessota undertook a careful review of Petitioners in L-36142 maintain the negative view, upon ground: 1) January 15, 1973 plebiscite to either February 19 or March 5,
American jurisprudence on the matter. Owing to the lucidity of its that the President "is without authority to create the Citizens' 1973." 38
appraisal thereof, We append the same to this opinion as Annex A Assemblies" through which, respondents maintain, the proposed
thereof. new Constitution has been ratified; that said Assemblies "are The reasons adduced by the petitioners in L-36165 in favor of the
without power to approve the proposed Constitution"; 3) that the negative view have already been set forth earlier in this opinion.
After an, exhaustive analysis of the cases on this subject, the Court President "is without power to proclaim the ratification by the Hence, it is unnecessary to reproduce them here. So it is, with
concluded: Filipino people of the proposed Constitution"; and 4) that "the respect to the positions taken in L-36165 by counsel for therein
election held (in the Citizens' Assemblies) to ratify the proposed respondents Gil J. Puyat and Jose Roy — although more will be said
The authorities are thus practically uniform in Constitution was not a free election, hence null and void." later about them — and by the Solicitor General, on behalf of the
holding that whether a constitutional amendment other respondents in that case and the respondents in the other
has been properly adopted according to the Apart from substantially reiterating these grounds support of said cases.
requirements of an existing Constitution is a negative view, the petitioners in L-36164 contend: 1) that the
judicial question. There can be little doubt that President "has no power to call a plebiscite for the ratification or 1. What is the procedure prescribed by the 1935 Constitution for its
the consensus of judicial opinion is to the effect rejection" of the proposed new Constitution or "to appropriate amendment?
that it is the absolute dutyof the judiciary to funds for the holding of the said plebiscite"; 2) that the proposed
determine whether the Constitution has been new or revised Constitution "is vague and incomplete," as well as Under section 1 of Art. XV of said Constitution, three (3) steps are
amended in the manner required by the "contains provisions which are beyond the powers of the 1971 essential, namely:
Constitution, unless a special tribunal has been Convention to enact," thereby rendering it "unfit for ... submission
created to determine the question; and even then the people;" 3) that "(t)he period of time between November 1972 1. That the amendments to the Constitution be proposed either by
many of the courts hold that the tribunal cannot when the 1972 draft was approved and January 11-15, 1973," when Congress or by a convention called for that purpose, "by a vote of
be permitted to illegally amend the organic law. the Citizens' Assemblies supposedly ratified said draft, "was too three-fourths of all the Members of the Senate and the House of
... . 36 short, worse still, there was practically no time for the Citizens' Representatives voting separately," but "in joint session
Assemblies to discuss the merits of the Constitution which the assembled";
In the light of the foregoing, and considering that Art. XV of our majority of them have not read a which they never knew would be
1935 Constitution prescribes the method or procedure for its submitted to them ratification until they were asked the question 2. That such amendments be "submitted to the people for their
amendment, it is clear to my mind that the question whether or not — "do you approve of the New Constitution?" during the said days ratification" at an "election"; and
the revised Constitution drafted by the 1971 Constitutional of the voting"; and that "(t)here was altogether no freedom
Convention has been ratified in accordance with said Art. XV is a discussion and no opportunity to concentrate on the matter
3. That such amendments be "approved by a majority of the votes
justiciable one and non-political in nature, and that it is not only submitted to them when the 1972 draft was supposedly submitted
cast" in said election.
subject to judicial inquiry, but, also, that it is the Court's to the Citizens' Assemblies for ratification."
bounden duty to decide such question.
Compliance with the first requirement is virtually conceded,
Petitioner in L-36236 added, as arguments in support of the
although the petitioners in L-36164 question the authority of the
The Supreme Court of the United States has meaningfully negative view, that : 1) "(w)ith a government-controlled press,
1971 Constitutional Convention to incorporate certain provisions
postulated that "the courts cannot reject as 'no law suit' " — there can never be a fair and proper submission of the proposed
into the draft of the new or revised Constitution. The main issue in
because it allegedly involves a political question — "a bona fide Constitution to the people"; and 2) Proclamation No. 1102 is null
Page 16 of 158

these five (5) cases hinges, therefore, on whether or not the last decide, save those involving the right to that those lacking the qualifications therein prescribed
two (2) requirements have been complied with. vote, all administrative questions, affecting may not exercise such right. This view is borne out by the records of
elections, including the determination of the the Constitutional Convention that drafted the 1935 Constitution.
2. Has the contested draft of the new or revised Constitution been number and location of polling places, and the Indeed, section 1 of Art. V of the 1935 Constitution was largely
submitted to the people for their ratification conformably to Art. XV appointment of election inspectors and of other based on the report of the committee on suffrage of the
of the Constitution? election officials. All law enforcement agencies Convention that drafted said Constitution which report was, in turn,
and instrumentalities of the Government, when so "strongly influenced by the election laws then in force in the
In this connection, other provisions of the 1935 Constitution required by the Commission, shall act as its Philippines ... ." 40 " Said committee had recommended: 1) "That
concerning "elections" must, also, be taken into account, namely, deputiesfor the purpose of insuring fee, orderly, the right of suffrage should exercised only by male citizens of the
section I of Art. V and Art. X of said Constitution. The former reads: and honest elections. The decisions, orders, and Philippines." 2) "That should be limited to those who could read
rulings of the Commission shall be subject to and write." 3) "That the duty to vote should be made obligatory." It
review by the Supreme Court. appears that the first recommendation was discussed extensively in
Section 1. Suffrage may be exercised by male
the Convention, and that, by way of compromise, it was eventually
citizens of the Philippines not otherwise
xxx xxx xxx 39 agreed to include, in section 1 of Art. V of the Constitution, the
disqualified by law, who are twenty-one years of
second sentence thereof imposing upon the National Assembly
age or over and are able to read and write, and
a. Who may vote in a plebiscite under Art. V of the established by the original Constitution — instead of the bicameral
who shall have resided in the Philippines for one
Constitution? Congress subsequently created by amendment said Constitution —
year and in the municipality wherein they
the duty to "extend the right of suffrage women, if in a plebiscite
propose to vote for at least six months preceding
to, be held for that purpose within two years after the adoption of
the election. The National Assembly shall extend Petitioners maintain that section 1 of Art. V of the Constitution is a
this Constitution, not less than three hundred thousand women
the right of suffrage to women, if in a plebiscite limitation upon the exercise of the right of suffrage. They claim that
possessing the necessary qualifications shall vote affirmatively on
which shall be held for that purpose within two no other persons than "citizens of the Philippines not otherwise
the question." 41
years after the adoption of this Constitution, not disqualified by law, who are twenty-one years of age or over and
less than three hundred thousand women are able to read and write, and who shall have resided in the
possessing the necessary qualifications shall vote Philippines for one year and in the municipality wherein they The third recommendation on "compulsory" voting was, also
affirmatively on the question. propose to vote for at least six months preceding the election," may debated upon rather extensively, after which it was rejected by the
exercise the right of suffrage in the Philippines. Upon the other Convention. 42 This accounts, in my opinion, for the permissive
hand, the Solicitor General contends that said provision language used in the first sentence of said Art. V. Despite some
Sections 1 and 2 of Art. X of the Constitution ordain in part:
merely guarantees the right of suffrage to persons possessing the debates on the age qualification — amendment having been
aforementioned qualifications and none of the disqualifications, proposed to reduce the same to 18 or 20, which were rejected, and
Section 1. There shall be
prescribed by law, and that said right may be vested by competent the residence qualification, as well as the disqualifications to the
an independent Commission on Elections
authorities in persons lacking some or all of the aforementioned exercise of the right of suffrage — the second
composed of a Chairman and two other Members
qualifications, and possessing some of the aforesaid recommendation limiting the right of suffrage to those who could
to be appointed by the President with the
disqualifications. In support of this view, he invokes the permissive "read and write" was — in the language of Dr. Jose M. Aruego, one
consent of the Commission on Appointments,
nature of the language — "(s)uffrage may be exercised" — used in of the Delegates to said Convention — "readily approved in the
who shall hold office for a term of nine years and
section 1 of Art. V of the Constitution, and the provisions of the Convention without any dissenting vote," although there was some
may not be reappointed. ...
Revised Barrio Charter, Republic Act No. 3590, particularly sections debate on whether the Fundamental Law should specify the
4 and 6 thereof, providing that citizens of the Philippines "eighteen language or dialect that the voter could read and write, which was
xxx xxx xxx decided in the negative. 43
years of age or over," who are registered in the list of barrio
assembly members, shall be members thereof and may participate
Sec. 2. The Commission on Elections shall What is relevant to the issue before Us is the fact that the
as such in the plebiscites prescribed in said Act.
have exclusive charge of the enforcement and constitutional provision under consideration was meant to be and
administration of all laws relative to the conduct is a grant or conferment of a right to persons possessing the
I cannot accept the Solicitor General's theory. Art. V of the
of elections and shall exercise all other functions qualifications and none of the disqualifications therein mentioned,
Constitution declares who may exercise the right of suffrage, so
which may be conferred upon it by law. It shall which in turn, constitute a limitation of or restriction to said right,
Page 17 of 158

and cannot, accordingly, be dispensed with, except by "an election" or a single election, not separately or in several or favorable action of the barrio council — the approval of barrio
constitutional amendment. Obviously, every such constitutional distinct elections, and that the proposed amendment sought to be assembly through a plebiscite, lesser qualifications than those
grant or conferment of a right is necessarily a negation of the submitted to a plebiscite was not even a complete amendment, but prescribed in dealing with ordinary measures for which such
authority of Congress or of any other branch of the Government to a "partial amendment" of said section 1, which could be amended plebiscite need not be held.
deny said right to the subject of the grant — and, in this sense only, further, after its ratification, had the same taken place, so that the
may the same partake of the nature of a guarantee. But, this does aforementioned partial amendment was, for legal purposes, no It is similarly inconceivable that those who drafted the 1935
not imply not even remotely, that the Fundamental Law allows more than a provisional or temporary amendment. Said partial Constitution intended section 1 of Art. V thereof to apply only to
Congress or anybody else to vest in those lacking the qualifications amendment was predicated upon the generally accepted elections of public officers, not to plebiscites for the ratification of
and having the disqualifications mentioned in the Constitution the contemporary construction that, under the 1935 Constitution, amendments to the Fundamental Law or revision thereof, or of an
right of suffrage. persons below twenty-one (21) years of age could not exercise the entirely new Constitution, and permit the legislature to require
right of suffrage, without a previous amendment of the lesser qualifications for such ratification, notwithstanding the fact
At this juncture, it is noteworthy that the committee on suffrage Constitution. that the object thereof much more important — if not
responsible for the adoption of section 1 of Art. V of the fundamental, such as the basic changes introduced in the draft of
Constitution was "strongly influenced by the election laws then in Upon the other hand, the question, whether 18-year-old members the revised Constitution adopted by the 1971 Constitutional
force in the Philippines." Our first Election Law was Act 1582, of barrio assemblies may vote in barrio assembly plebiscites is, to Convention, which a intended to be in force permanently, or, at
passed on January 9, 1907, which was partly amended by Acts say the least, a debatable one. Indeed, there seems to be a conflict least, for many decades, and to affect the way of life of the nation
1669, 1709, 1726 and 1768, and incorporated into the between the last paragraph of said section 6 of Rep. Act No. — and, accordingly, demands greater experience and maturity on
Administrative Code of 1916 — Act 2657 — as chapter 20 thereof, 3590, 46 pursuant to which the "majority vote of all the barrio the part of the electorate than that required for the election of
and then in the Administrative Code of 1917 — Act 2711 — as assembly members" (which include all barrio residents 18 years of public officers, 49 whose average term ranges from 2 to 6 years.
chapter 18 thereof, which, in turn, was amended by Act 3387, age or over, duly registered in the list of barrio assembly members)
approved on December 3, 1927. Sections 431 and 432 of said Code is necessary for the approval, in an assembly plebiscite, of "any It is admitted that persons 15 years of age or over, but below 21
of 1917, prescribing, respectively, the qualifications for and budgetary, supplemental appropriations or special tax ordinances," years, regardless of whether or not they possessed the other
disqualifications from voting, are quoted below. 44 In all of these whereas, according to the paragraph preceding the penultimate qualifications laid down in both the Constitution and the present
legislative acts, the provisions concerning the qualifications of one of said section, 47 "(a)ll duly registered barrio assembly Election Code, 50 and of whether or not they are disqualified under
voters partook of the nature of a grant or recognition of the right of members qualified to vote" — who, pursuant to section 10 of the the provisions of said Constitution and Code, 51 or those of Republic
suffrage, and, hence, of a denial thereof to those who lacked the same Act, must be citizens "of the Philippines, twenty-one years of Act No. 3590, 52have participated and voted in the Citizens'
requisite qualification and possessed any of the statutory age or over, able to read and write," and residents the barrio Assemblies that have allegedly ratified the new or revised
disqualifications. In short, the history of section 1, Art. V of the "during the six months immediately preceding election, duly Constitution drafted by the 1971 Constitutional Convention.
Constitution, shows beyond doubt than the same conferred — not registered in the list of voters" and " otherwise disqualified ..." —
guaranteed — the authority to persons having the qualifications just like the provisions of present and past election codes of the In fact, according to the latest official data, the total number of
prescribed therein and none of disqualifications to be specified in Philippines and Art. V of the 1935 Constitution — "may vote in the registered voters 21 years of age or over in the entire Philippines,
ordinary laws and, necessary implication, denied such right to those plebiscite." available in January 1973, was less than 12 million. Yet,
lacking any said qualifications, or having any of the aforementioned Proclamation No. 1102 states that 14,976,56 "members of all the
disqualifications. I believe, however, that the apparent conflict should resolved in Barangays (Citizens Assemblies) voted for the adoption of the
favor of the 21-year-old members of the assembly, not only proposed Constitution, as against ... 743,869 who voted for its
This view is further bolstered by the fact that the 1971 because this interpretation is in accord with Art. V the Constitution, rejection," whereas, on the question whether or not the people still
Constitutional Convention sought the submission to a plebiscite of but, also, because provisions of a Constitution — particularly of a wanted a plebiscite to be called to ratify the new Constitution, "...
a "partial amendment" to said section 1 of Art. V of the 1935 written and rigid one, like ours generally accorded a mandatory 14,298,814 answered that there was no need for a plebiscite and
Constitution, by reducing the voting age from twenty-one (21) status — unless the intention to the contrary is manifest, which is that the vote of the Barangays (Citizens Assemblies) should be
years to eighteen (18) years, which, however, did not materialize on not so as regards said Art. V — for otherwise they would not have considered as a vote in a plebiscite." In other words, it is conceded
account of the decision of this Court in Tolentino v. Commission on been considered sufficiently important to be included in the that the number of people who allegedly voted at the Citizens'
Elections, 45 granting the writs, of prohibition and injunction therein Fundamental Law of the land. 48 Besides, it would be illogical, if not Assemblies for exceeded the number of registered voters under the
applied for, upon the ground that, under the Constitution, all of the absurd, believe that Republic Act No. 3590 requires, for the most Election Code in force in January 1973.
amendments adopted by the Convention should be submitted in important measures for which it demands — in addition to
Page 18 of 158

It is thus clear that the proceedings held in such Citizens' It seems to us that a vote is cast when if Art. X thereof did not explicitly declare that it (the Commission) is
Assemblies — and We have more to say on this point in subsequent a ballot is deposited indicating a "choice." ... The an "independent" body. In other words, in amending the original
pages — were fundamentally irregular, in that persons lacking the word "cast" means "deposit (a ballot) formally or 1935 Constitution, by inserting therein said Art. X, on the
qualifications prescribed in section 1 of Art. V of the Constitution officially ... . Commission on Elections, the purpose was to make said
were allowed to vote in said Assemblies. And, since there is no Commission independent principally of the Chief Executive.
means by which the invalid votes of those less than 21 years of age ... In simple words, we would define a "vote cast"
can be separated or segregated from those of the qualified voters, as the exercise on a ballot of the choice of the And the reason therefor is, also, obvious. Prior to the creation of
the proceedings in the Citizens' Assemblies must be considered null voter on the measure proposed. 58 the Commission on Elections as a constitutional organ, election
and void. 53 laws in the Philippines were enforced by the then Department of
In short, said Art. XV envisages — with the term "votes cast" — the Interior, through its Executive Bureau, one of the offices under
It has been held that "(t)he power to reject an entire poll ... should choices made on ballots — not orally or by raising — by the persons the supervision and control of said Department. The same — like
be exercised ... in a case where it is impossible to ascertain with taking part in plebiscites. This is but natural and logical, for, since other departments of the Executive Branch of the Government —
reasonable certainty the true vote," as where "it is impossible to the early years of the American regime, we had adopted the was, in turn, under the control of the Chief Executive, before the
separate the legal votes from the illegal or spurious ... ." 54 Australian Ballot System, with its major characteristics, adoption of the 1935 Constitution, and had been — until the
namely, uniform official ballots prepared and furnished by the abolition of said Department, sometime ago — under the control of
In Usman v. Commission on Elections, et al., 55 We held: Government and secrecy in the voting, with the advantage of the President of the Philippines, since the effectivity of said
keeping records that permit judicial inquiry, when necessary, into Fundamental Law. Under the provisions thereof, the Executive
Several circumstances, defying exact description the accuracy of the election returns. And the 1935 Constitution has could so use his power of control over the Department of the
and dependent mainly on the factual milieu of the been consistently interpreted in all plebiscites for the ratification Interior and its Executive Bureau as to place the minority party at
particular controversy, have the effect of rejection of proposed amendments thereto, from 1935 to 1967. such a great, if not decisive, disadvantage, as to deprive it, in effect,
destroying the integrity and authenticity of Hence, the viva voce voting in the Citizens' Assemblies was and is of the opportunity to defeat the political party in power, and,
disputed election returns and of avoiding null and void ab initio. hence, to enable the same to perpetuate itself therein. To forestall
their prima facie value and character. If this possibility, the original 1935 Constitution was amended by the
satisfactorily proven, although in a summary b. How should the plebiscite be held? (COMELEC supervision establishment of the Commission on Elections as a constitutional
proceeding, such circumstances as alleged by the indispensable; essential requisites) body independent primarily of the President of the Philippines.
affected or interested parties, stamp the election
returns with the indelible mark of falsity and Just as essential as compliance with said Art. V of the 19 The independence of the Commission was sought to be
irregularity, and, consequently, of unreliability, Constitution is that of Art. X thereof, particularly its sections 1 and strengthened by the long term of office of its members — nine (9)
and justify their exclusion from the canvass. 2. Indeed, section 1 provides that "(t)here shall be years, except those first appointed 59 — the longest under the
an independent Commission on Elections ... ." The point to be Constitution, second only to that of the Auditor General 60; by
Then, too, the 1935 Constitution requires "a majority of the votes stressed here is the term "independent." Indeed, why was the term providing that they may not be removed from office except by
cast" for a proposed amendment to the Fundamental Law to be used? impeachment, placing them, in this respect, on the same plane as
"valid" as part thereof, and the term "votes cast" has a well-settled the President, the Vice-President, the Justices of the Supreme Court
meaning. and the Auditor General; that they may not be reappointed; that
In the absence of said constitutional provision as to the
their salaries, "shall be neither increased nor diminished during
independence of the Commission, would it have been depends
their term of office"; that the decisions the Commission "shall be
The term "votes cast" ... was held in Smith v. upon either Congress or the Judiciary? The answer must be the
subject to review by the Supreme Court" only 61; that "(n)o pardon,
Renville County Commissioners, 65 N.W. 956, 64 negative, because the functions of the Commission —
parole, or suspension sentence for the violation of any election law
Minn. 16, to have been used as an equivalent of "enforcement and administration" of election laws — are neither
may be granted without the favorable recommendation of the
"ballots cast." 56 legislative nor judicial in nature, and, hence, beyond the field
Commission"62; and, that its chairman and members "shall not,
allocated to either Congress or courts of justice. Said functions are
during the continuance in office, engage in the practice of any
The word "cast" is defined as "to deposit formally by their nature essentially executive, for which reason, the
profession or intervene, directly or indirectly, in the management
or officially." 57 Commission would be under the "control" of the President,
or control of any private enterprise which in anyway may affected
pursuant to section 10, paragraph (1) of Art. VII of the Constitution,
by the functions of their office; nor shall they, directly or indirectly,
Page 19 of 158

be financially interested in any contract with the Government or appreciation of ballots and the preparation and disposition of elections of public officers except barrio officials and
any subdivision or instrumentality thereof." 63 Thus, the framers of election returns; the constitution and operation of municipal, plebiscites shall be conducted in the manner provided by this
the amendment to the original Constitution of 1935 endeavored to provincials and national boards of canvassers; the presentation of Code." General Order No. 20, dated January 7, 1973, postponing
do everything possible protect and insure the independence of the political parties and/or their candidates in each election until further notice, "the plebiscite scheduled to be held on January
each member of the Commission. precinct; the proclamation of the results, including, in the case of 15, 1973," said nothing about the procedure to be followed in
election of public officers, election contests; and the jurisdiction of plebiscite to take place at such notice, and no other order or decree
With respect to the functions thereof as a body, section 2 of said courts of justice in cases of violation of the provisions of said has been brought to Our attention, expressly or impliedly repealing
Art. X ordains that "(t)he Commission on Elections shall Election Code and the penalties for such violations. the provisions of Presidential Decree 73, insofar as said procedure
have exclusive charge of the enforcement and administration all is concerned.
laws relative to the conduct of elections," apart from such other Few laws may be found with such meticulous and elaborate set of
"functions which may be conferred upon it by law." It further provisions aimed at "insuring free, orderly, and honest election," as Upon the other hand, said General Order No. 20 expressly
provides that the Commission "shall decide, save those involving envisaged in section 2 of Art. X of the Constitution. Yet, none of the suspended "the provisions of Section 3 of Presidential Decree No.
the right to vote, all administrative question affecting elections, foregoing constitutional and statutory provisions was followed by 73 insofar as they allow free public discussion of proposed
including the determination of the number and location of polling the so-called Barangays or Citizens' Assemblies. And no reasons Constitution ... temporarily suspending effects of Proclamation No.
places, and the appointment of election inspectors and of other have been given, or even sought to be given therefor. In many, if 1081 for the purposes of free open dabate on the proposed
election officials." And, to forests possible conflicts or frictions not most, instances, the election were held a viva voce, thus Constitution ... ." This specific mention of the portions of the
between the Commission, on one hand, and the other offices or depriving the electorate of the right to vote secretly — one of the decrees or orders or instructions suspended by General Order No.
agencies of the executive department, on the other, said section 2 most, fundamental and critical features of our election laws from 20 necessarily implies that all other portions of said decrees, orders
postulates that "(a)ll law enforcement agencies and time immemorial — particularly at a time when the same was or instructions — and, hence, the provisions of Presidential Decree
instrumentalities of the Government, when so required by the of utmost importance, owing to the existence of Martial Law. No. 73 outlining the procedure to be followed in the plebiscite for
Commission, shall act as its deputies for the purpose of insuring ratification or rejection of the proposed Constitution — remained in
free, orderly, and honest elections." Not satisfied with this, it In Glen v. Gnau, 65 involving the casting of many votes, openly, force, assuming that said Decree is valid.
declares, in effect, that "(t)he decisions, orders, and ruling of the without complying with the requirements of the law pertinent
Commission" shall not be subject to review, except by the Supreme thereto, it was held that the "election officers" involved "cannot be It is claimed that by virtue of Presidential Decree No. 86-A — the
Court. too strongly condemned" therefor and that if they "could legally text of which is quoted below 67 — the Executive declared, inter
dispense with such requirement ... they could with equal propriety alia, that the collective views expressed in the Citizens' Assemblies
In accordance with the letter and spirit of said Art. X of the dispense with all of them, including the one that the vote shall be by "shall be considered in the formulation of national policies or
Constitution, Rep. Act No. 6388, otherwise known as the Election secret ballot, or even by ballot programs and, wherever practicable, shall be translated into
Code of 1971, implements the constitutional powers of the at all ... ." concrete and specific decision"; that such Citizens' Assemblies "shall
Commission on Elections and grants additional powers thereto, consider vital national issues ... like the holding of the plebiscite on
some of which are enumerated in sections 5 and 6 of said Act, Moreover, upon the formal presentation to the Executive of the the new Constitution ... and others in the future, which shall serve
quoted below. 64 Moreover, said Act contains, inter alia, detailed proposed Constitution drafted by the 1971 Constitutional as guide or basis for action or decision by the national
provisions regulating contributions and other (corrupt) practices; Convention, or on December 1, 1972, Presidential Decree No. 73 government"; and that the Citizens' Assemblies "shall conduct
the establishment of election precincts; the designation and (on the validity of which — which was contested in the plebiscite between January 10 and 15, 1973, a referendum on important
arrangement of polling places, including voting booths, to protect cases, as well as in the 1972 habeas corpus cases 66 — We need not, national issues, including those specified in paragraph 2 hereof, and
the secrecy of the ballot; formation of lists of voters, the in the case of bar, express any opinion) was issued, calling a submit the results thereof to the Department of Local Governments
identification and registration of voters, the proceedings therefor, plebiscite, to be held on January 15, 1973, at which the proposed and Community Development immediately thereafter, ... ." As in
as well as for the inclusion in, or exclusion or cancellation from said Constitution would be submitted to the people for ratification or Presidential Decree No. 86, this Decree No. 86-A does not and
list and the publication thereof; the establishment of municipal, rejection; directing the publication of said proposed Constitution; cannot exclude the exercise of the constitutional supervisory power
provincial and files of registered voters; the composition and and declaring, inter alia, that "(t)he provision of the Election Code of the Commission on Elections or its participation in the
appointment of board of election inspectors; the particulars of the of 1971, insofar as they are not inconsistent" with said decree — proceedings in said Assemblies, if the same had been intended to
official ballots to be used and the precautions to be taken to insure excepting those "regarding right and obligations of political parties constitute the "election" or Plebiscite required Art. V of the 1935
authenticity thereof; the procedure for the casting of votes; the and candidates" — "shall apply to the conduct of the plebiscite." Constitution. The provision of Decree No. 86-A directing the
counting of votes by boards of inspectors; the rules for the Indeed, section 2 of said Election Code of 1971 provides that "(a)ll immediate submission of the result thereof to the Department of
Page 20 of 158

Local Governments Community Development is not necessarily Citizens' Assemblies, insofar as the same are claimed to have restraining and controlling of the people, acting
inconsistent with, and must be subordinate to the constitutional ratified the revised Constitution proposed by the 1971 through the agency of the judiciary; for it must be
power of the Commission on Elections to exercise its "exclusive Constitutional Convention. "... (a)ll the authorities agree that the remembered that the people act through courts,
authority over the enforcement and administration of all laws to legal definition of an election, as well as that which is usually and as well as through the executive or the
the conduct of elections," if the proceedings in the Assemblies ordinarily understood by the term, is a choosing or as election by Legislature. One department is just as
would partake of the nature of an "election" or plebiscite for the those having a right to participate (in the selection) of those who representative as the other, and the judiciary is
ratification or rejection of the proposed Constitution. shall fill the offices, or of the adoption or rejection of any public the department which is charged with the special
measure affecting the territory involved. 15 Cyc. 279; Lewis v. duty of determining the limitations which the law
We are told that Presidential Decree No. 86 was further amended Boynton, 25 Colo. 486, 55 Pac. 732; Saunders v. Haynes, 13 Cal. places upon all official action. ... .
by Presidential Decree No. 86-B, dated 1973, ordering "that 145; Seaman v. Baughman, 82 Iowa 216, 47 N.W. 1091, 11 L.R.A.
important national issues shall from time to time; be referred to 354; State v. Hirsh, 125 Ind. 207, 24 N.E. 1062, 9 L.R.A. 170; Accordingly, the issue boils downs to whether or not the Executive
the Barangays (Citizens Assemblies) for resolution in accordance Bouvier's Law Dictionary. 68 acted within the limits of his authority when he certified in
with Presidential Decree No. 86-A dated January 5, 1973 and that Proclamation No. 1102 "that the Constitution proposed by the
the initial referendum include the matter of ratification of the IV nineteen hundred and seventy-one (1971) Constitutional
Constitution by the 1971 Constitutional Convention" and that "(t)he Convention has been ratified by an overwhelming majority of all of
Secretary of the Department of Local Governments and Community Has the proposed Constitution aforementioned the votes cast by the members of all the Barangays (Citizens
Development shall insure the implementation of this order." As in been approved by a majority of the people in Assemblies) throughout the Philippines and has thereby come into
the case of Presidential Decrees Nos. 86 and 86-A, the foregoing Citizens' Assemblies allegedly held effect."
directives do not necessarily exclude exercise of the powers vested throughout the Philippines?
by the 1935 Constitution in the Commission on Elections, even if In this connection, it is not claimed that the Chief Executive had
the Executive had the authority to repeal Art. X of our Fundamental Respondents maintain the affirmative, relying upon Proclamation personal knowledge of the data he certified in said proclamation.
Law — which he does not possess. Copy of Presidential Decree No. No. 1102, the validity of which is precisely being contested by Moreover, Art. X of the 1935 Constitution was precisely inserted to
86-B is appended hereto as Annex B hereof. petitioners herein. Respondents claim that said proclamation is place beyond the Executive the power to supervise or even
"conclusive" upon this Court, or is, at least, entitled to full faith and exercise any authority whatsoever over "all laws relative to the
The point is that, such of the Barrio Assemblies as were held took credence, as an enrolled bill; that the proposed Constitution has conduct of elections," and, hence, whether the elections are for the
place without the intervention of the Commission on Elections, and been, in fact, ratified, approved or adopted by the "overwhelming" choice or selection of public officers or for the ratification or
without complying with the provisions of the Election Code of 1971 majority of the people; that Art. XV of the 1935 Constitution has rejection of any proposed amendment, or revision of the
or even of those of Presidential Decree No. 73. What is more, they thus been "substancially" complied with; and that the Court refrain Fundamental Law, since the proceedings for the latter are, also,
were held under the supervision of the very officers and agencies of from passing upon the validity of Proclamation No. 1102, not only referred to in said Art. XV as "elections".
the Executive Department sought to be excluded therefrom by Art. because such question is political in nature, but, also, because
X of the 1935 Constitution. Worse still, said officers and agencies of should the Court invalidate the proclamation, the former would, in The Solicitor General stated, in his argument before this Court, that
the 1935 Constitution would be favored thereby, owing to the effect, veto the action of the people in whom sovereignty resides he had been informed that there was in each municipality a
practical indefinite extension of their respective terms of office in and from its power are derived. municipal association of presidents of the citizens' assemblies for
consequence of section 9 of the Transitory Provisions, found in Art. each barrio of the municipality; that the president of each such
XVII of the proposed Constitution, without any elections therefor. The major flaw in this process of rationalization is that it assumes, municipal association formed part of a provincial or city association
And the procedure therein mostly followed is such that there is no as a fact, the very premise on which it is predicated, and which, of presidents of such municipal associations; that the president of
reasonable means of checking the accuracy of the returns files by moreover, is contested by the petitioners. As the Supreme Court of each one of these provincial or city associations in turn formed part
the officers who conducted said plebiscites. This is another patent Minnessota has aptly put it — of a National Association or Federation of Presidents of such
violation of Art. of the Constitution which can hardly be sanctioned. Provincial or City Associations; and that one Francisco Cruz from
And, since the provisions of this article form part of Pasig, Rizal, as President of said National Association or Federation,
... every officer under a constitutional government
the fundamental scheme set forth in the 1935 Constitution, as reported to the President of the Philippines, in the morning of
must act according to law and subject to its
amended, to insure the "free, orderly, and honest" expression of January 17, 1973, the total result of the voting in the citizens'
restrictions, and every departure therefrom or
the people's will, the aforementioned violation thereof renders null assemblies all over the country from January 10 to January 15,
disregard thereof must subject him to the
and void the contested proceedings or alleged plebiscite in the 1973. The Solicitor General further intimated that the said
Page 21 of 158

municipal associations had reported the results of the citizens' Constitution, is not conclusive upon the courts. It is no State v. Mason, 45 Wash. 234, 88 Pac. 126, 9 L.R.A. (U.S.) 1221. It
assemblies in their respective municipalities to the corresponding more than prima facie evidence of what is attested to by said is settled law that the decisions of election officers, and canvassing
Provincial Association, which, in turn, transmitted the results of the resolution. 70 If assailed directly in appropriate proceedings, such as boards are not conclusive and that the final decision must rest with
voting in the to the Department of Local Governments and an election protest, if and when authorized by law, as it is in the the courts, unless the law declares that the decisions of the board
Community Development, which tabulated the results of the voting Philippines, the Court may receive evidence and declare, in shall be final" — and there is no such law in the cases at bar. "...
in the citizens' assemblies throughout the Philippines and then accordance therewith, who was duly elected to the office The correctness of the conclusion of the state board rests upon the
turned them over to Mr. Franciso Cruz, as President or acting involved. 71 If prior to the creation of the Presidential Electoral correctness of the returns made by the county boards and it
President of the National Association or Federation, whereupon Tribunal, no such protest could be filed, it was not because the is inconceivable that it was intended that this statement of result
Mr. Cruz, acting in a ceremonial capacity, reported said results resolution of Congress declaring who had been elected President or should be final and conclusive regardless of the actual facts. The
(tabulated by the Department of Governments and Community Vice-President was conclusive upon courts of justice, but because proclamation of the Governor adds nothing in the way of
Development) to the Chief Executive, who, accordingly, issued there was no law permitting the filing of such protest and conclusiveness to the legal effect of the action of the canvassing
Proclamation No. 1102. declaring what court or body would hear and decide the same. So, board. Its purpose is to formally notify the people of the state of
too, a declaration to the effect that a given amendment to the the result of the voting as found by the canvassing board. James on
The record shows, however, that Mr. Cruz was not even a Constitution or revised or new Constitution has been ratified by a Const. Conv. (4th Ed.) sec. 523."
member of any barrio council since 1972, so that he could possibly majority of the votes cast therefor, may be duly assailed in court
have been a member on January 17, 1973, of and be the object of judicial inquiry, in direct proceedings therefor In Bott v. Wartz, 73 the Court reviewed the statement of results of
a municipal association of presidents of barrio or ward citizens' — such as the cases at bar — and the issue raised therein may and the election made by the canvassing board, in order that the true
assemblies, much less of a Provincial, City or National Association or should be decided in accordance with the evidence presented. results could be judicially determined. And so did the court in Rice
Federation of Presidents of any such provincial or city associations. v. Palmer. 74
The case of In re McConaughy 72 is squarely in point. "As the
Secondly, at the conclusion of the hearing of these cases February Constitution stood from the organization of the state" — of Inasmuch as Art. X of the 1935 Constitution places under the
16, 1973, and in the resolution of this Court of same date, the Minnessota — "all taxes were required to be raised under the "exclusive" charge of the Commission on Elections, "the
Solicitor General was asked to submit, together with his notes on system known as the 'general property tax.' Dissatisfaction with the enforcement and administration of all laws relative to the conduct
his oral argument, a true copy of aforementioned report of Mr. results of this method and the development of more scientific and of elections," independently of the Executive, and there is not even
Cruz to the President and of "(p)roclamation, decree, instruction, satisfactory methods of raising revenue induced the Legislature to a certification by the Commission in support of the alleged results of
order, regulation or circular, if any, creating or directing or submit to the people an amendment to the Constitution which the citizens' assemblies relied upon in Proclamation No. 1102 —
authorizing creation, establishment or organization" of said provided merely that taxes shall be uniform upon the same class of apart from the fact that on January 17, 1973 neither the alleged
municipal, provincial and national associations, but neither a copy subjects. This proposed amendment was submitted at the general president of the Federation of Provincial or City Barangays nor the
of alleged report to the President, nor a copy of any election held in November, 1906, and in due time it was certified by Department of Local Governments had certified to the President
"(p)roclamation, decree, instruction, order, regulation or circular," the state canvassing board and proclaimed by the Governor as the alleged result of the citizens' assemblies all over the Philippines
has been submitted to this Court. In the absence of said report, having been legally adopted. Acting upon the assumption that the — it follows necessarily that, from a constitutional and legal
"(p)roclamation, decree, instruction," etc., Proclamation No. 1102 is amendment had become a part of the Constitution, the Legislature viewpoint, Proclamation No. 1102 is not even prima facie evidence
devoid of any factual and legalfoundation. Hence, the conclusion enacted statutes providing for a State Tax Commission and a of the alleged ratification of the proposed Constitution.
set forth in the dispositive portion of said Proclamation No. 1102, mortgage registry tax, and the latter statute, upon the same theory,
to the effect that the proposed new or revised Constitution had was held constitutional" by said Court. "The district court found Referring particularly to the cases before Us, it will be noted that,
been ratified by majority of the votes cast by the people, can not that the amendment had no in fact been adopted, and on this as pointed out in the discussion of the preceding topic, the new or
possibly have any legal effect or value. appeal" the Supreme Court was "required to determine the revised Constitution proposed by the 1971 Constitutional
correctness of that conclusion." Convention was not ratified in accordance with the provisions of
The theory that said proclamation is "conclusive upon Court is the 1935 Constitution. In fact, it has not even been, ratified in
clearly untenable. If it were, acts of the Executive and those of Referring to the effect of the certification of the State Board of accordance with said proposed Constitution, the minimum age
Congress could not possibly be annulled or invalidated by courts of Canvassers created by the Legislature and of theproclamation made requirement therein for the exercise of the right of suffrage
justice. Yet, such is not the case. In fact, even a resolution of by the Governor based thereon, the Court held: "It will be noted being eighteen (18) years, apart from the fact that Art. VI of the
Congress declaring that a given person has been elected President that this board does no more than tabulate the reports received proposed Constitution requires "secret" voting, which was not
or Vice-President of the Philippines as provided in the from the various county board and add up and certify the results. observed in many, if not most, Citizens' Assemblies.
Page 22 of 158

Besides, both the 1935 Constitution and the proposed Constitution the plebiscite scheduled to be held on January 15, 1973, were "plebiscites," in effect, accelerated, according to the
require a "majority of the votes cast" in an election or plebiscite 1973, be postponed until further notice." Said theory of the Solicitor General, for the ratification of the proposed
called for the ratification of an amendment or revision of the first General Order No. 20, moreover, "suspended in Constitution? If said Assemblies were meant to be the plebiscites or
Constitution or the effectivity of the proposed Constitution, and the the meantime" the "order of December 17, 1972, elections envisaged in Art. XV of the Constitution, what, then, was
phrase "votes cast" has been construed to mean "votes made in temporarily suspending the effects of the "plebiscite" postponed by General Order No. 20? Under these
writing not orally, as it was in many Citizens' Assemblies. 75 Proclamation No. 1081 for purposes of free and circumstances, it was only reasonable for the people who attended
open debate on the proposed Constitution. such assemblies to believe that the same were not an "election" or
Even counsel for Gil J. Puyat and Jose Roy, as respondents in L- plebiscite for the ratification or adoption of said proposed
36165, asserts openly that Art. XV of the Constitution has not been In view of these events relative to the Constitution.
complied with, and since the alleged substantial compliance with postponement of the aforementioned plebiscite,
the requirements thereof partakes of the nature of a defense set up the Court deemed it fit to refrain, for the time And, this belief is further bolstered up by the questions
by the other respondents in these cases, the burden of proving being, from deciding the aforementioned cases, propounded in the Citizens' Assemblies, namely:
such defense — which, if true, should be within their peculiar for neither the date nor the conditions under
knowledge — is clearly on such respondents. Accordingly, if despite which said plebiscite would be held were known [1] Do you like the New Society?
the extensive notes and documents submitted by the parties or announced officially. Then again, Congress was,
herein, the members of the Court do not know or are not prepared pursuant to the 1935 Constitution, scheduled to [2] Do you like the reforms under martial law?
to say whether or not the majority of the people or of those who meet in regular session on January 22, 1973, and
took part in the Citizens' Assemblies have assented to the proposed since the main objection to Presidential Decree
[3] Do you like Congress again to hold sessions?
Constitution, the logical step would be to give due course to these No. 73 was that the President does not have the
cases, require the respondents to file their answers, and the legislative authority to call a plebiscite and
[4] Do you like the plebiscite to be held later?
plaintiffs their reply, and, thereafter, to receive the pertinent appropriate funds therefor, which Congress
evidence and then proceed to the determination of the issues unquestionably could do, particularly in view of
raised thereby. Otherwise, we would be placing upon the the formal postponement of the plebiscite by the [5] Do you like the way President Marcos is
petitioners the burden of disproving a defense set up by the President — reportedly after consultation with, running the affairs of the government? [Bulletin
respondents, who have not so far established the truth of such among others, the leaders of Congress and the Today, January 10, 1973; emphasis an additional
defense. Commission on Elections — the Court deemed it question.]
more imperative to defer its final action on these
Even more important, and decisive, than the foregoing is the cases. [6] Do you approve of the citizens assemblies as
circumstance that there is ample reason to believe that many, if not the base of popular government to decide issues
most, of the people did not know that the Citizens' Assemblies And, apparently, the parties in said cases entertained the same of national interests?
were, at the time they were held, plebiscites for the ratification or belief, for, on December 23, 1972 — four (4) days after the last
rejection of the proposed Constitution. Hence, in Our decision in hearing of said cases 76 — the President announced [7] Do you approve of the new Constitution?
the plebiscite cases, We said, inter alia: the postponement of the plebiscite scheduled by Presidential
Decree No. 73 to be held on January 15, 1973, after consultation [8] Do you want a plebiscite to be called to ratify
Meanwhile, or on December 17, 1972, the with the Commission on Elections and the leaders of Congress, the new Constitution?
President had issued an order temporarily owing to doubts on the sufficiency of the time available to translate
suspending the effects of Proclamation No. 1081, the proposed Constitution into some local dialects and to comply [9] Do you want the elections to be held in
for the purpose of free and open debate on the with some pre-electoral requirements, as well as to afford the November, 1973 in accordance with the
Proposed Constitution. On December 23, the people a reasonable opportunity to be posted on the contents and provisions of the 1935 Constitution?
President announced the postponement of the implications of said transcendental document. On January 7, 1973,
plebiscite for the ratification or rejection of the General Order No. 20 was issued formally, postponing said [10] If the elections would not be held, when do
Proposed Constitution. No formal action to this plebiscite "until further notice." How can said postponement be you want the next elections to be called?
effect was taken until January 7, 1973, when reconciled with the theory that the proceedings in the Citizens'
General Order No. 20 was issued, directing "that Assemblies scheduled to be held from January 10 to January 15,
Page 23 of 158

[11] Do you want martial law to continue? Summary of Results thereof for each municipality another instruction from the top was received to include the
[Bulletin Today, January 11, 1973] and for the whole province. original five questions among those be discussed and asked in the
Citizens' Assembly meetings. With this latest order, we again had to
To begin with, questions nos. 1, 2, 3, 4, 5, 6, 9, 10 and 11 are not xxx xxx xxx make modifications in our instructions to all those managing and
proper in a plebiscite for the ratification of a proposed Constitution supervising holding of the Citizens' Assembly meetings throughout
or of a proposed amendment thereto. Secondly, neither is the ... Our initial plans and preparations, however, province. ... As to our people, in general, their enthusiastic
language of question No. 7 — "Do you approve the new dealt only on the original five questions. participation showed their preference and readiness to accept the
Constitution?" One approves "of" the act of another which Consequently, when we received an instruction on new method of government to people consultation in shaping
does not need such approval for the effectivity of said act, which January 10 to change the questions, we urgently up government policies."
the first person, however, finds to be good, wise satisfactory. The suspended all scheduled Citizens Assembly
approval of the majority of the votes cast in plebiscite is, meetings on that day and called all Mayors, Chiefs This communication manifestly shows: 1) that, as late a January 11,
however, essential for an amendment to the Constitution to be of Offices and other government officials to 1973, the Bataan officials had still to discuss — not put into
valid as part thereof. Thirdly, if the proceedings in the Citizens' another conference to discuss with them the new operation — means and ways to carry out the changing instructions
Assemblies constituted a plebiscite question No. 8 would have been set of guidelines and materials to be used. from the top on how to organize the citizens' assemblies, what to
unnecessary and improper, regardless of whether question No. 7 do therein and even what questions or topics to propound or touch
were answered affirmatively or negatively. If the majority of the On January 11, ... another instruction from the top in said assemblies; 2) that the assemblies would involve no more
answers to question No. 7 were in the affirmative, the proposed was received to include the original five questions than consultations or dialogues between people and government
Constitution would have become effective and no other plebiscite among those to be discussed and asked in the — not decisions be made by the people; and 3) that said
could be held thereafter in connection therewith, even if the Citizens' Assembly meetings. With this latest consultations were aimed only at "shaping up government policies"
majority of the answers to question No. 8 were, also, in the order, we again had to make modifications in our and, hence could not, and did not, partake of the nature of a
affirmative. If the majority of the answers to question No. 7 were in instructions to all those managing and supervising plebiscite for the ratification or rejection of a proposed amendment
the negative, neither may another plebiscite be held, even if the the holding of the Citizens' Assembly meetings of a new or revised Constitution for the latter does not entail the
majority of the answers to question No. 8 were in the affirmative. throughout the province. ... Aside from the formulation of a policy of the Government, but the making
In either case, not more than one plebiscite could be held for the coordinators we had from the Office of the of decision by the people on the new way of life, as a nation, they
ratification or rejection of the proposed Constitution. In short, the Governor, the splendid cooperation and support wish to have, once the proposed Constitution shall have been
insertion of said two (2) questions — apart from the other extended by almost all government officials and ratified.
questions adverted to above — indicates strongly that the employees in the province, particularly of the
proceedings therein did not partake of the nature of a plebiscite or Department of Education, PC and PACD If this was the situation in Bataan — one of the provinces nearest to
election for the ratification or rejection of the proposed personnel, provided us with enough hands to Manila — as late as January 11, 1973, one can easily imagine the
Constitution. trouble shoot and implement sudden changes in predicament of the local officials and people in the remote barrios
the instructions anytime and anywhere needed. in northern and southern Luzon, in the Bicol region, in the Visayan
Indeed, I can not, in good conscience, declare that the proposed ... Islands and Mindanao. In fact, several members of the Court,
Constitution has been approved or adopted by the people in the including those of their immediate families and their household,
citizens' assemblies all over the Philippines, when it is, to my mind, ... As to our people, in general, their enthusiastic although duly registered voters in the area of Greater Manila,
a matter of judicial knowledge that there have been no such participation showed their preference and were not even notified that citizens' assemblies would be held in
citizens' assemblies in many parts of Manila and suburbs, not to readiness to accept this new method of the places where their respective residences were located. In the
say, also, in other parts of the Philippines. In a letter of Governor government to people consultation in shaping up Prohibition and Amendment case, 77 attention was called to the
Efren B. Pascual of Bataan, dated January 15, 1973, to the Chief government policies. "duty cast upon the court of taking judicial cognizance of anything
Executive, the former reported: affecting the existence and validity of any law or portion of the
Constitution ... ." In line with its own pronouncement in another
Thus, as late as January 10, 1973, the Bataan officials had
... This report includes a resumee (sic) of the case, the Federal Supreme Court of the United States stressed,
to suspend "all scheduled Citizens' Assembly meetings ..." and call
activities we undertook in effecting in Baker v. Carr, 78 that "a court is not at liberty to shut its eyes to
all available officials "... to discuss with them the new set of
the referendum on the eleven questions you an obvious mistake, when the validity of the law depends upon the
guidelines and materials to be used ... ." Then, "on January 11 ...
wanted our people consulted on and the truth of what is declared."
Page 24 of 158

In the light of the foregoing, I cannot see how the question under their acts in accordance therewith, because the are bound to obey 1. The "Governor of the State in swearing fidelity to it and
consideration can be answered or resolved otherwise than in the and act in conformity with the orders of the President, under proclaiming it, as directed thereby";
negative. whose "control" they are, pursuant to the 1935 Constitution. They
have absolutely no other choice, specially in view of Proclamation 2. The "Legislature in its formal official act adopting a joint
V No. 1081 placing the Philippines under Martial Law. Besides, by resolution, July 15, 1902, recognizing the Constitution ordained by
virtue of the very decrees, orders and instructions issued by the the Convention ...";
Have the people acquiesced in the proposed Constitution? President thereafter, he had assumed all powers of Government —
although some question his authority to do so — and, 3. The "individual oaths of its members to support it, and by its
consequently, there is hardly anything he has done since the having been engaged for nearly a year, in legislating under it and
It is urged that the present Government of the Philippines is now
issuance of Proclamation No. 1102, on January 17, 1973 — putting its provisions into
and has been run, since January 17, 1971, under the Constitution
declaring that the Constitution proposed by the 1971 Constitutional operation ...";
drafted by the 1971 Constitutional Convention; that the political
Convention has been ratified by the overwhelming majority of the
department of the Government has recognized said revised
people — that he could not do under the authority he claimed to
Constitution; that our foreign relations are being conducted under 4. The "judiciary in taking the oath prescribed thereby to support it
have under Martial Law, since September 21, 1972, except the
such new or revised Constitution; that the Legislative Department and by enforcing its provisions ..."; and
power of supervision over inferior courts and its personnel, which
has recognized the same; and that the people, in general, have, by
said proposed Constitution would place under the Supreme Court,
their acts or omissions, indicated their conformity thereto. 5. The "people in their primary capacity by peacefully accepting it
and which the President has not ostensibly exercised, except as to
and acquiescing in it, by registering as voters under it to the extent
some minor routine matters, which the Department of Justice has
As regards the so-called political organs of the Government, gather of thousands throughout the State, and by voting, under its
continued to handle, this Court having preferred to maintain
that respondents refer mainly to the offices under the Executive provisions, at a general election for their representatives in the
the status quo in connection therewith pending final determination
Department. In a sense, the latter performs some functions which, Congress of the United States."
of these cases, in which the effectivity of the aforementioned
from a constitutional viewpoint, are politics in nature, such as in Constitution is disputed.
recognizing a new state or government, in accepting diplomatic Note that the New Constitution of Virginia, drafted by a convention
representatives accredited to our Government, and even in whose members were elected directly by the people,
Then, again, a given department of the Government cannot
devising administrative means and ways to better carry into effect. was not submitted to the people for ratification or rejection
generally be said to have "recognized" its own acts. Recognition
Acts of Congress which define the goals or objectives thereof, but thereof. But, it was recognized, not by the convention itself, but
normally connotes the acknowledgment by a party of the acts
are either imprecise or silent on the particular measures to be by other sectors of the Government, namely, the Governor; the
of another. Accordingly, when a subordinate officer or office of the
resorted to in order to achieve the said goals or delegate the power Legislature — not merely by individual acts of its members, but
Government complies with the commands of a superior officer or
to do so, expressly or impliedly, to the Executive. This, by formal joint resolution of its two (2) chambers; by the judiciary;
office, under whose supervision and control he or it is, the former
notwithstanding, the political organ of a government that purports and by the people, in the various ways specified above. What is
merely obeys the latter. Strictly speaking, and from a legal and
to be republican is essentially the Congress or Legislative more, there was no martial law. In the present cases, none of the
constitutional viewpoint, there is no act of recognition involved
Department. Whatever may be the functions allocated to the foregoing acts of acquiescence was present. Worse still, there is
therein. Indeed, the lower officer or office, if he or it acted
Executive Department — specially under a written, rigid martial law, the strict enforcement of which was announced shortly
otherwise, would just be guilty of insubordination.
Constitution with a republican system of Government like ours — before the alleged citizens' assemblies. To top it all, in the Taylor
the role of that Department is inherently, basically and case, the effectivity of the contested amendment was not
fundamentally executive in nature — to "take care that the laws be Thus, for instance, the case of Taylor v. Commonwealth 80 — cited
contested judicially until about one (1) year after the amendment
faithfully executed," in the language of our 1935 Constitution. 79 by respondents herein in support of the theory of the people's
had been put into operation in all branches of the Government, and
acquiescence — involved a constitution ordained in 1902 and
complied with by the people who participated in the elections held
"proclaimed by a convention duly called by a direct vote of the
Consequently, I am not prepared to concede that the acts the pursuant to the provisions of the new Constitution. In the cases
people of the state to revise and amend the Constitution of 1869.
officers and offices of the Executive Department, in line with under consideration, the legality of Presidential Decree No. 73
The result of the work of that Convention has been recognized,
Proclamation No. 1102, connote a recognition thereof o an calling a plebiscite to be held on January 15, 1973, was impugned as
accepted and acted upon as the only valid Constitution of the
acquiescence thereto. Whether they recognized the proposed early as December 7, 1972, or five (5) weeks before the scheduled
State" by —
Constitution or acquiesce thereto or not is something that cannot plebiscite, whereas the validity of Proclamation No. 1102 declaring
legally, much less necessarily or even normally, be deduced from on January 17, 1973, that the proposed Constitution had been
Page 25 of 158

ratified — despite General Order No. 20, issued on January 7, 1972, No matter how good the intention behind these statement may the House of Representatives, concerning legislative measures
formally and officially suspending the plebiscite until further notice have been, the idea implied therein was too clear an ominous for approved by the two Houses of Congress. The argument of the
— was impugned as early as January 20, 1973, when L-36142 was any member of Congress who thought of organizing, holding or Solicitor General is, roughly, this: If the enrolled bill is entitled to full
filed, or three (3) days after the issuance of Proclamation No. 1102. taking part in a session of Congress, not to get the impression that faith and credence and, to this extent, it is conclusive upon the
he could hardly do so without inviting or risking the application of President and the judicial branch of the Government, why should
It is further alleged that a majority of the members of our House of Martial Law to him. Under these conditions, I do not feel justified in Proclamation No. 1102 merit less consideration than in enrolled
Representatives and Senate have acquiesced in the new or revised holding that the failure of the members of Congress to meet since bill?
Constitution, by filing written statements opting to serve in the Ad January 22, 1973, was due to their recognition, acquiescence in or
Interim Assembly established in the Transitory Provisions of said conformity with the provisions of the aforementioned Constitution, Before answering this question, I would like to ask the following: If,
Constitution. Individual acts of recognition by members of our or its alleged ratification. instead of being certified by the aforementioned officers of
legislature, as well as of other collegiate bodies under the Congress, the so-called enrolled bill were certified by, say, the
government, are invalid as acts of said legislature or bodies, unless For the same reasons, especially because of Proclamation No. 1081, President of the Association of Sugar Planters and/or Millers of the
its members have performed said acts in session duly assembled, or placing the entire Philippines under Martial Law, neither am I Philippines, and the measure in question were a proposed
unless the law provides otherwise, and there is no such law in the prepared to declare that the people's inaction as regards legislation concerning Sugar Plantations and Mills sponsored by said
Philippines. This is a well-established principle of Administrative Proclamation No. 1102, and their compliance with a number of Association, which even prepared the draft of said legislation, as
Law and of the Law of Public Officers, and no plausible reason has Presidential orders, decrees and/or instructions — some or many of well as lobbied actually for its approval, for which reason the
been adduced to warrant departure therefrom. 81 which have admittedly had salutary effects — issued subsequently officers of the Association, particularly, its aforementioned
thereto amounts, constitutes or attests to a ratification, adoption president — whose honesty and integrity are unquestionable —
Indeed, if the members of Congress were generally agreeable to the or approval of said Proclamation No. 1102. In the words of the were present at the deliberations in Congress when the same
proposed Constitution, why did it become necessary to padlock its Chief Executive, "martial law connotespower of the gun, approved the proposed legislation, would the enrolled bill rule
premises to prevent its meeting in session on January 22, 1973, and meant coercion by the military, apply thereto? Surely, the answer would have to be in the negative.
thereafter as provided in the 1935 Constitution? It is true that, and compulsion and intimidation." 83 The failure to use the gun Why? Simply, because said Association President has absolutely no
theoretically, the members of Congress, if bent on discharging their against those who comply with the orders of the party wielding the official authority to perform in connection therewith, and, hence,
functions under said Constitution, could have met in any other weapon does not detract from the intimidation that Martial Law his certification is legally, as good as non-existent.
place, the building in which they perform their duties being necessarily connotes. It may reflect the good, reasonable and
immaterial to the legality of their official acts. The force of this wholesome attitude of the person who has the gun, either pointed Similarly, a certification, if any, of the Secretary of the Department
argument is, however, offset or dissipated by the fact that, on or at others, without pulling the trigger, or merely kept in its holster, of Local Governments and Community Development about the
about December 27, 1972, immediately after a conference between but not without warning that he may or would use it if he deemed tabulated results of the voting in the Citizens Assemblies
the Executive, on the one hand, and members of Congress, on the it necessary. Still, the intimidation is there, and inaction or allegedly held all over the Philippines — and the records do not
other, some of whom expressed the wish to meet in session on obedience of the people, under these conditions, is not necessarily show that any such certification, to the President of the Philippines
January 22, 1973, as provided in the 1935 Constitution, a Daily an act of conformity or acquiescence. This is specially so when we or to the President Federation or National Association of presidents
Express columnist (Primitivo Mijares) attributed to Presidential consider that the masses are, by and large, unfamiliar with the of Provincial Associations of presidents of municipal association
Assistant Guillermo de Vega a statement to the effect that "'certain parliamentary system, the new form of government introduced in presidents of barrio or ward assemblies of citizens — would not,
members of the Senate appear to be missing the point in issue' the proposed Constitution, with the particularity that it is not even legally and constitutionally, be worth the paper on which it is
when they reportedly insisted on taking up first the question of identical to that existing in England and other parts of the world, written. Why? Because said Department Secretary is not the officer
convening Congress." The Daily Express of that date, 82 likewise, and that even experienced lawyers and social scientists find it designated by law to superintend plebiscites or elections held for
headlined, on its front page, a "Senatorial Plot Against 'Martial Law difficult to grasp the full implications of some provisions the ratification or rejection of a proposed amendment or revision of
Government' Disclosed". Then, in its issue of December 29, 1972, incorporated therein. the Constitution and, hence, to tabulate the results thereof. Worse
the same paper imputed to the Executive an appeal "to diverse still, it is the department which, according to Article X of the
groups involved in a conspiracy to undermine" his powers" under As regards the applicability to these cases of the "enrolled bill" rule, Constitution, should not and must not be all participate in said
martial law to desist from provoking a constitutional crisis ... which it is well to remember that the same refers to a document certified plebiscite — if plebiscite there was.
may result in the exercise by me of authority I have not exercised." to the President — for his action under the Constitution — by the
Senate President and the Speaker of the House of Representatives, After citing approvingly its ruling in United States v. Sandoval, 84 the
and attested to by the Secretary of the Senate and the Secretary of Highest Court of the United States that courts "will not stand
Page 26 of 158

impotent before an obvious instance of a manifestly unauthorized history and has been legitimately supplanted by the Constitution in In all other respects and with regard to the other respondent in said
exercise of power." 85 force by virtue of Proclamation 1102." 86 When the petitions at bar case, as well as in cases L-36142, L-36164, L-36236 and L-36283, my
were filed, the same three (3) members of the Court, consequently, vote is that the petitions therein should be given due course, there
I cannot honestly say, therefore, that the people impliedly or voted for the dismissal of said petitions. The majority of the being more than prima facie showing that the proposed
expressly indicated their conformity to the proposed Constitution. members of the Court did not share, however, either view, Constitution has not been ratified in accordance with Article XV of
believing that the main question that arose before the rendition of the 1935 Constitution, either strictly, substantially, or has been
VI said judgment had not been sufficiently discussed and argued as acquiesced in by the people or majority thereof; that said proposed
the nature and importance thereof demanded. Constitution is not in force and effect; and that the 1935
Constitution is still the Fundamental Law of the Land, without
Are the Parties entitled to any relief?
The parties in the cases at bar were accordingly given every prejudice to the submission of said proposed Constitution to the
possible opportunity to do so and to elucidate on and discuss said people at a plebiscite for its ratification or rejection in accordance
Before attempting to answer this question, a few words be said
question. Thus, apart from hearing the parties in oral argument for with Articles V, X and XV of the 1935 Constitution and the
about the procedure followed in these five (5) cases. In this
five (5) consecutive days — morning and afternoon, or a total of provisions of the Revised Election Code in force at the time of such
connection, it should be noted that the Court has not decided
exactly 26 hours and 31 minutes — the respective counsel filed plebiscite.
whether or not to give due course to the petitions herein or to
extensive notes on their or arguments, as well as on such additional
require the respondents to answer thereto. Instead, it has required
arguments as they wished to submit, and reply notes or Perhaps others would feel that my position in these cases overlooks
the respondents to comment on the respective petitions — with
memoranda, in addition to rejoinders thereto, aside from a sizeable what they might consider to be the demands of "judicial
three (3) members of the voting to dismiss them outright — and
number of document in support of their respective contentions, or statesmanship," whatever may be the meaning of such phrase. I am
then considers comments thus submitted by the respondents as
as required by the Court. The arguments, oral and written, aware of this possibility, if not probability; but "judicial
motions to dismiss, as well as set the same for hearing. This was
submitted have been so extensive and exhaustive, and the statesmanship," though consistent with Rule of Law, cannot
due to the transcendental nature of the main issue raised, the
documents filed in support thereof so numerous and bulky, that, prevail over the latter. Among consistent ends or consistent values,
necessity of deciding the same with utmost dispatch, and the main
for all intents and purposes, the situation is as if — disregarding there always is a hierarchy, a rule of priority.
defense set up by respondents herein, namely, the alleged political
forms — the petitions had been given due course and the cases had
nature of said issue, placing the same, according to respondents,
been submitted for decision. We must realize that the New Society has many achievements
beyond the ambit of judicial inquiry and determination. If this
defense was sustained, the cases could readily be dismissed; but, which would have been very difficult, if not impossible, to
owing to the importance of the questions involved, a reasoned Accordingly, the majority of the members of the Court believe that accomplish under the old dispensation. But, in and for the judiciary,
resolution was demanded by public interest. At the same time, they should express their views on the aforementioned issues as if statesmanship should not prevail over the Rule of Law. Indeed, the
respondents had cautioned against a judicial inquiry into the merits the same were being decided on the merits, and they have done so primacy of the law or of the Rule of Law and faithful adherence
of the issues posed on account of the magnitude of the evil in their individual opinion attached hereto. Hence, the resume of thereto are basic, fundamental and essential parts of statesmanship
consequences, it was claimed, which would result from a decision the votes cast and the tenor of the resolution, in the last pages itself.
thereon, if adverse to the Government. hereof, despite the fact that technically the Court has not, as yet,
formally given due course to the petitions herein. Resume of the Votes Cast and the Court's Resolution
As a matter of fact, some of those issues had been raised in the
plebiscite cases, which were dismissed as moot and academic, And, now, here are my views on the reliefs sought by the parties. As earlier stated, after the submittal by the members of the Court
owing to the issuance of Proclamation No. 1102 subsequently to of their individual opinions and/or concurrences as appended
the filing of said cases, although before the rendition of judgment In L-36165, it is clear that we should not issue the writ hereto, the writer will now make, with the concurrence of his
therein. Still one of the members of the Court (Justice Zaldivar) was of mandamus prayed for against Gil J. Puyat and Jose Roy, colleagues, a resume or summary of the votes cast by each of them.
of the opinion that the aforementioned issues should be settled in President and President Pro Tempore respectively of the Senate, it
said cases, and he, accordingly, filed an opinion passing upon the being settled in our jurisdiction, based upon the theory of It should be stated that by virtue of the various approaches and
merits thereof. On the other hand, three (3) members of the Court separation of powers, that the judiciary will not issue such writ to views expressed during the deliberations, it was agreed to
— Justices Barredo, Antonio and Esguerra — filed separate opinions the head of a co-equal department, like the aforementioned synthesize the basic issues at bar in broad general terms in five
favorable to the respondents in the plebiscite cases, Justice Barredo officers of the Senate. questions for purposes of taking the votes. It was further agreed of
holding "that the 1935 Constitution has pro tanto passed into course that each member of the Court would expound in his
Page 27 of 158

individual opinion and/or concurrence his own approach to the members of the Court hold that the issue is political and "beyond Two (2) members of the Court, namely, Justice Zaldivar and myself
stated issues and deal with them and state (or not) his opinion the ambit of judicial inquiry." hold that there can be no free expression, and there has even been
thereon singly or jointly and with such priority, qualifications and no expression, by the people qualified to vote all over the
modifications as he may deem proper, as well as discuss thereon 2. On the second question of validity of the ratification, Justices Philippines, of their acceptance or repudiation of the proposed
other related issues which he may consider vital and relevant to the Makalintal, Zaldivar, Castro, Fernando, Teehankee and myself, or Constitution under Martial Law. Justice Fernando states that "(I)f it
cases at bar. six (6) members of the Court also hold that the Constitution is conceded that the doctrine stated in some American decisions to
proposed by the 1971 Constitutional Convention was not validly the effect that independently of the validity of the ratification, a
The five questions thus agreed upon as reflecting the basic issues ratified in accordance with Article XV, section 1 of the 1935 new Constitution once accepted acquiesced in by the people must
herein involved are the following: Constitution, which provides only one way for ratification, i.e., "in be accorded recognition by the Court, I am not at this stage
an election or plebiscite held in accordance with law and prepared to state that such doctrine calls for application in view of
1. Is the issue of the validity of Proclamation No. 1102 a justiciable, participated in only by qualified and duly registered voters. 87 the shortness of time that has elapsed and the difficulty of
or political and therefore non-justiciable, question? ascertaining what is the mind of the people in the absence of the
Justice Barredo qualified his vote, stating that "(A)s to whether or freedom of debate that is a concomitant feature of martial law." 88
2. Has the Constitution proposed by the 1971 Constitutional not the 1973 Constitution has been validly ratified pursuant to
Convention been ratified validly (with substantial, if not strict, Article XV, I still maintain that in the light of traditional concepts Three (3) members of the Court express their lack of knowledge
compliance) conformably to the applicable constitutional and regarding the meaning and intent of said Article, the referendum in and/or competence to rule on the question. Justices Makalintal and
statutory provisions? the Citizens' Assemblies, specially in the manner the votes therein Castro are joined by Justice Teehankee in their statement that
were cast, reported and canvassed, falls short of the requirements "Under a regime of martial law, with the free expression of
thereof. In view, however, of the fact that I have no means of opinions through the usual media vehicle restricted, (they) have no
3. Has the aforementioned proposed Constitution acquiesced in
refusing to recognize as a judge that factually there was voting and means of knowing, to the point of judicial certainty, whether the
(with or without valid ratification) by the people?
that the majority of the votes were for considering as approved the people have accepted the Constitution." 89
1973 Constitution without the necessity of the usual form of
4. Are petitioners entitled to relief? and
plebiscite followed in past ratifications, I am constrained to hold 4. On the fourth question of relief, six (6) members of the Court,
that, in the political sense, if not in the orthodox legal sense, the namely, Justices Makalintal, Castro, Barredo, Makasiar, Antonio and
5. Is the aforementioned proposed Constitution in force?
people may be deemed to have cast their favorable votes in the Esguerra voted to DISMISS the petition. Justice Makalintal and
belief that in doing so they did the part required of them by Article Castro so voted on the strength of their view that "(T)he effectivity
The results of the voting, premised on the individual views XV, hence, it may be said that in its political aspect, which is what of the said Constitution, in the final analysis, is the basic and
expressed by the members of the Court in their respect opinions counts most, after all, said Article has been substantially complied ultimate question posed by these cases to resolve which
and/or concurrences, are as follows: with, and, in effect, the 1973 Constitution has been constitutionally considerations other than judicial, an therefore beyond the
ratified." competence of this Court, 90 are relevant and unavoidable." 91
1. On the first issue involving the political-question doctrine Justices
Makalintal, Zaldivar, Castro, Fernando, Teehankee and myself, or Justices Makasiar, Antonio and Esguerra, or three (3) members of Four (4) members of the Court, namely, Justices Zaldivar, Fernando,
six (6) members of the Court, hold that the issue of the validity of the Court hold that under their view there has been in effect Teehankee and myself voted to deny respondents' motion to
Proclamation No. 1102 presents a justiciable and non-political substantial compliance with the constitutional requirements for dismiss and to give due course to the petitions.
question. Justices Makalintal and Castro did not vote squarely on valid ratification.
this question, but, only inferentially, in their discussion of the
5. On the fifth question of whether the new Constitution of 1973 is
second question. Justice Barredo qualified his vote, stating that
3. On the third question of acquiescence by the Filipino people in in force:
"inasmuch as it is claimed there has been approval by the people,
the aforementioned proposed Constitution, no majority vote has
the Court may inquire into the question of whether or not there has
been reached by the Court. Four (4) members of the Court, namely, Justices
actually been such an approval, and, in the affirmative, the Court
Barredo, Makasiar, Antonio and Esguerra hold
should keep hands-off out of respect to the people's will, but, in
Four (4) of its members, namely, Justices Barredo, Makasiar, that it is in force by virtue of the people's
negative, the Court may determine from both factual and legal
Antonio and Esguerra hold that "the people have already accepted acceptance thereof;
angles whether or not Article XV of the 1935 Constitution been
the 1973 Constitution."
complied with." Justices Makasiar, Antonio, Esguerra, or three (3)
Page 28 of 158

Four (4) members of the Court, namely, Justices National Bank V. Saunders, 51 Neb. 801, 71 N.W. 779; Green v. inquire into the question, even in a collateral proceeding. ... It is to
Makalintal, Castro, Fernando and Teehankee cast State Board, 5 Idaho, 130, 47 Pac. 259, 95 Am. St. Rep. 169; In re be noted that under section 1 of article 20 of the Constitution of
no vote thereon on the premise stated in their Denny, 156 Ind. 104, 59 N.E. 359, 51 L.R.A. 722; Knight v. Shelton the state no amendment can become a part of the
votes on the third question that they could not [C.C.] 134 Fed. 423); whether a proposed amendment is a single Constitution until ratified by a vote of the people. One prerequisite
state with judicial certainty whether the people amendment, within the constitutional requirement that every is equally as essential as the other. The amendment must first
have accepted or not accepted the Constitution; amendment must be separately submitted (State v. Powell, 77 receive the requisite majority in the Legislature, and afterwards be
and Miss. 543, 27 South. 927; Gabbert v. Chicago, etc., R. Co., 171 Mo. adopted by the requisite vote. ... It is the fact of a majority vote
84, 70 S.W. 891; State v. Timme, 54 Wis. 318, 11 N.W. 785; In re which makes the amendment a part of the Constitution."
Two (2) members of the Court, namely, Justice Denny, 156 Ind. 104, 59 N.E. 359, 51 L.R.A. 722; Lobaugh v. Cook,
Zaldivar and myself voted that the Constitution 127 Iowa, 181, 102 N.W. 1121; People v. Sours, 31 Colo. 369, 74 "In considering the cases it is necessary to note whether in the
proposed by the 1971 Constitutional Convention Pac. 167, 102 Am. St. Rep. 34; State v. Board, 34 Mont. 426, 87 Pac. particular case the court was called upon to determine
is not in force; 450; State v. Winnett [Neb.] 110 N.W. 1113, 10 L.R.A. [N.S.] 149); between rival governments, or whether the Legislature, or some
whether the failure to enter the resolution of submission upon the board or official, had legally performed the duty imposed by the
with the result that there are not enough votes to declare that the legislative journals invalidates the amendment (Koehler v. Hill, 60 Constitution or statutes. In re State v. McBride, 4 Mo. 303, 29 Am.
new Constitution is not in force. Iowa, 543,14 N.W. 738,15 N.W. 609; Oakland Paving Co. v. Hilton, Dec. 636, it was held that the General Assembly, under the power
69 Cal. 479, 11 Pac. 3; West v. State, 50 Fla. 154, 39 South. 412; granted by the Constitution, could change the Constitution only in
Durfee v. Harper, 22 Mont. 354, 56 Pac. 56; State v. Tufly, 19 Nev. the manner prescribed by it, and that it was the duty of the court to
ACCORDINGLY, by virtue of the majority of six (6) votes of Justices
391, 12 Pac. 835, 3 Am. St. Rep. 895); whether the description of the determine whether all prerequisites had been complied with.
Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra with
amendment and the form of the ballot are sufficient (Russell v. In Collier v. Frierson, 24 Ala. 100, it was held that a Constitution can
the four (4) dissenting votes of the Chief Justice and Justices
Croy, 164 M 69, 63 S.W. 849; State v. Winnett [ Neb.] 110 N.W. be changes only by the people in convention or in a mode
Zaldivar, Fernando and Teehankee, all the aforementioned cases
1113, L.R.A. [N.S.] 149; Murphy Chair Co. v. Attorney General described by the Constitution itself, and that if the latter mode is
are hereby dismissed. This being the vote of the majority, there is
[Mich.] 112 N.W. 127); whether the method of submission adopted every requisite of the Constitution must be observed. 'It has
no further judicial obstacle to the new Constitution being
sufficient (Lovett v. Ferguson,, 10 S.D. 44, 71 N.W. 765; Russell v. been said," says the court, "that certain acts are to be done, certain
considered in force and effect.
Croy, 164 Mo. 69, 63 S.W. 849); whether the publication of the requisitions are to be observed, before a change can be effected;
amendment or of a notice relative to it is sufficient (Com. v. Griest, but to what purpose are these acts required, or these requisitions
It is so ordered.
196 Pa. 396, 46 Atl. 505, 50 L.R.A. 568; Russell v. Croy, 164 Mo. 69, enjoined, if the Legislature or any other department of the
63 S.W. 849); whether the submission may be well by resolution as government can dispense with them. To do so would be to violate
Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra, JJ., by a legislative act approved by the executive (Com. v. Griest, 196 the instrument which they are sworn to support; and every
concur. Pa. 396, 46 Atl. 505, 50 L.R. 568; Warfield vi Vandiver, 101 Md. 78, principle of public law and sound constitutional policy requires the
60 Atl. 538; Edward Lesueur, 132 Mo. 410, 33 S.W. 1130, 31 L.R.A. court to pronounce against every amendment which is shown not to
ANNEX A 815; Hays v. Hays, 5 Idaho, 154, 47 Pac. 732; State v. Dahl, 6 N.D. have been made in accordance with the rules prescribed by the
81, 6 N.W. 418, 34 L.R.A. 97); at what election the amendment be fundamental law.'
PERTINENT PORTIONS OF THE MINNESSOTA SUPREME COURT submitted (People v. Curry, 130 Cal. 82, 62 Pac. 516).
"In State v. Swift, 69 Ind. 505, it was said that: 'The people of a state
DECISION ON THE CASE IN RE McCONAUGHY In Rich v. Board of Canvassers, 100 Mich. 458, 59 N.W. 183, the may form an original Constitution, or abrogate an old one and form
court said: "It is contended that the determination of the question a new one, at any time, without any political restriction, except the
"(a) An examination of the decisions shows that the courts have whether an amendment to the Constitution has been carried Constitution of the United States, but if they undertake to add an
almost uniformly exercised the authority to determine the validity of involves the exercise of political, and not judicial, power. If this be amendment, by the authority of legislation to a Constitution
the proposal, submission, or ratification of constitutional so, it follows that the promulgation of any purported amendment already in existence, they can do it only by the method pointed out
amendments. It has been judicially determined whether a proposed by the executive or any executive department is final, and that the by the Constitution to which the amendment is added. The power
amendment received the constitutional majority of votes (Dayton v. action cannot be questioned by the judiciary; but, with reference to to amend a Constitution by legislative action does not confer the
St. Paul, 22 Minn. 400; Rice v. Palmer, 78 Ark. 432, 96 S.W. 396; the conditions precedent to submitting a proposed amendment to a power to break it, any more than it confers the power to legislate
Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl. 744, 881, 45 L.R.A. 251; State vote of the people, it has been repeatedly held, by courts of the on any other subject contrary to its prohibitions.' So, in State v.
v. Foraker, 46 Ohio St. 677, 23 N.E. 49l; 6 L.R.A. 422; Tecumseh highest respectability, that it is within the power of the judiciary to Timme, 54 Wis. 318, 11 N.W. 785, it was held that no amendments
Page 29 of 158

can be made to the Constitution of the state without a compliance "In Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 Pac. 3, the court, in "In University v. McIver, 72 N.C. 76, the question whether a
with the provisions thereof, both in the passage of such amendment commenting upon the Kansas case said: 'The reasoning by which proposed amendment to the Constitution had been legally adopted
by the Legislature and the manner of submitting it to the people. the learned court reached the conclusion it did is not based on any was treated as a judicial question. By the Constitution a proposed
The courts have not all agreed as to the strictness of compliance sound legal principles, but contrary to them. Neither the amendment was required to be approved by Legislatures before its
which should be required. argument nor the conclusion can command our assent or approval. submission to the people. In this instance a bill was passed which
The argument is illogical, and based on premises which are without contained 17 amendments. The next Legislature rejected 9 and
"In the Prohibition and Amendment Case, 24 Kan. 700, the any sound foundation, and rests merely on assumption.' See, also, adopted 8 of the amendments, and submitted them to the
court determined judicially whether an amendment to the the well-considered case of Kadderly v. Portland, 44 Or. 118, 74 people. The majority of the people voted for their adoption; but it
Constitution had been legally adopted. After approving the Pac. 710, 75 Pac. 222. All these cases concede the jurisdiction of the was contended that the Constitution contemplated and required
statement quoted from Collier v. Frierson, supra, that 'we court to determine whether, in submitting a proposed amendment that the same bill and the same amendments, without change,
entertain no doubt that, to change the Constitution in an other to the people, the Legislature legally observed the constitutional should approved by both Legislatures, and that it did not follow
mode than by a convention, every requisite which is demanded by provisions as to the manner of procedure. In Livermore v. Waite, because the second Legislature adopted separately 8 out of
the instrument itself must be observed, and the omission of any one 102 Cal. 113, 36 Pac. 424, 25 L.R.A. 312, the court, at the instance 17 amendments adopted by the first Legislature, it would have
is fatal to the amendment,' the court held that, 'as substance of of a citizen and a taxpayer, restrained the Secretary of State from adopted the 17, or any of them, if they had been voted upon the
right is grander and more potent than methods of form,' there had taking steps to submit to the people a proposed amendment to the second in the form adopted by the first body. The substance of the
been substantial compliance with the constitutional requirement Constitution agreed to by the Legislature on the ground that the contention was that there had not been a concurrence of
that a proposed amendment to the Constitution must be entered at Legislature had not acted in conformity with the Constitution and the twoLegislatures on the same amendments, according to the
length on the legislative journal. It appears that the joint resolution that the proposed amendment was of such a character that it could letter and spirit of the Constitution. The court held that the power
making submission simply provided that a proposition should be not properly become a part of the Constitution. The Supreme Court of the Legislature in submitting amendments could not be
submitted to the electors at the general election of 1880. It did not of Colorado, in People v. Sours, supra, refused to exercise this distinguished from the powers of convention, and that, as the
declare that the machinery of the general election law should authority. people had spoken and ratified the amendments, they became a
control, or that any particular officers or board would receive, part of the Constitution.
count, or canvass the votes cast. But the existing election machinery "The entire question received elaborate consideration in Koehler v.
was adequate, and the votes were received, counted, and Hill, 60 Iowa, 543, 14 N.W. 738, 15 N.W. 609. The amendment, "In Westinghausen v. People, 44 Mich. 265, 6 N.W. 641, it was held
canvassed, and the result declared as fully as though it had been in which concededly had been adopted by the people, had not, before that prior to 1876 a proposed amendment to Constitution could not
terms so ordered. These methods had been followed in the its submission, been entered in full upon the legislative journals, as be submitted to the people at any other than a general election;
adoption of previous amendments, and was held that, conceding required by the Constitution, and it was held that this was but, as the amendment under consideration had been
the irregularity of the proceedings the Legislature and the doubtful a material variance in both form and substance from the submitted after the Constitution been changed, it had been legally
scope of the provisions for the election, yet in view of the very constitutional requirements, and that the amendment did not, submitted and adopted.
uncertainty of such provision the past legislative history of similar therefore, become a part of the Constitution. As to the claim that
propositions, the universal prior acquiescence in the same forms of the question was political, and not judicial, it was said that, while it "In State v. Powell, 77 Miss. 543, 27 South. 927, the question
procedure and the popular and unchallenged acceptance of the is not competent for courts to inquire into the validity of the whether an amendment to the Constitution had been legally
legal pendency before the people of the question of the Constitution and the form of government under which they submitted and adopted by the people was held to be judicial,
amendment for decision, and in view of the duty cast upon the themselves exist, and from which they derive their powers, and not political, in its nature. The amendment under
court taking judicial knowledge of anything affecting the existence yet, where the existing Constitution prescribes a method for its own consideration changed the Constitution by providing for an elective,
and validity of any law or portion of the Constitution, it must be amendment, an amendment thereto, to be valid, must be adopted instead of an appointive, judiciary. It was contented that the
adjudged that the proposed amendment became part of the in strict conformity to that method; and it is the duty of the courts amendments had been improperly submitted and adopted by a
Constitution. The effect was to hold that a provision of the in a proper case, when an amendment does not relate to their own majority of the qualified voters voting at election, as required by
Constitution requiring the proposed amendment to be entered in power or functions, to inquire whether, in the adoption of the the Constitution. The law did direct how the result of the election
full on the journals was directory, and not mandatory. amendment, the provisions of the existing Constitution have been should be determined. The Legislature by joint resolution recited
This liberal view was approved in State v. Winnett (Neb.) 110 N. observed, and, if not, to declare the amendment invalid and of no that the election had been duly held throughout the state, and, as it
1113, 10 L.R.A. (N.S.) 149, and People v. Sours, 31 Colo. 369, Pac. force. This case was followed in State v. Brookhart, 113 Iowa, 250, appeared from the returns made to the Secretary of State, that
167, 102 Am. St. Rep. 34. But it has not been universally accepted. 84 N.W. 1064. 21,169 votes were cast in favor of, and 8,643 votes against, the
amendment, it resolved 'that said amendment be, and hereby
Page 30 of 158

is, inserted into the Constitution of the state of Mississippi as a part proposed amendments, passed an act for submitting the same to court, after considering the case on the merits, held that the proper
of the Constitution.' In fact, the amendment was not submitted in the people. This statute provided for the transmission to the conclusion had been drawn therefrom, and that the amendment in
the manner prescribed by the Constitution, and it did not receive a Secretary of State of certificate showing the result of the voting question was legally submitted and adopted.
majority of all the qualified voters voting at the election. It was throughout the state, and made it the duty of the Governor at the
argued that the rules prescribed by the Constitution "are all for the designated time summon four or more Senators, who, with the "The recent case of Rice v. Palmer, 78 Ark. 432, 96 S.W. 396,
guidance of the Legislature, and from the very nature of the thing Governor, should constitute a board of state canvassers to canvass presented the identical question which we have under
the Legislature must be the exclusive judge of all questions to be and estimate the votes for and against each amendment. This consideration. In reference to the contention that the Constitution
measured or determined by these rules. Whether the question be board was to determine and declare which of the proposed intended to delegate to the Speaker of the House of
political, and certainly a legislative one, or judicial, to be amendments had been adopted and to deliver a statement of the Representatives the power to determine whether an amendment
determined by the courts, this section of rules, not only of results to the Secretary of State, and "any proposed amendment, had been adopted, and that the question was political, and not
procedure, but of final judgment as well, confides to the separate which by said certificate and determination of the board of judicial, the court observed: "The argument has often been made in
magistracy of the legislative department full power to hear, canvassers shall appear to have received in its favor the majority of similar cases to the courts, and it is found in many dissenting
consider, and adjudge that question. The Legislature puts the all the votes cast in the state for and against said proposed opinions; but, with probably a few exceptions, it is not found in
question to the qualified electors. The qualified electors answer amendment, shall from the time of filing such certificate be and any prevailing opinion."
back to the Legislature. "If it shall appear" to the Legislature that its become an amendment to and a part of the Constitution of the
question has been answered in the affirmative, the amendment is state; and it shall be the duty of the Governor of the state "In State v. Tooker, 15 Mont. 8, 37 Pac. 840, 25 L.R.A. 560, it was
inserted and made a part of the Constitution. The Governor and the forthwith, after such a determination, to issue a proclamation held that the constitutional requirement of publication of a
courts have no authority to speak at any stage of the proceedings declaring which of the said proposed amendments have been proposed constitutional provision for three months prior to the
between the sovereign and the Legislature, and when the matter is adopted by the people." This board was required to file a statement election at which it is to be submitted to the people
thus concluded it is closed, and the judiciary is as powerless to of the result of the election, and the Governor to issue his is mandatory and that noncompliance therewith renders the
interfere as the executive.' But it was held that the question proclamation declaring that the amendment had been adopted and adoption of an amendment of no effect."
whether the proposition submitted to the voters constituted one, become a part of the Constitution. At the instance of a taxpayer the
or more than one, amendment, whether the submission was Supreme Court allowed a writ of certiorari to remove into the court
according to the requirements of the Constitution, and whether the for review the statement of the results of the election made by the
proposition was in fact adopted, were all judicial, and not political, canvassing board, in order that it might be judicially
questions. 'We do not,' said Chief Justice Whitfield, 'seek a determined whether on the facts shown in that statement the
jurisdiction not imposed upon us by the Constitution. We could not, board had legally determined that the proposed amendment had
if we would, escape the exercise of that jurisdiction which the been adopted. The Supreme Court decided that the concurrence of MANILA
Constitution has imposed upon us. In the particular instance in the board of state canvassers and the executive department of the
which we are now acting, our duty to know what the Constitution government in their respective official functions placed the subject- BY THE PRESIDENT OF THE PHILIPPINES
of the state is, and in accordance with our oaths to support and matter beyond the cognizance of the judicial department of the
maintain it in its integrity, imposed on us a most difficult and state. The Court of Appeals, after a full review of the PRESIDENTIAL DECREE NO. 86-B
embarrassing duty, one which we have not sought, but one which, authorities, reversed this decision, and held that the questions
like all others, must be discharged." were of a judicial nature, and properly determinable by the court Defining Further the Role of Barangays (Citizens Assemblies)
on their merits. Mr. Justice Dixon, after stating the facts, said: 'It
"In Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl. 744, 881, 45 L.R.A. 251, it thus becomes manifest that there was present in the Supreme WHEREAS, since their creation pursuant to Presidential Decree No.
was held that it was the duty of the judicial department of the Court, and is now pending in this court, every element tending to 86 dated December 31, 1972, the Barangays (Citizens Assemblies)
government to determine whether the legislative department or its maintain jurisdiction over the subject-matter, unless it be true, as have petitioned the Office of the President to submit to them for
officers had observed the constitutional injunctions in attempting to insisted, that the judicial department of the government has not resolution important national issues;
amend the Constitution, and to annul their acts if they had not done the right to consider whether the legislative department and its
so. The case is an interesting and well-considered one. The agencies have observed constitutional injunctions in attempting to
WHEREAS, one of the questions persistently mention refers to the
Constitution provided the manner in which proposed amendments amend the Constitution, and to annul their acts in case that they
ratification of the Constitution proposed by the 1971 Constitutional
should be submitted to the people, but did not provide a method have not done so. That such a proposition is not true seems to be
for canvassing the votes. The Legislature having agreed to certain indicated by the whole history of jurisprudence in this country.' The
Page 31 of 158

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;


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.

The Secretary of the Department of Local Government and

Community Development shall insure the implementation of this

Done in the City of Manila, this 7th day of January in the year of Our
Lord, nineteen hundred and seventy-three.

By the President:

(SGD.) ALEJANDRO MELCHOR Executive Secretary

Page 32 of 158

Separate Opinions The Election Code of 1971, in its Section 2, states that "all elections of (3) After the draft Constitution was approved by the Constitutional
public officers except barrio officials andplebiscites shall be conducted in Convention on November 30, 1972 the said body adopted Resolution No.
MAKALINTAL, J., concurring: the manner provided by this Code." This is a statutory requirement 5843, proposing "to President Ferdinand E. Marcos that a decree be issued
designed, as were the other election laws previously in force, to carry out calling aplebiscite for the ratification of the proposed New Constitution on
the constitutional mandate relative to the exercise of the right suffrage, such appropriate date as he shall determine and providing for the
CASTRO, J., concurring:
and with specific reference to the term "plebiscites," the provision of necessary funds therefor." Pursuant to said Resolution the President issued
Article XV regarding ratification of constitutional amendments. Decree No. 73 on the same day, calling a plebiscite to be held on January
The preliminary question before this Court was whether or not the 15, 1973, at which the proposed Constitution "shall be submitted to the
petitioners had made out a sufficient prima faciecase in their petitions to people for ratification or rejection." The Decree had eighteen (18) sections
The manner of conducting elections and plebiscites provided by the Code is
justify their being given due course. Considering on the one hand the in all, prescribing in detail the different steps to be taken to carry out the
spelled out in other sections thereof. Section 99 requires that qualified
urgency of the matter and on the other hand its transcendental process of ratification, such as: (a) publication of the proposed Constitution
voters be registered in a permanent list, the qualifications being those set
importance, which suggested the need for hearing the side of the in English and Pilipino; (b) freedom of information and discussion; (c)
forth in Article V, Section 1, of the 1935 Constitution on the basis of age
respondents before that preliminary question was resolved, We required registration of voters: (d) appointment of boards of election inspectors and
(21), literacy and residence. These qualifications are reiterated in Section
them to submit their comments on the petitions. After the comments were designation of watchers in each precinct; (e) printing of official ballots; (f)
101 of the Election Code. Section 102 enumerates the classes of persons
filed We considered them as motions to dismiss so that they could be orally manner of voting to insure freedom and secrecy thereof; (g) canvass of
disqualified to vote. Succeeding sections prescribe the election
argued. As it turned out, the hearing lasted five days, morning and plebiscite returns; and (h) in general, compliance with the provisions of the
paraphernalia to be used, the procedure for registering voters, the records,
afternoon, and could not have been more exhaustive if the petitions had Election Code of 1971, with the Commission on Elections exercising its
of registration and the custody thereof, the description and printing of
been given due course from the beginning. constitutional and statutory powers of supervision of the entire process.
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
The major thrust of the petitions is that the act of the Citizens Assemblies canvass and proclamation of the results. There can hardly be any doubt that in everybody's view — from the
as certified and proclaimed by the President on January 17, 1973 framers of the 1935 Constitution through all the Congresses since then to
(Proclamation No. 1102) was not an act of ratification, let alone a valid one, the 1971 Constitutional Convention — amendments to the Constitution
With specific reference to the ratification of the 1972 draft Constitution,
of the proposed Constitution, because it was not in accordance with the should be ratified in only one way, that is, in an election or plebiscite held
several additional circumstances should be considered:
existing Constitution (of 1935) and the Election Code of 1971. Other in accordance with law and participated in only by qualified and duly
grounds are relied upon by the petitioners in support of their basic registered voters. Indeed, so concerned was this Court with the importance
proposition, but to our mind they are merely subordinate and peripheral. (1) This draft was prepared and approved by a Convention which had been
and indispensability of complying with the mandate of the (1935)
convened pursuant to Resolution No. 2 passed by Congress on March 16,
Constitution in this respect that in the recent case of Tolentino vs.
1967, which provides:
Article XV, Section 1, of the 1935 Constitution provides that amendments Commission on Elections, No. L-34150, October 16, 1971 (41 SCRA 702), a
(proposed either by Congress in joint session or by a Convention called by it resolution of the (1971) Constitutional Convention submitting a proposed
for the purpose) "shall be valid part of this Constitution when approved by Sec. 7. The amendments proposed by the Convention amendment for ratification to a plebiscite to be held in November 1971
a majority of votes cast at an election at which the amendments submitted shall be valid and considered part of the Constitution was declared null and void. The amendment sought to reduce the voting
to the people for their ratification." At the time Constitution was approved when approved by a majority of the votes cast in an age from twenty-one to eighteen years and was approved by the
by the Constitutional Convention on February 8, 1935, and ratified in a election at which they are submitted to the people for Convention for submission to a plebiscite ahead of and separately from
plebiscite held on following May 14, the word "election" had already a their ratification pursuant to Article XV of the other amendments still being or to be considered by it, so as to enable the
definite meaning in our law and jurisprudence. It was not a vague and Constitution. youth to be thus enfranchised to participate in the plebiscite for the
amorphous concept, but a procedure prescribed by statute ascertaining ratification of such other amendments later. This Court held that such
the people's choices among candidates for public offices, or their will on (2) Article XVII, Section 16, of the draft itself states: separate submission was violative of Article XV, Section 1, of the
important matters submitted to the pursuant to law, for approval. It was in Constitution, which contemplated that "all the amendments to be
this sense that word was used by the framers in Article XV (also in Articles Sec. 16. This Constitution shall take effect immediately proposed by the same Convention must be submitted to the people in a
VI and VII), and in accordance with such procedure that plebiscites were upon its ratification by a majority of the votes cast in a single "election" or plebiscite." * Thus a grammatical construction based on
held to ratify the very same Constitution in 1935 as well as the subsequent plebiscite called for the purpose and, except as herein a singular, instead of plural, rendition of the word "election" was
amendments thereto, thus: in 1939 (Ordinance appended to the provided, shall supersede the Constitution of nineteen considered a sufficient ground to rule out the plebiscite which had been
Constitution); 1940 (establishment of a bicameral legislature; eligibility of hundred and thirty-five and all amendments thereto. called to ratify a proposed amendment in accordance with the procedure
the President and the Vice President for re election; creation of the and under all the safeguards provided in the Election Law.
Commission of Elections); 1947 (Parity Amendment); and 1967 (increase in
The same procedure is prescribed in Article XVI, Section 2, for the
membership of the House of Representatives and eligibility of members of In the cases now before Us what is at issue is not merely the ratification of
ratification of any future amendment to or revision of the said
Congress to run for the Constitutional Convention without forfeiture of just one amendment, as in Tolentino vs. COMELEC, but the ratification of
their offices). an entire charter setting up a new form of government; and the issue has
Page 33 of 158

arisen not because of a disputed construction of one word or one provision (2) Do you approve of the new Constitution? The vote of the Citizens Assemblies
in the 1935 Constitution but because no election or plebiscite in should already be considered the
accordance with that Constitution and with the Election Code of 1971 was (3) Do you want a plebiscite to be called to ratify the plebiscite on the New Constitution.
held for the purpose of such ratification. new Constitution?
The Citizens Assemblies which purportedly ratified the draft Constitution (4) Do you want the elections to be held in November,
were created by Presidential Decree No. 86 dated December 31, 1972, "to 1973 accordance with the provisions of the 1935 We are sick and tired of too
broaden the base of citizen participation in the democratic process and to Constitution? frequent elections. We are fed up
afford ample opportunities for the citizenry to express their views on with politics, of so many debates
important national issues." The Assemblies "shall consist of all persons who and so much expenses.
(5) If the elections would not be held, when do you
are residents of the barrio, district or ward for at least six
want the next elections to be called?
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 (6) Do you want martial law to continue? [Bulletin
5, 1973, the Assemblies were convened for a referendum between January Today, January 11, 1973; emphasis supplied]. Probably a period of at least seven
10 and 15, to "consider vital national issues now confronting the country, (7) years moratorium on elections
like the holding of the plebiscite on the new Constitution, the continuation Appended to the six additional questions above quoted were the suggested will be enough for stability to be
of martial rule, the convening of Congress on January 22, 1973, and the answers, thus: established in the country, for
holding of elections in November 1973." reforms to take root and normalcy
to return.
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: QUESTION No. 6
"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 We want President Marcos to
announced that he had ordered the postponement of plebiscite which he In order to broaden the base of
continue with Martial Law. We
had called for January 15, 1973 (Presidential Decree No. 73) for the citizens' participation in
want him to exercise his powers
ratification of the Constitution, and that he was considering two new dates government.
with more authority. We want him
for the purpose — February 19 or March 5; that he had ordered that the to be strong and firm so that he can
registration of voters (pursuant to Decree No. 73) be extended to QUESTION No. 2 accomplish all his reform program
accommodate new voters; and that copies of the new Constitution would and establish normalcy in the
be distributed in eight dialects the people. (Bulletin Today, December 24, But we do not want the Ad Interim country. If all other measures fail,
1972.) Assembly to be convoked. Or if it is we want President Marcos to
to be convened at all, it should not declare a revolutionary government
On January 10, 1973 it was reported that one more question would be be done so until after at least seven along the lines of the new
added to the original four which were to be submitted to the Citizens (7) years from the approval of the Constitution without the ad interim
Assemblies. The question concerning plebiscite was reworded as follows: New Constitution by the Citizens Assembly.
"Do you like the plebiscite to be held later?" The implication, it may Assemblies.
likewise be noted, was that the Assemblies should express their views as to So it was that on January 11, 1973, the second day of the purported
the plebiscite should be held, not as to whether or not it should be held at QUESTION No. 3 referendum, the suggestion was broached, for the first time, that the
all. plebiscite should be done away with and a favorable vote by the
If the Citizens Assemblies approve Assemblies deemed equivalent ratification. This was done, not in the
The next day, January 11, it was reported that six additional questions of the New Constitution, then the questionnaire itself, but in the suggested answer to question No. 3.
would be submitted, namely: new Constitution should be Strangely, however, it was not similarly suggested that an unfavorable vote
deemed ratified. be considered as rejection.
(1) Do you approve of the citizens assemblies as the
base of popular government to decide issues of There should be no serious dispute as to the fact that the manner in which
national interest? the voting was conducted in the Citizen Assemblies, assuming that such
voting was held, was not within the intendment of Article XV, Section 1, of
Page 34 of 158

the 1935 Constitution nor in accordance with the Election Code of 1971. may justifiably declare that the Constitution has not become effective, and the invocation of the political-question doctrine. In support of his theory,
The referendum can by no means be considered as the plebiscite for that reason give due course to these petitions or grant the writs herein Senator Tolentino contends that after President Marcos declared martial
contemplated in Section 2 of said Code and in Article XVII, Section 16, of prayed for. The effectivity of the said Constitution, in the final analysis, is law on September 21, 1972 (Proclamation No. 1081) he established a
the draft Constitution itself, or as the election intended by Congress when the basic and ultimate question posed by these cases, to resolve which revolutionary government when he issued General Order No. 1 the next
it passed Resolution No. 2 on March 16, 1967 calling a Convention for the considerations other than judicial, and therefore beyond the competence day, wherein he proclaimed "that I shall govern the nation and direct the
revision of the 1935 Constitution. The Citizens Assemblies were not limited of this Court, are relevant and unavoidable. operation of the entire government, including all its agencies and
to qualified, let alone registered voters, but included all citizens from the instrumentalities, in my capacity, and shall exercise all the powers and
age of fifteen, and regardless of whether or not they were illiterates, Several theories have been advanced respectively by the parties. The prerogatives appurtenant and incident to my position as such Commander-
feeble-minded, or ex convicts * — these being the classes of persons petitioners lay stress on the invalidity of the ratification process adopted by in-Chief of all the Armed Forces of the Philippines." By this order, it is
expressly disqualified from voting by Section 102 of the Election Code. In the Citizens Assemblies and on that premise would have this Court grant pointed out, the Commander-in-Chief of the Armed Forces assumed all the
short, the constitutional and statutory qualifications were not considered the reliefs they seek. The respondents represented by the Solicitor powers of government — executive, legislative, and judicial; and thereafter
in the determination of who should participate. No official ballots were General, whose theory may be taken as the official position of the proceeded to exercise such powers by a series of Orders and Decrees
used in the voting; it was done mostly by acclamation or open show of Government, challenge the jurisdiction of this Court on the ground that the which amounted to legislative enactments not justified under martial law
hands. Secrecy, which is one of the essential features of the election questions raised in the petitions are political and therefore non-justiciable, and, in some instances, trenched upon the domain of the judiciary, by
process, was not therefore observed. No set of rules for counting the votes and that in any case popular acquiescence in the new Constitution and the removing from its jurisdiction certain classes of cases, such as "those
or of tabulating them and reporting the figures was prescribed or followed. prospect of unsettling acts done in reliance thereon should caution against involving the validity, legality, or constitutionality of Proclamation No.
The Commission on Elections, which is the constitutional body charged interposition of the power of judicial review. Respondents Gil J. Puyat and 1081, or of any decree, order or act issued, promulgated or performed by
with the enforcement and administration of all laws relative to the conduct Jose Roy (in L-36165), in their respective capacities as President and me or by my duly designated representative pursuant thereto." (General
of elections, took no part at all, either by way of supervision or in the President Pro Tempore of the Senate of the Philippines, and through their Order No. 3 as amended by General Order No. 3-A, dated September 24,
assessment of the results. counsel, Senator Arturo Tolentino, likewise invoke the political question 1972.) The ratification by the Citizens Assemblies, it is averred, was the
doctrine, but on a ground not concurred in by the Solicitor General, culminating act of the revolution, which thereupon converted the
It has been suggested that since according to Proclamation No. 1102 the namely, that approval of the 1973 Constitution by the people was made government into a de jure one under the 1973 Constitution.
overwhelming majority of all the members of the Citizens Assemblies had under a revolutionary government, in the course of a successful political
voted for the adoption of the proposed Constitution there was a revolution, which was converted by act of the people to the present de If indeed it be accepted that the Citizens Assemblies had ratified the 1973
substantial compliance with Article XV, Section 1, of the 1935 Constitution jure government under the 1973 Constitution." Constitution and that such ratification as well as the establishment of the
and with the Election Code of 1971. The suggestion misses the point government thereunder formed part of a revolution, albeit peaceful, then
entirely. It is of the essence of a valid exercise of the right of suffrage that Heretofore, constitutional disputes which have come before this Court for the issue of whether or not that Constitution has become effective and, as
not only must a majority or plurality of the voters carry the day but that the adjudication proceeded on the assumption, conceded by all, that the necessary corollary, whether or not the government legitimately functions
same must be duly ascertained in accordance with the procedure Constitution was in full force and effect, with the power and authority of under it instead of under the 1935 Constitution, is political and therefore
prescribed by law. In other words the very existence of such majority or the entire Government behind it; and the task of this Court was simply to non-judicial in nature. Under such a postulate what the people did in the
plurality depends upon the manner of its ascertainment, and to conclude determine whether or not the particular act or statute that was being Citizen Assemblies should be taken as an exercise of the ultimate sovereign
that it exists even if it has not been ascertained according to law is simply challenged contravened some rule or mandate of that Constitution. The power. If they had risen up in arms and by force deposed the then existing
to beg the issue, or to assume the very fact to be established. Otherwise no process employed was one of interpretation and synthesis. In the cases at government and set up a new government in its place, there could not be
election or plebiscite could be questioned for non-compliance with the bar there is no such assumption: the Constitution (1935) has been the least doubt that their act would be political and not subject to judicial
provisions of the Election Law as long as it is certified that a majority of the derogated and its continued existence as well as the validity of the act of review but only to the judgment of the same body politic act, in the
citizens had voted favorably or adversely on whatever it was that was derogation is issue. The legal problem posed by the situation is aggravated context just set forth, is based on realities. If a new government gains
submitted to them to vote upon. by the fact that the political arms of the Government — the Executive authority and dominance through force, it can be effectively challenged
Departments and the two Houses of Congress — have accepted the new only by a stronger force; judicial dictum can prevail against it. We do not
However, a finding that the ratification of the draft Constitution by the Constitution as effective: the former by organizing themselves and see that situation would be any different, as far as the doctrine of judicial
Citizens Assemblies, as certified by the President in Proclamation No. 1102, discharging their functions under it, and the latter by not convening on review is concerned, if no force had been resorted to and the people, in
was not in accordance with the constitutional and statutory procedure laid January 22, 1973 or at any time thereafter, as ordained by the 1935 defiance of the existing Constitution but peacefully because of the absence
down for the purpose does not quite resolve the questions raised in these Constitution, and in the case of a majority of the members by expressing of any appreciable opposition, ordained a new Constitution and succeeded
cases. Such a finding, in our opinion, is on a matter which is essentially their option to serve in the Interim National Assembly in accordance with in having the government operate under it. Against such a reality there can
justiciable, that is, within the power of this Court to inquire into. It imports Article XVIII, Section 2, of the 1973 Constitution. * be no adequate judicial relief; and so courts forbear to take cognizance of
nothing more than a simple reading and application of the pertinent the question but leave it to be decided through political means.
provisions of the 1935 Constitution, of the Election Code and of other The theory advanced by Senator Tolentino, as counsel for respondents
related laws and official acts. No question of wisdom or of policy is Puyat and Roy, may be taken up and restated at same length if only The logic of the political-question doctrine is illustrated in statement of the
involved. But from this finding it does not necessarily follow that this Court because it would constitute, if sustained, the most convenient ground for U.S. Supreme Court in a case * relied upon, curiously enough, by the
Page 35 of 158

Solicitor General, who disagrees with the revolutionary government theory 23, 1972); and that "the postponement would give us more time to debate On the occasion of the signing of Proclamation No. 1102 on January 17,
of Senator Tolentino. The case involved the issue of which of two opposing on the merits of the Charter." (Bulletin Today, Dec. 24, 1972.) 1973, the President said the following, among other things:
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 circumstances above enumerated lead us to the conclusion that the ... We can, perhaps delimit the power of the people to
the courts of the State, which uniformly held that the inquiry belonged to Citizens Assemblies could not have understood the referendum to be for speak on legal matters, on justiciable matters, on
the political power and not to the judicial. Commenting on the ruling thus the ratification of the Constitution, but only for the expression of their matters that may come before the experts and
arrived at, the U.S. Supreme Court said: "And if a State court should enter views on a consultative basis. Indeed, if the expression of those views had interpreters of the law. But we cannot disqualify the
upon the inquiry proposed in this case, and should come to the conclusion been intended as an act of ratification (or of rejection as a logical corollary) people from speaking on what we and the people
that the government under which it acted had been put aside and — there would have been no need for the Katipunan ng mga Barangay to consider purely political matters especially those that
displaced by an opposing government, it would cease to be a court, and recommend that the Constitution should already be deemed ratified, for affect the fundamental law of the land.
incapable of pronouncing a judicial decision upon the question it recommendation imports recognition of some higher authority in whom
undertook to try. If it decides at all as a court, it necessarily affirms the the final decision rests. ... The political questions that were presented to the
existence and authority of the government under which it is exercising
people are exactly those that refer to the form of
judicial power." In other words, since the court would have no choice but
But then the President, pursuant to such recommendation, did proclaim government which the people want ... The implications
to decide in one way alone in order to be able to decide at all, the question
that the Constitution had been ratified and had come into effect. The more of disregarding the people's will are too awesome to be
could not be considered proper for judicial determination.
relevant consideration, therefore, as far as we can see, should be as to even considered. For if any power in government
what the President had in mind in convening the Citizens Assemblies, should even dare to disregard the people's will there
It should be noted that the above statement from Luther vs. Borden would submitting the Constitution to them and proclaiming that the favorable would be valid ground for revolt.
be applicable in the cases at bar only on the premise that the ratification of expression of their views was an act of ratification. In this respect
the Constitution was a revolutionary act and that the government now subjective factors, which defy judicial analysis and adjudication, are ... Let it be known to everybody that the people have
functioning it is the product of such revolution. However, we are not necessarily involved. spoken and they will no longer tolerate any attempt to
prepared to agree that the premise is justified.
undermine the stability of their Republic; they will rise
In positing the problem within an identifiable frame of reference we find up in arms not in revolt against the Republic but in
In the first, place, with specific reference to the questioned ratification, no need to consider whether or not the regime established by President protection of the Republic which they have installed. It
several significant circumstances may be noted. (1) The Citizens Assemblies Marcos since he declared martial law and under which the new is quite clear when the people say, we ratify the
were created, according to Presidential Decree No. 86, "to broaden the Constitution was submitted to the Citizens Assemblies was a revolutionary Constitution, that they mean they will not discard, the
base of citizen participation in the democratic process and to afford ample one. The pivotal question is rather whether or not the effectivity of the said Constitution.
opportunities for the citizenry to express their views on important national Constitution by virtue of Presidential Proclamation No. 1102, upon the
issues." (2) The President announced, according to the Daily Express of recommendation of the Katipunan ng mga Barangay, was intended to be On January 19, 1973 the Daily Express published statement of the
January 2, 1973, that "the referendum will be in the nature of a loose definite and irrevocable, regardless of non-compliance with the pertinent President made the day before, from which the following portion is
consultation with the people." (3) The question, as submitted to them on constitutional and statutory provisions prescribing the procedure for quoted:
the particular point at issue here, was "Do you a approve of the ratification. We must confess that after considering all the available
Constitution?" (4) President Marcos, in proclaiming that the Constitution evidence and all the relevant circumstances we have found no reasonably
had been ratified, stated as follows: "(S)ince the referendum results show ... the times are too grave and the stakes too high for
reliable answer to the question. On one hand we read, for instance, the
that more than ninety-five (95) per cent of the members of the Barangays us permit the customary concessions to traditional
following public statements of the President:
(Citizens Assemblies) are in favor of the new Constitution, the Katipunan ng democratic process to hold back our people's clear and
mga Barangay has strongly recommended that the new Constitution unequivocal resolve and mandate to meet and
Speaking about the proclamation of martial law, he said: overcome the extraordinary challenges presented by
should already be deemed ratified by the Filipino people." (5) There was
not enough time for the Citizens Assemblies to really familiarize these extraordinary times.
themselves with the Constitution, much less with the many other subjects I reiterate what I have said in the past: there is no
that were submitted to them. In fact the plebiscite planned for January 15, turning back for our people. On the same occasion of the signing of Proclamation No. 1102 the
1973 under Presidential Decree No. 73 had been postponed to an President made pointed reference to "the demand of some of our citizens
indefinite date, the reasons for the postponement being, as attributed to We have committed ourselves to this revolution. We ... that when all other measures should fail, that the President be directed
the President in the newspapers, that "there was little time to campaign have pledged to it our future, our fortunes, our lives, to organize and establish a Revolutionary Government," but in the next
for or against ratification" (Daily Express, Dec. 22, 1972); that he would our destiny. We have burned our bridges behind us. Let breath added: "... if we do ratify the Constitution, how can we speak of
base his decision (as to the date, of the plebiscite) on the compliance by no man misunderstand the strength of our resolution. Revolutionary Government? They cannot be compatible ..." "(I)t is my
the Commission (on Elections) on the publication requirement of the new (A Report to the Nation, Jan. 7, 1973.) feeling," he said, "that the Citizens' Assemblies which submitted this
Charter and on the position taken by national leaders" (Daily Express, Dec. recommendation merely sought articulate their impatience with the status
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quo that has brought about anarchy, confusion and misery to the masses I assure you that I am utilizing this power vested in me because so many of our soldiers
..." The only alternatives which the President clearly implied by the by the Constitution to save the Republic and reform our have been killed. You must
foregoing statements were the ratification of the new Constitution and the society... remember this (martial law
establishment of a revolutionary government, the latter being provision) was lifted from the
unnecessary, in his opinion, because precisely the Constitution had been I have had to use this constitutional power in order that American legislation that was the
ratified. The third obvious alternative was entirely ruled out, namely, a we may not completely lose the civil rights and fundamental law of our country.
return to the 1935 Constitution, for it was the status quo under that freedom which we cherish...
Constitution that had caused "anarchy, confusion and misery." The xxx xxx xxx
message seems clear: rather than return to such status quo, he would heed
... We are against the wall. We must now defend the
the recommendation of the Citizens' Assemblies to establish a
Republic with the stronger powers of the Constitution. In the light of this seeming ambivalence, the choice of what course of
revolutionary government, because that would be the only other way to
action to pursue belongs to the President. We have earlier made reference
carry out the reforms he had envisioned and initiated — reforms which, in
(Vital Documents, pp. 1-12; emphasis supplied). to subjective factors on which this Court, to our mind, is in no position to
all fairness and honesty, must be given credit for the improved quality of
pass judgment. Among them is the President's own assessment of the will
life in its many aspects, except only in the field of civil liberties.
of the people as expressed through the Citizens Assemblies and of the
In the report of an interview granted by the President to the Newsweek
importance of the 1973 Constitution to the successful implementation of
If there is any significance, both explicit and implicit, and certainly Magazine (published in the issue of January 29, 1973), the following
the social and economic reforms he has started or envisioned. If he should
unmistakable, in the foregoing pronouncements, it is that the step taken in appears:
decide that there is no turning back, that what the people recommended
connection with the ratification of the Constitution was meant to be through the Citizens Assemblies, as they were reported to him, demand
irreversible, and that nothing anyone could say would make the least xxx xxx xxx that the action he took pursuant thereto be final and irrevocable, then
difference. And if this is a correct and accurate assessment of the situation, judicial review is out of the question.
then we would say that since it has been brought about by political action Q. Now that you have gotten off
and is now maintained by the government that is in undisputed authority the constitutional track, won't you In articulating our view that the procedure of ratification that was followed
and dominance, the matter lies beyond the power of judicial review. be in serious trouble if you run into was not in accordance with the 1935 Constitution and related statutes, we
critical problems with your have discharged our sworn duty as we conceive it to be. The President
On the other hand, by avowals no less significant if not so emphatic in programs? should now perhaps decide, if he has not already decided, whether
terms, President Marcos has professed fealty to the Constitution. In adherence to such procedure is weighty enough a consideration, if only to
"Today's Revolution: Democracy" he says: R. I have never gotten off the dispel any cloud of doubt that may now and in the future shroud the
constitutional track. Everything I am nation's Charter.
I believe, therefore, in the necessity of Revolution as an doing is in accordance with the
instrument of individual and social change ... but that in 1935 Constitution. The only thing is In the deliberations of this Court one of the issues formulated for
a democratic society, revolution is of necessity, that instead of 18-year-olds voting, resolution is whether or not the new Constitution, since its submission to
constitutional, peaceful, and legal. we have allowed 15-year-olds the the Citizens Assemblies, has found acceptance among the people, such
right to vote. But the 15-year-olds issue being related to the political question theory propounded by the
In his TV address of September 23, 1972, President Marcos told the nation: of today are high-school students, if respondents. We have not tarried on the point at all since we find no
not graduates, and they are better reliable basis on which to form a judgment. Under a regime of martial law,
informed than my contemporaries with the free expression of opinions through the usual media vehicles
I have proclaimed martial law in accordance with the
at that age. On the matter of restricted, we have no means of knowing, to the point of judicial certainty,
powers vested in the President by the Constitution of
whether it is constitutional to whether the people have accepted the Constitution. In any event, we do
the Philippines.
proclaim martial law, it is not find the issue decisive insofar as our vote in these cases is concerned.
constitutional because the To interpret the Constitution — that is judicial. That the Constitution
xxx xxx xxx Constitution provides for it in the should be deemed in effect because of popular acquiescence — that is
event of invasion, insurrection, political, and therefore beyond the domain of judicial review.
I repeat, this is not a military takeover of civil rebellion or immediate danger
government functions. The Government of the Republic thereof. We may quarrel about
We therefore vote not to give due course to the instant petitions.
of the Philippines which was established by our people whether what we have gone
in 1946 continues. through is sufficient cause to
proclaim martial law but at the very BARREDO, J., concurring:
xxx xxx xxx least there is a danger of rebellion
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As far as I am concerned, I regard the present petitions as no more than The facts that gave rise to these proceedings are historical and well known. ratification of the draft constitution were concerned. These two orders
mere reiterations of the Supplemental Petitions filed by Counsel Lorenzo Generally, they may be taken judicial notice of. They revolve around the were not, however, to last very long. On January 7, 1973, the President,
M. Tañada on January 15, 1973 in the so called Plebiscite Cases decided by purported ratification of the Constitution of 1973 declared in Proclamation invoking information related to him that the area of public debate and
this Court on January 22, 1978. Of course, there are amplifications of some 1102 issued by the President on January 17, 1973. discussion had opened by his previous orders was being taken advantage
of the grounds previously alleged and in the course of the unprecedented of by subversive elements to defeat the purposes for which they were
five-day hearing that was held from February 12 to 16 last, more extensive Pursuant to a joint resolution of the Congress sitting as a constituent issued and to foment public confusion, withdrew said orders and enjoined
and illuminating arguments were heard by Us, but, in my estimation, and assembly approved on March 16, 1967, delegates to a constitutional full and stricter implementation of martial law.
with due recognition of the sincerety, brilliance and eloquence of counsels, convention to propose amendments to the Constitution of 1935 were
nothing more cogent and compelling than what had already been elected in accordance with the implementing law, Republic Act 6132, on In the meantime, the President had issued on December 3, 1972
previously presented by Counsel Tañada is before Us now. Accordingly, I November 10, 1970. Known as the Constitutional Convention of 1971, the Presidential Decree No. 86 creating Citizens Assemblies "so as to afford
cannot see any reason why I should change the position I took in regard to assembly began its sessions on June 1, 1971. After encountering a lot of ample opportunities for the citizenry to express their views on important
the earlier cases. I reiterate, therefore, the vote I cast when these petitions difficulties, due to bitter rivalries over important positions and committees national issues" and one of the questions presented to said assemblies
were initially considered by the Court; namely, to dismiss them. and an incomprehensible fear of overconcentrating powers in their was: "Do you like the plebiscite on the proposed Constitution to be held
officers, the delegates went about their work in comparatively slow pace, later" So, the same order of January 7, 1973, General Order No. 20, the
In view, however, of the transcendental importance of the issues before and by the third quarter of 1972 had finished deliberations and second- President ordered, "that the plebiscite scheduled to be held January 15,
the Court and the significance to our people and in history of the individual reading voting only on an insignificant number of proposals — until 1973, be postponed until further notice".
stands of the members of the Court in relation to said issues and to the September 21, 1972, when the President, not altogether unexpectedly, yet
final outcome of these cases, and considering that I reserved before the abruptly, issued Proclamation 1081 declaring martial law throughout the In the meanwhile also, on January 5, 1973, the President issued
filing of a more extended opinion, I will take this opportunity to explain country. An attempt was made to have the Convention recessed until after Presidential Decree, No. 86-A providing as follows:
further why I hold that the 1973 Constitution is already in force, if only to the lifting of martial law, and not long after the motion of Delegate Kalaw
clarify that apart from the people's right of revolution to which I made to such effect was turned down, the activities within the assembly shifted
pointed reference in my previous opinion, I can see now, after further to high gear. As if unmindful of the arrest and continued detention of
reflection, that the vote of the people in the referendum in the Citizens several of its members, the convention gathered swift momentum in its
Assemblies held on January 10 to 15, 1973, upon the result of which work, and on November 30, 1972, it approved by overwhelming vote the STRENGTHENING AND DEFINING THE ROLE OF
Proclamation 1102 is based, may be viewed more importantly as a political draft of a complete constitution, instead of mere specific amendments of BARANGAYS (CITIZENS ASSEMBLIES)
act than as a purely legal one with the result that such vote to consider the particular portions of the Constitution of 1935. Needless to say, before
1973 Constitution as ratified without the necessity of holding a plebiscite in martial law was declared, there was full and unlimited coverage of the WHEREAS, on the basis of preliminary and initial
the form followed in the previous ratification plebiscites in 1935 of the workings in the convention by the mass media. At the same time, public reports from the field as gathered from barangays
Constitution itself, 1937 of women's suffrage, 1939 of the amendments to debates and discussions on various aspects of proposed amendments were (citizens assemblies) that have so far been established,
the Ordinance Appended to the Constitution, 1940 of the re-election of the not uncommon. the people would like to decide for themselves
President, the bicameral legislature and the Commission on Elections, 1947 questions or issues, both local and national, affecting
of the parity amendment and 1967, rejecting the proposed increase in the Earlier, on November 22, 1972, the Convention had Resolution No. 5843 their day-to-day lives and their future;
members of the House of Representatives and eligibility of members of proposing "to President Ferdinand Marcos that a decree be issued calling a
Congress to the Constitutional Convention, may be deemed as a valid plebiscite for ratification of the proposed new Constitution on appropriate WHEREAS, the barangays (citizens assemblies) would
ratification substantially in compliance with the basic intent of Article XV of date as he shall determine and providing for necessary funds therefor." like themselves to be the vehicle for expressing the
the 1935 Constitution. If indeed this explanation may be considered as a Acting under this authority, December 1, 1972, the President issued views of the people on important national issues;
modification of my rationalization then, I wish to emphasize that my Presidential Decree No. 73 submitting the draft constitution for ratification
position as to the fundamental issue regarding the enforceability of the by the people at a plebiscite set for January 15, 1973. This order contained
new Constitution is even firmer now than ever before. As I shall elucidate WHEREAS, such barangays (citizens assemblies) desire
provisions more or less similar to the plebiscite laws passed by Congress that they be given legal status and due recognition as
anon, paramount considerations of national import have led me to the relative to the past plebiscites held in connection with previous proposed
conviction that the best interests of all concerned would be best served by constituting the genuine, legitimate and valid
amendments. expression of the popular will; and
the Supreme Court holding that the 1973 Constitution is now in force, not
necessarily as a consequence of the revolutionary concept previously
In connection with the plebiscite thus contemplated, General Order No. 17 WHEREAS, the people would like the citizens
suggested by me, but upon the ground that as a political, more than as a
was issued ordering and enjoining the authorities to allow and encourage assemblies to conduct immediately a referendum on
legal, act of the people, the result of the referendum may be construed as
public and free discussions on proposed constitution. Not only this, certain specified questions such as the ratification of
a compliance with the substantiality of Article XV of the 1935 Constitution.
subsequently, under date of December 17, 1972, the President ordered the the new Constitution, continuance of martial law, the
suspension the effects of martial law and lifted the suspension of privilege convening of Congress on January 22, 1973, and the
I of the writ of habeas corpus insofar as activities connected with the
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elections in November 1973 pursuant to the 1935 DEFINING FURTHER THE ROLE OF BARANGAYS (CITIZENS (2) Do you like the reforms under martial law?
Constitution. ASSEMBLIES)
(3) Do you like Congress again to hold sessions?
NOW, THEREFORE, I, FERDINAND E. MARCOS, President WHEREAS, since their creation pursuant to Presidential
of the Philippines, by virtue of the powers vested in me Decree No. 86 dated December 31, 1972, the (4) Do you like the plebiscite to be held later?
by the Constitution as Commander-in-Chief of all Barangays (Citizens Assemblies) have petitioned the
Armed Forces of the Philippines, do hereby declare as Office of the President to submit them for resolution
(5) Do you like the way President Marcos is running the
part of the law of the land the following: important national issues;
affairs of the government?.

1. The present barangays (citizens assemblies) are WHEREAS, one of the questions persistently mentioned
but on January 11, 1973, six questions were added as follows:
created under Presidential Decree No. 86 dated refers to the ratification of the Constitution proposed
December 31, 1972, shall constitute the base for citizen by the 1971 Constitutional Convention;
participation in governmental affairs and their (1) Do you approve of the citizens assemblies as the
collective views shall be considered in the formulation base of popular government to decide issues of
WHEREAS, on the basis of the said petitions, it is
of national policies or programs and, wherever national interests?
evident that the people believe that the submission of
practicable, shall be translated into concrete and the proposed Constitution to the Citizens Assemblies or
specific decision; Barangays should be taken as a plebiscite in itself in (2) Do you approve of the New Constitution?
view of the fact that freedom of debate has always
2. Such barangays (citizens assemblies) shall consider been limited to the leadership in political, economic (3) Do you want a plebiscite to be called to ratify the
vital national issues now confronting the country, like and social fields, and that it is now necessary to bring new Constitution?
the holding of the plebiscite on the new Constitution, this down to the level of the people themselves
the continuation of martial rule, the convening of through the Barangays or Citizens Assemblies; (4) Do you want the elections to be held in November,
Congress on January 22, 1973, and the holding of 1973 in accordance with the provisions of the 1935
elections in November 1973, and others in the future, NOW THEREFORE, I, FERDINAND E. MARCOS, President Constitution?
which shall serve as guide or basis for action or decision of the Philippines, by virtue of the powers in me vested
by the national government; by the Constitution, do hereby order that important (5) If the elections would not be held, when do you
national issues shall from time to time be referred to want it to be called?
3. The barangays (citizens assemblies) shall conduct the Barangays (Citizens Assemblies) for resolution in
between January 10 and 15, 1973, a referendum on accordance with Presidential Decree No. 86-A dated
important national issues, including those specified in January 5, 1973 and that the initial referendum shall (6) Do you want martial law to continue?
paragraph 2 hereof, and submit results thereof to the include the matter of ratification of the Constitution
Department of Local Governments Community proposed by the 1971 Constitutional Convention. It is not seriously denied that together with the question the voters were
Development immediately thereafter, pursuant to furnished "comments" on the said questions more or less suggestive of the
express will of the people as reflected in the reports The Secretary of the Department of Local Governments answer desired. It may assumed that the said "comments" came from
gathered from the many thousands of barangays and Community Development shall insure the official sources, albeit specifically unidentified. As petitioners point out, the
(citizens assemblies) throughout the country. implementation of this Order. most relevant of these "comments" were the following:

4. This Decree shall take effect immediately. Done in the City of Manila, this 7th day of January in COMMENTS ON
the year of Our Lord, nineteen hundred and seventy-
Done in the City of Manila, this 5th day of January, in three. xxx xxx xxx
the year of Our Lord, nineteen hundred and seventy
three. And so it was that by January 10, 1973, when the Citizens Assemblies thus QUESTION No. 2
created started the referendum which was held from said date to January
And on January 7, 1973, this was followed by Presidential Decree No. 86-B 15, 1973, the following questions were submitted to them: But we do not want the Ad Interim
reading thus: Assembly to be convoke. Or if it is
(1) Do you like the New Society? to be convened at all, it should not
PRESIDENTIAL DECREE NO. 86-B be done so until after at least seven
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(7) years from the approval of the The development culminated in the issuance by the President of that the vote of the Barangays (Citizens Assemblies)
New Constitution by the Citizens Proclamation 1102 on January 17, 1973. Said proclamation reads: should be considered as a vote in a plebiscite;
PROCLAMATION NO. 1102 ANNOUNCING THE WHEREAS, since the referendum results show that
QUESTION No. 3 RATIFICATION BY THE FILIPINO PEOPLE OF THE more than ninety-five (95) percent of the members of
CONSTITUTION PROPOSED BY THE 1971 the Barangays (Citizen Assemblies) are in favor of the
The vote of the Citizens Assemblies CONSTITUTIONAL CONVENTION. New Constitution, the Katipunan ng Mga Barangay has
should already be considered the strongly recommended that the new Constitution
plebiscite on the New Constitution. WHEREAS, the Constitution proposed by the nineteen should already be deemed ratified by the Filipino
hundred seventy-one Constitutional Convention is people;
If the Citizens Assemblies approve subject to ratification by the Filipino people;
of the new Constitution then the NOW, THEREFORE, I, FERDINAND E. MARCOS, President
new Constitution should be WHEREAS, Citizens Assemblies were created in barrios of the Philippines, by virtue of the powers in me vested
deemed ratified. in municipalities and in districts/wards in chartered by the Constitution, do hereby certify and proclaim that
cities pursuant to Presidential Decree No. 6, dated the Constitution proposed by the nineteen hundred
December 31, 1972, composed of all persons who are and seventy-one (1971) Constitutional Convention has
The Solicitor General claims, and there seems to be showing otherwise,
residents of the barrio, district or ward for at least six been ratified by an overwhelmingly majority of all of
that the results of the referendum were determined in the following
months, fifteen years of age or over, citizens of the the votes cast by the members of all the Barangays
Philippines and who are registered in the list of Citizen (Citizens Assemblies) throughout the Philippines, and
Assembly members kept by the barrio, district or ward has thereby come into effect.
Thereafter, the results of the voting were collated and
sent to the Department of Local Governments. The
IN WITNESS WHEREOF, I have hereunto set my hand
transmission of the results was made by telegram,
WHEREAS, the said Citizens Assemblies were establish and caused the seal of the Republic of the Philippines
telephone, the provincial government SSB System in
precisely to broaden the base of citizen participation in to be affixed.
each province connecting all towns; the SSB
communication of the PACD connecting most the democratic process and to afford ample
provinces; the Department of Public Information opportunity for the citizen to express their views on Done in the City of Manila, this 17th day of January, in
Network System; the Weather Bureau Communication important national issues; the year of Our Lord, nineteen hundred and seventy-
System connecting all provincial capitals and the three.
National Civil Defense Network connecting all WHEREAS, responding to the clamor of the people an
provincial capitals. The certificates of results were then pursuant to Presidential Decree No. 86-A, dated The first attempt to question the steps just enumerated taken by the
flown to Manila to confirm the previous figures January 5, 1973, the following questions were posed President was in the so-called Plebiscite Cases, ten in number, which were
received by the aforementioned means of before Citizens' Assemblies or Barangays: Do you filed by different petitioners during the first half of December 1972.1 Their
transmission. The certificates of results tallied with the approve of the New Constitution? Do you still want a common target then was Presidential Decree No. 73, but before the said
previous figures taken with the exception of few cases plebiscite to be called to ratify the new Constitution? cases could be decided, the series of moves tending in effect to make them
of clerical errors. moot and academic insofar as they referred exclusively to the said
WHEREAS, fourteen million nine hundred seventy-six Presidential Decree began to take shape upon the issuance of Presidential
The Department adopted a system of regionalizing the thousand five hundred sixty one (14,976,561) members Decree No. 86-A, quoted above. And when Presidential Decree No. 86-B,
receiving section of the Citizens Assemblies operation of all the Barangays (Citizens Assemblies) voted for the also above quoted, was issued and the six additional questions which were
at the Department wherein the identity of the barrio adoption of the proposed Constitution, as against first publicized on January 11, 1973 were known, together with the
and the province was immediately given to a staff in seven hundred forty-three thousand eight hundred "comments", petitioners sensed that a new and unorthodox procedure was
charge of each region. Every afternoon at 2:00 o'clock, sixty nine (743,869) who voted for its rejection; while being adopted to secure approval by the people of the new Constitution,
the 11 regions submitted the figures they received on the question as to whether or not the people would hence Counsel Tañada, not being satisfied with the fate of his urgent
from the field to the central committee to tabulate the still like a plebiscite to be called to ratify the new motion for early decision of the above ten cases dated January 12, 1973,
returns. The last figures were tabulated at 12 midnight Constitution fourteen million two hundred ninety-eight filed on January 15, 1973, his supplemental motion seeking the prohibition
of January 16, 1973 and early morning of January 17, thousand eight hundred fourteen (14,298,814) against and injunction of the proceedings going on. Principal objective was
1973 and were then communicated to the President by answered that there was no need for plebiscite and to prevent that the President be furnished the report of the results of the
the Department of Local Governments. referendum and thereby disable him from carrying out what petitioners
were apprehensively foreseeing would be done — the issuance of some
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kind of proclamation, order or decree, declaring that the new Constitution While I agree that the problem is at first blush rather involved, I do not have no alternative but adopt in the present situation the orthodox rule
had been ratified. Reacting swiftly, the Court resolved on the same day, share the view that the premises laid down by counsel necessarily preclude that when validity of an act or law is challenged as being repugnant
January 15, which was Monday, to consider the supplemental motion as a this Court from taking a definite stand on whether the Court is acting in constitutional mandate, the same is allowed to have effect until the
supplemental petition and to require the respondents to answer the same these cases as the 15-Man or the 11-man Court. I feel very strongly that Supreme Court rules that it is unconstitutional. Stated differently, We have
the next Wednesday, January 17th, before the hour of the hearing of the the issue should not be ignored or dodged, if only to make the world know to proceed on the assumption that the new Constitution is in force and
petition which set for 9:30 o'clock in the morning of that day. The details that the Supreme Court of the Philippines is never incognizant of the that We are acting in these cases as the 15-man Supreme Court provided
what happened that morning form part of the recital of facts the decision capacity in which it is acting, much less lacking in courage or wisdom to for there Contrary to counsel's contention, there is here no prejudgment
rendered by this Court in the ten cases on January 22, 1973 and need not resolve an issue that relates directly to its own composition. What a for or against any of the two constitutions. The truth of matter is simply
be repeated here. Suffice it to state no that before the hearing could be disgrace it would be to admit that this Supreme Court does not know, to that in the normal and logical conduct governmental activities, it is neither
closed and while Counsel Tañada was still insisting on his prayer for use a common apt expression, whether it is fish or fowl. Withal, scholars practical nor wise to defer the course of any action until after the courts
preliminary injunction or restraining order, the Secretary of Justice arrived and researchers who might go over our records in the future will inevitably have ascertained their legality, not only because if that were to be the rule,
and personally handed to the Chief Justice a copy Proclamation 1102 which examine minutely how each of us voted and upon what considerations we the functioning of government would correspondingly be undesirably
had been issued at about 11:00 o'clock that same morning. In other words, have individually acted, and, indeed, doubts may arise as to whether or hesitative and cumbersome, but more importantly, because the courts
the valiant and persistent efforts of petitioners and their counsels were not, despite the general result we might announce, there had been the must at the first instance accord due respect to the acts of the other
overtaken by adverse developments, and in the mind of the majority of the requisite number of votes for a valid collegiate action. departments, as otherwise, the smooth running of the government would
members of the Court, the cases had become academic. For my part, I took have to depend entirely on the unanimity of opinions among all its
the view that even on the basis of the supplemental petition and the For instance, it may be argued that the present cases do not involve an departments, which is hardly possible, unless it is assumed that only the
answer thereto filed by respondents, the Court could already decide on the issue of unconstitutionality, hence, if we are acting as the 11-man Court, judges have the exclusive prerogative of making and enforcing the law,
fundamental issue of the validity Proclamation 1102, as Justices Zaldivar, only six votes would suffice to declare Proclamation 1102 ineffective, and if aside from being its sole interpreter, which is contrary to all norms of
Antonio and Esguerra also believed, inasmuch as Counsel Tañada's upon analysis of our respective opinions it should be inferable therefrom juridical and political thinking. To my knowledge, there is yet no country in
pleading and argument had anticipated its issuance, but the majority felt it that six of us have considered the matter before the Court as justiciable the world that has recognized judicial supremacy as its basic governmental
was not ready to resolve the matter, for lack, according them, of full and at the same time have found the procedure of ratification adopted in principle, no matter how desirable we might believe the idea to be.
ventilation, and so, the decision reserved petitioners the filing of the Presidential Decrees 86-A and 86-B and related orders of the President as
"appropriate" cases, evidently, the present ones. not being in conformity with Article XV of the old Constitution, a cloud Indeed, it is not hard to visualize the difficulty if not absurdity of Our acting
would exist as to efficacy of the dispositive portion of Our decision dismiss on the assumption that this Court is still functioning under the 1935
II these cases, even if we have it understood that by the vote of justices in Constitution. It is undeniable that the whole government, including the
favor of such dismissal, We intended to mean the implementation or provincial, municipal and barrio units and not excluding the lower courts
At the threshold, I find myself confronted by a matter which, although enforcement of the new Constitution now being done could continue. up to the Court of Appeals, is operating under the 1973 Constitution.
believed to be inconsequential by my learned brethren, I strongly feel Almost daily, presidential orders and decrees of the most legislative
needs special attention. I refer to the point raised by Counsel Arturo M. Be that as it may, I am against leaving such an important point open to character affecting practically every aspect of governmental and private
Tolentino for respondent Gil J. Puyat and Jose Roy, who have been sued as speculation. By nature I am averse to ambiguity and equivocation and as a activity as well as the relations between the government and the citizenry
President and President Pro Tempore of the Senate, to the effect that member of the Supreme Court, last thing I should knowingly countenance are pouring out from Malacañang under the authority of said Constitution.
change in the composition of the Supreme Court provided for the 1973 is uncertainty as to the juridical significance of any decision of the Court On the other hand, taxes are being exacted and penalties in connection
Constitution, from the 11-man tribunal under the 1935 Constitution to a which is precisely being looked upon as the haven in which doubts are therewith are being imposed under said orders and decrees. Obligations
15-man Court, makes of these cases which were filed after January 17, supposed to be authoritatively dispelled. Besides, from very nature of have been contracted and business and industrial plans have been and are
1973 the date when Proclamation 1102 declared the new Constitution as things, one thing is indubitably beyond dispute — we cannot act in both being projected pursuant to them. Displacements of public officials and
ratified, political nature and beyond our jurisdiction. The main capacities of a 15-man and an 11-man Court at the same time, in like employees in big numbers are going on in obedience to them. For the ten
consideration submitted in this connection is that inasmuch as the number manner that it is inconceivable that the 1935 and 1973 Constitution can be justices of the Supreme Court to constitute an island of resistance in the
votes needed for a decision of this Court has been increased from six to considered by Us both in force. Our inescapable duty is to make a choice midst of these developments, which even unreasoning obstinacy cannot
eight in ordinary cases and from eight to ten for the declaration of between them, according to what law and other considerations inherent to ignore, much less impede, is unimaginable, let alone the absurd and
unconstitutionality of a treaty, executive agreement 2 or law, the Court our function dictate. I cannot bear the thought that someone may complicated consequences such a position entails in the internal workings
would have to resolve first as a prejudicial question whether the Court is someday say that the Supreme Court of the Philippines once decided a within the judiciary amount its different components, what with the lower
acting in these cases as the 15-man or the 11-man Court, in which event, it case without knowing the basis of its author to act or that it was ever courts considering such orders and decrees as forming part of the law of
would be faced with the dilemma that if it acts either as the former or as wanting in judicial courage to define the same. the land in making their orders and decisions, whereas the Supreme Court
the latter, it would be prejudging the very matter in issue one way or the is holding, as it were, their effectivity at bay if it is not being indifferent to
other, and, in effect, it would be choosing between two constitutions, or ignoring them.
Accordingly, with full consciousness of my limitations but compelled by my
which is a political determination not within the Court's competence. 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
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It is suggested that the President, being a man of law, committed to abide the President, obviously meant to encompass those issued during martial other form of ratification can be considered contemplated by the framers
by the decision of the Supreme Court, and if the Court feels that it cannot law, is a commitment to the concept of martial law powers being of the Old Constitution than that which had been followed 1935, 1937,
in the meantime consider the enforcement of the new Constitution, he can implemented by President Marcos, in defiance of traditional views and 1939, 1940, 1946 and 1967, the last three or four which were held under
wait for its decision. Accepting the truth of this assertion, it does prevailing jurisprudence, to the effect that the Executive's power of the supervision of the Commission on Elections. Furthermore, they
necessarily follow that by this attitude of the President, considers the legislation during a regime of martial law is all inclusive and is not limited emphatically deny the veracity of the proclaimed results of the referendum
Supreme Court as still operating under the Constitution. Quite on the to the matters demanded by military necessity. In other words, the new because, according to them the referendum was a farce and its results
contrary, it is a fact that he has given instructions for the payment of the constitution unlike any other constitution countenances the institution by were manufactured or prefabricated, considering that Mr. Francisco Cruz,
justices in accordance with the rate fixed in the New Constitution. Not only the executive of reforms which normally is the exclusive attribute of the who is supposed to have submitted the final report to the President, which
that, official alter ego, the Secretary of Justice, has been shoving this Court, legislature. served as basis for Proclamation 1102, had no official authority to render
since January 18, 1973, all matters related to the administrative the same, and it is inconceivable and humanly impossible for anyone to
supervision of the lower courts which by the new charter has been Withal, the best proofs that by its expressed and implied intent, the have been able to gather, tabulate and canvass the 15 million votes
transferred from the Department of Justice to the Supreme Court, and as Constitution of 1973 is a new one, are that (1) Section 16 of its Article XVII allegedly reported within the short period of time employed. Of course,
far as I know, President has not countermanded the Secretary's steps in which provides that this constitution shall "supersede the Constitution of they also contend that in any event, there was no proper submission
that direction. That, on the other hand, the President has not augmented nineteen hundred and thirty-five and all amendments thereto" and (2) its because martial law per se creates constructive duress which deprives the
the justices of the Court to complete the prescribed number of fifteen is, in transitory provisions expressly continue the effectivity of existing laws, voters of the complete freedom needed for the exercise of their right of
my appraisal, of no consequence considering that with the presence of ten offices and courts as well as the tenure of all incumbent officials, not choice and actually, there was neither time nor opportunity for real debate
justices who are the Court now, there is a working quorum, and the adversely affected by it, which would have been unnecessary if the old before they voted.
addition of new justices cannot in anyway affect the voting on the constitution were being merely amended.
constitutional questions now before Us because, while there sufficient On the other hand, the position of the Solicitor General as counsel for the
justices to declare by their unanimous vote illegality of Proclamation 1102, respondents is that the matter raised in the petitions is a political one
The new Constitution, in its Section 10, Article XVII, provides that "(T)he
the votes of the justices to added would only be committed to upholding which the courts are not supposed to inquire into, and, anyway, there has
incumbent members of the Judiciary (which include the Chief Justice and
the same, since they cannot by any standard be expected to vote against been a substantial compliance with Article XV of the 1935 Constitution,
Associate Justices of Supreme Court) may continue in office (under the
legality of the very Constitution under which they would be appointed. inasmuch as, disregarding unessential matters of form, the undeniable fact
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- is that the voting in the referendum resulted in the approval by the people
Moreover, what makes the premise of presumptive valid preferable and, Court provided for therein correspondingly, We have in legal of the New Constitution.
even imperative, is that We are dealing here with a whole constitution that contemplation, ceased in the meanwhile to be members of the 11-man-
radically modifies or alters only the form of our government from Court in the 1935 Constitution. Should the Court finally decide that the I need not dwell at length on these variant positions of the parties. In my
presidential parliamentary but also other constitutionally institutions vitally Constitution is invalid, then We would automatically revert to our positions separate opinion in the Plebiscite Cases, I already made the observation
affecting all levels of society. It is, to mind, unrealistic to insist on that, in the 11-man- Court, otherwise, We would just continue to be in our that in view of the lack of solemnity and regularity in the voting as well as
fundamentally, the 1973 Constitution is the same 1935 Constitution, with a membership in the 15-man-Court, unless We feel We cannot in conscience in the manner of reporting and canvassing conducted in connection with
few improvements. A cursory perusal of the former should convince accept the legality of existence. On the other hand, if it is assumed that We the referendum, I cannot say that Article XV of the Old Constitution has
anyone that it is in essence a new one. While it does retain republicanism are the 11-man-Court and it happens that Our collective decision is in favor been complied with, albeit I held that nonetheless, the Constitution of
as the basic governmental tenet, the institutional changes introduced of the new constitution, it would be problematical for any dissenting justice 1973 is already in force. In order, however, to make myself clearer on some
thereby are rather radical and its social orientation is decidedly more to consider himself as included automatically in the 15-man-Court, since relevant points, I would like to add a few considerations to what I have
socialistic, just as its nationalistic features are somewhat different in that would tantamount to accepting a position he does not honestly already said in the former cases.
certain respects. One cannot but note that the change embraces practically believe exists.
every part of the old charter, from its preamble down to its amending and
In my opinion in those cases, the most important point I took into account
effectivity clauses, involving as they do the statement of general principles,
III was that in the face of the Presidential certification through Proclamation
the citizenship and suffrage qualifications, the articles on the form of
1102 itself that the New Constitution has been approved by a majority of
government, the judiciary provisions, the spelling out of the duties and
In brief, the main contention of the petitioners is that Proclamation 1102 is the people and having in mind facts of general knowledge which I have
responsibilities not only of citizens but also of officers of the government
invalid because the ratification of the 1973 Constitution it purports to judicial notice of, I am in no position to deny that the result of the
and the provisions on the national economy as well as the patrimony of the
declare as having taken place as a result of the referendum above-referred referendum was as the President had stated. I can believe that the figures
nation, not to mention the distinctive features of the general provisions.
to is ineffective since it cannot be said on the basis of the said referendum referred to in the proclamation may not accurate, but I cannot say in
What is more, the transitory provisions notably depart from traditional and
that said Constitution has been "approved by a majority of the votes cast at conscience that all of them are manufactured or prefabricated, simply
orthodox views in that, in general, the powers of government during the
an election" in the manner prescribed by Article XV the Constitution of because I saw with own eyes that people did actually gather and listen
interim period are more or less concentrated in the President, to the
1935. More specifically, they maintain that the word "election" in the said discussions, if brief and inadequate for those who are abreast of current
extent that the continuation or discontinuance of what is now practically a
Article has already acquired a definite accepted meaning out of the events and general occurrences, and that they did vote. I believe I can
one-man-rule, is even left to his discretion. Notably, the express ratification
consistent holding in the past of ratification plebiscites, and accordingly, no safely say that what I have seen have also been seen by many others
of all proclamations, orders, decrees and acts previously issued or done by
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throughout the country and unless it can be assumed, which honestly, I do Fred Ruiz Castro whose mastery of the English language can rightly be the otherwise, in the context of actualities, the evident objective in having a
not believe to be possible, that in fact there were actually no meetings held cause of envy of even professors of English. None of the other members of new constitution is to establish new directions in the pursuit of the
and no voting done in more places than those wherein there were such the Court, as far as I can recall, ever noticed how the said question is national aspirations and the carrying out of national policies. Only by
meetings and votings, I am not prepared to discredit entirely the phrased, or if anyone of Us did, I am not aware that he gave it more than bearing these considerations in mind can the "comments" already referred
declaration that there was voting and that the majority of the votes were passing attention. What I mean is that if neither any of the distinguished to be properly appreciated. To others said "comments" may appear as
in favor of the New Constitution. If in fact there were substantially less and learned counsels nor any member of the Court understood the said evidence of corruption of the will of those who attended the assemblies,
than 14 million votes of approval, the real figure, in my estimate, could still question otherwise than calling for a factual answer instead of a mere but actually, they may also be viewed in the same light as the sample
be significant enough and legally sufficient to serve as basis for a valid opinion, how could anyone expect the millions of unlettered members of ballots commonly resorted to in the elections of officials, which no one can
ratification. the Citizens Assemblies to have noticed the point brought out by Justice contend are per se means of coercion. Let us not forget that the times are
Castro? Truth to tell, I myself did not realize the difference until Justice abnormal, and prolonged dialogue and exchange of ideas are not generally
It is contended, however, that the understanding was that the referendum Castro gave it emphasis. Besides, reading the question in the light of the possible, nor practical, considering the need for faster decisions and more
among the Citizens Assemblies was to be in the nature merely of a loose accompanying "comment" corresponding to it in particular, I am certain resolute action. After all voting on a whole new constitution is different
consultation and not an outright submission for purposes of ratification. I that any one who answered the same understood it in no other sense than from voting on one, two or three specific proposed amendments, the
can see that at the outset, when the first set of questions was released, a direct inquiry as to whether or not, as a matter of fact, he approves the former calls for nothing more than a collective view of all the provisions of
such may have been the idea. It must not be lost sight of, however, that if New Constitution, and naturally, affirmative answer must be taken as a the whole charter, for necessarily, one has to take the good together with
the newspaper reports are to be believed, and I say this only because categorical vote of approval thereof, considering, particularly, that the bad in it. It is rare for anyone to reject a constitution only because of a
petitioners would consider the newspapers as the official gazettes of the according to the reported result of the referendum said answer was even few specific objectionable features, no matter how substantial, considering
administration, the last set of six questions were included precisely coupled with the request that the President defer the convening of the the ever present possibility that after all it may be cured by subsequent
because the reaction to the idea of mere consultation was that the people Interim National Assembly. amendment. Accordingly, there was need to indicate to the people the
wanted greater direct participation, thru the Citizens Assemblies, in paths open to them in their quest for the betterment of their conditions,
decision-making regarding matters of vital national interest. Thus, looking It is also contended that because of this reference in answer to that and as long as it is not shown that those who did not agree to the
at things more understandingly and realistically the two questions question to the deferment of the convening of the interim assembly, the suggestions in the "comments" were actually compelled to vote against
emphasized by counsel, namely, (1) Do yo approve of the New said answer is at best a conditional approval not proper nor acceptable for their will, I am not convinced that the existence of said "comments" should
Constitution? and (2) Do you want plebiscite to be called to ratify the new purposes of ratification plebiscite. The contention has no basis. In interest make any appreciable difference in the court's appraisal of the result of the
Constitution? should be considered no longer as loose consultations but as of accuracy, the additional answer proposed in pertinent "comment" reads referendum.
direct inquiries about the desire of the voters regarding the matters as follows: "But we do not want Ad Interim Assembly to be convoked etc."
mentioned. Accordingly, I take it that if the majority had expressed On the assumption that the actual answer, as reported, was of similar I must confess that the fact that the referendum was held during martial
disapproval of the new Constitution, the logical consequence would have tenor, it is not fair to ascribe to it the imposition of a condition. At most, law detracts somehow from the value that the referendum would
been the complete abandonment of the idea of holding any plebiscite at the intention is no more than a suggestion or a wish. otherwise have had. As I intimated, however, in my former opinion, it is
all. On the other hand, it is very plain to see that since the majority has not fair to condemn and disregard the result of the referendum barely
already approved the new Constitution, a plebiscite would be superfluous. As regards said "comments", it must be considered that a martial law was because of martial law per se. For one thing, many of the objectionable
Clear as these rationalizations may be, it must have been thought that if declared, the circumstances surrounding making of the Constitution features of martial law have not actually materialized, if only because the
the holding of a plebiscite was to be abandoned, there should be a direct acquired a different and more meaningful aspect, namely, the formation of implementation of martial law since its inception has been generally
and expressed desire of the people to such effect in order to forestall as a new society. From the point of view of the President and on the basis of characterized by restraint and consideration, thanks to the expressed
much as possible any serious controversy regarding the non-holding of the intelligence reports available to him, the only way to meet situation wishes of the President that the same be made "Philippine style", which
plebiscite required by the letter of Section 16 of Article XVII, the effectivity created by the subversive elements was to introduce immediately effective means without the rigor that has attended it in other lands and other
clause, of the new Constitution. Oddly enough, the "comments" reforms calculated to redeem the people from the depth of retrogression times. Moreover, although the restrictions on the freedom of speech, the
accompanying the questions do strongly suggest this view. And as it turned and stagnation caused by rampant graft and corruption in high places, press and movement during martial law do have their corresponding
out, the majority found no necessity in holding a plebiscite. influence peddling, oligarchic political practices, private armies, anarchy, adverse effects on the area of information which should be open to a
deteriorating conditions of peace and order, the so inequalities widening voter, in its real sense what "chills" his freedom of choice and mars his
In connection with the question, Do you approve of the New Constitution? the gap between the rich and the poor, and many other deplorable long exercise of discretion is suspension of the privilege of the writ of habeas
capital is being made of the point that as so framed, the thrust of the said standing maladies crying for early relief and solution. Definitely, as in the corpus. The reason is simply that a man may freely and correctly vote even
question does not seek an answer of fact but of opinion. It is argued that it case of rebellious movement that threatened the Quirino Administration, if the needed information he possesses as to the candidates or issues being
would have been factual were it worded categorically thus — Do you the remedy was far from using bullets alone. If a constitution was to be voted upon is more or less incomplete, but when he is subject to arrest and
approve the New Constitution? The contention would have been weighty approved as an effective instrument towards the eradication of such grave detention without investigation and without being informed of the cause
were it not unrealistic. I remember distinctly that the observation problems, it had to be approved without loss of time and sans the thereof, that is something else which may actually cause him to cast a
regarding the construction of the subject question was not originally made cumbersome processes that, from the realistic viewpoint, have in the past captive vote. Thus it is the suspension of the writ of habeas
by any of the talented counsels for petitioners. It came from Mr. Justice obstructed rather than hastened the progress of the people. Stated 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,
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borne by history and actual experience, that in the Philippines, the in the record and in the circumstances the Court can take judicial notice of. 1. Consider that in the present case what is involved is not just an
suspension of the privilege of the writ habeas corpus has never produced For my part, I consider it unnecessary to be strictly judicial in inquiring into amendment of a particular provision of an existing Constitution; here, it is,
any chilling effect upon the voters, since it is known by all that only those such fact. Being personally aware, as I have already stated, that the Citizens as I have discussed earlier above, an entirely new Constitution that is being
who run afoul the law, saving inconsequential instances, have any cause Assemblies did meet and vote, if irregularly and crudely, it is not for me to proposed. This important circumstance makes a great deal of difference.
for apprehension in regard to the conduct by them of the normal activities resort, for the purposes of these cases, to judicial tape and measure, to
of life. And so it is recorded that in the elections 1951 and 1971, held while find out with absolute precision the veracity of the total number of votes No less than counsel Tolentino for herein respondents Puyat and Roy, who
the privilege of writ of habeas corpus was under suspension, the Filipino actually cast. After all, the claims that upon a comparison of conflicting was himself the petitioner in the case I have just referred to is, now inviting
voters gave the then opposition parties overwhelming if not sweeping reports, cases of excess votes may be found, even if extrapolated will not, Our attention to the exact language of Article XV and suggesting that the
victories, in defiance of the respective administrations that ordered the as far as I can figure out, suffice to overcome the outcome officially said Article may be strictly applied to proposed amendments but may
suspensions. announced. Rather than try to form a conclusion out of the raw evidence hardly govern the ratification of a new Constitution. It is particularly
before Us which the parties did not care to really complete, I feel safer by stressed that the Article specifically refers to nothing else but
At this juncture, I think it is fit to make it clear that I am not trying to show referring to the results announced in the proclamation itself. Giving "amendments to this Constitution" which if ratified "shall be valid as part
that the result of the referendum may considered as sufficient basis for substantial allowances for possible error and downright manipulation, it of this Constitution." Indeed, how can a whole new constitution be by any
declaring that the New Constitution has been ratified in accordance with must not be overlooked that, after all, their having been accepted and manner of reasoning an amendment to any other constitution and how can
the amending clause of the 1935 Constitution. I reiterate that in point of adopted by the President, based on official reports submitted to him in due it, if ratified, form part of such other constitution? In fact, in the Tolentino
law, I find neither strict nor substantial compliance. The foregoing course of performance of duty of appropriate subordinate officials, case I already somehow hinted this point when I made reference in the
discussion is only to counter, if I may, certain impression regarding the elevated them to the category of an act of a coordinate department of the resolution denying the motion for reconsideration to the fact that Article
general conditions obtaining during and in relation to the referendum government which under the principle separation of powers is clothed with XV must be followed "as long as any amendment is formulated and
which could have in one way or another affected the exercise of the presumptive correctness or at least entitled to a high degree of submitted under the aegis of the present Charter." Said resolution even
freedom of choice and the use of discretion by the members of the Citizens acceptability, until overcome by better evidence, which in these cases does added. "(T)his is not to say that the people may not, in the exercise of their
Assemblies, to the end that as far as the same conditions may be relevant not exist. In any event, considering that due to the unorthodoxy of the inherent revolutionary powers, amend the Constitution or promulgate an
in my subsequent discussions of the acceptance by the people of the New procedure adopted and the difficulty of an accurate checking of all the entirely new one otherwise.".
Constitution they may also be considered. 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
It is not strange at all to think that the amending clause of a constitution
rely on what has been officially declared. At this point, I would venture to
IV should be confined in its application only to proposed changes in any part
express the feeling that if it were not generally conceded that there has
of the same constitution itself, for the very fact that a new constitution is
been sufficient showing of the acceptance in question by this time, there
It is my sincere conviction that the Constitution of 1973 has been accepted being adopted implies a general intent to put aside the whole of the old
would have been already demonstrative and significant indications of a
or adopted by the people. And on this premise, my considered opinion is one, and what would be really incongrous is the idea that in such an
rather widespread, if not organized resistance in one form or another.
that the Court may no longer decide these cases on the basis of purely eventuality, the new Constitution would subject its going into effect to any
Much as they are to be given due recognition as magnificent
legal considerations. Factors which are non-legal but nevertheless provision of the constitution it is to supersede, to use the language
manifestations of loyalty and devotion to principles, I cannot accord to the
ponderous and compelling cannot be ignored, for their relevancy is precisely of Section 6, Article XVII, the effectivity clause, of the New
filing of these cases as indicative enough of the general attitude of the
inherent in the issue itself to be resolved. Constitution. My understanding is that generally, constitutions are self-
born, they very rarely, if at all, come into being, by virtue of any provision
of another constitution. 3 This must be the reason why every constitution
In my opinion in the Plebiscite Cases, I joined my colleagues in holding that It is true that in the opinion I had the privilege of penning the Court in has its own effectivity clause, so that if, the Constitutional Convention had
the question of whether or not there was proper submission under Tolentino vs. Comelec, 41 SCRA 702, I made strong and unequivocal only anticipated the idea of the referendum and provided for such a
Presidential Decree No. 73 is justiciable, and I still hold that the propriety of pronouncements to the effect that any amendment to the Constitution of method to be used in the ratification of the New Constitution, I would have
submission under any other law or in any other form is constitutionally a fit 1935, to be valid, must appear to have been made in strict conformity with had serious doubts as to whether Article XV could have had priority of
subject for inquiry by the courts. The ruling in the decided cases relied the requirements of Article XV thereof. What is more, that decision application.
upon by petitioners are to this effect. In view, however, of the factual asserted judicial competence to inquire into the matter of compliance or
background of the cases at bar which include ratification itself, it is non compliance as a justiciable matter. I still believe in the correctness of
necessary for me to point out that when it comes to ratification, I am 2. When an entirely new constitution is proposed to supersede the existing
those views and I would even add that I sincerely feel it reflects the spirit of
persuaded that there should be a boundary beyond which the competence one, we cannot but take into consideration the forces and the
the said constitutional provision. Without trying to strain any point
of the courts no longer has any reason for being, because the other side is circumstances dictating the replacement. From the very nature of things,
however, I, submit the following considerations in the context of the
exclusively political territory reserved for their own dominion by the the proposal to ordain a new constitution must be viewed as the most
peculiar circumstances of the cases now at bar, which are entirely different
people. eloquent expression of a people's resolute determination to bring about a
from those in the backdrop of the Tolentino rulings I have referred to.
massive change of the existing order, a meaningful transformation of the
old society and a responsive reformation of the contemporary institutions
The main basis of my opinion in the previous cases was acceptance by the
and principles. Accordingly, should any question arise as to its effectivity
people. Others may feel there is not enough indication of such acceptance
Page 44 of 158

and there is some reasonable indication that the new charter has already not alone the physical futility of such a gesture that concerns me. More article, so long as such approval is reasonably ascertained. In the last
received in one way or another the sanction of the people, I would hold than that, there is the stark reality that the Senators and the Congressmen, analysis, therefore, it can be rightly said, even if only in a broad sense, that
that the better rule is for the courts to defer to the people's judgment, so no less than the President, have taken the same oath of loyalty to the the ratification here in question was constitutionally justified and
long as they are convinced of the fact of their approval, regardless of the Constitution that we, the Justices, have taken and they are, therefore, justifiable.
form by which it is expressed provided it be reasonably feasible and equally bound with Us to preserve and protect the Constitution. If as the
reliable. Otherwise stated, in such instances, the courts should not bother representatives of the people, they have already opted to accept the New 5. Finally, if any doubt should still linger as to the legitimacy of the New
about inquiring into compliance with technical requisites, and as a matter Constitution as the more effective instrument for fulfillment of the national Constitution on legal grounds, the same should be dispelled by viewing the
of policy should consider the matter non-justiciable. destiny, I really wonder if there is even any idealistic worth in our situation in the manner suggested by Counsel Tolentino and by the writer
desperately clinging by Ourselves alone to Our sworn duty vis-a-vis the of this opinion in his separate opinion, oft-referred to above, in the
3. There is still another circumstance which I consider to be of great 1935 Constitution. Conscious of the declared objectives of the new Plebiscite Cases — that is, as an extra constitutional exercise by the people,
relevancy. I refer to the ostensible reaction of the component elements, dispensation and cognizant of the decisive steps being with the least loss of under the leadership of President Marcos, of their inalienable right to
both collective and individual, of the Congress of the Philippines. Neither time, towards their accomplishment, cannot but feel apprehensive that change their fundamental charter by any means they may deem
the Senate nor the House of Representatives has been reported to have instead of serving the best interests of our people, which to me is in reality appropriate, the moment they are convinced that the existing one is no
even made any appreciable effort or attempt to convene as they were the real meaning of our oath of office, the Court might be standing in the longer responsive to their fundamental, political and social needs nor
supposed to do under the Constitution of 1935 on January 22, 1973 for the way of the very thing our beloved country needs to retrieve its past glory conducive to the timely attainment of their national destiny. This is not
regular session. It must be assumed that being composed of experienced, and greatness. In other words, it is my conviction that what these cases only the teaching of the American Declaration of Independence but is
knowledgeable and courageous members, it would not have been difficult demand most of all is not a decision demonstrative of our legal erudition indeed, a truth that is self-evident. More, it should be regarded as implied
for said parliamentary bodies to have conceived some ingenious way of and Solomonic wisdom but an all rounded judgment resulting from the in every constitution that regardless of the language of its amending
giving evidence of their determined adherence to the Constitution under consideration of all relevant circumstances, principally the political, or, in clause, once the people have given their sanction to a new charter, the
which they were elected. Frankly, much as I admire the efforts of the brief, a decision more political than legal, which a court can render only by latter may be deemed as constitutionally permissible even from the point
handful of senators who had their picture taken in front of the padlocked deferring to the apparent judgment of the people and the announcement of view of the preceding constitution. Those who may feel restrained to
portals of the Senate chamber, I do not feel warranted to accord such act thereof by the political departments of the government and declaring the consider this view out of respect to the import of Tolentino vs.
as enough token of resistance. As counsel Tolentino has informed the matter non-justiciable. Comelec, supra., would be well advised to bear in mind that the case was
court, there was noting to stop the senators and the congressmen to meet decided in the context of submission, not accomplished ratification.
in any other convenient place and somehow officially organize themselves 4. Viewed from the strictly legal angle and in the light of judicial methods
in a way that can logically be considered as a session, even if nothing were of ascertainment, I cannot agree with the Solicitor General that in the legal V
done than to merely call the roll and disperse. Counsel Tolentino even sense, there has been at least substantial compliance with Article XV of the
pointed out that if there were not enough members to form a quorum, any 1935 Constitution, but what I can see is that in a political sense, the
The language of the disputed amending clause of the 1935 Constitution
smaller group could have ordered the arrest of the absent members. And answers to the referendum questions were not given by the people as legal
should not be deemed as the be all and end all the nation. More important
with particular relevance to the present cases, it was not constitutionally conclusions. I take it that when they answered that by their signified
than even the Constitution itself with all its excellent features, are the
indispensable for the presiding officers to issue any call to the members to approval of the New Constitution, they do not consider it necessary to hold
people living under it — their happiness, their posterity and their national
convene, hence the present prayers for mandamus have no legal and a plebiscite, they could not have had in mind any intent to do what was
destiny. There is nothing that cannot be sacrificed in the pursuit of these
factual bases. And to top it all, quite to the contrary, the records of the constitutionally improper. Basically accustomed to proceed along
objectives, which constitute the totality of the reasons for national
Commission on Elections show that at least 15 of 24 senators and over 95 constitutional channels, they must have acted in the honest conviction that
existence. The sacred liberties and freedom enshrined in it and the
out of less than 120 members of the House of Representatives, have what was being done was in conformity with prevailing constitutional
commitment and consecration thereof to the forms of democracy we have
officially and in writing exercised the option given to them to join the standards. We are not to assume that the sovereign people were indulging
hitherto observed are mere integral parts of this totality; they are less
Interim National Assembly under the New Constitution, thereby in a futile exercise of their supreme political right to choose the
important by themselves.
manifesting their acceptance of the new charter. 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 What seems to me to be bothering many of our countrymen now is that by
Now, having these facts in mind, and it being obvious that of the three
judgment herein in that context. It is my considered opinion that viewed denying the present petitions, the Court would be deemed as sanctioning,
great departments of the government under the 1935 Constitution, two,
understandingly and realistically, there is more than sufficient ground to not only the deviations from traditional democratic concepts and principles
the Executive and the Legislative, have already accepted the New
hold that, judged by such intent and, particularly, from the political but also the qualified curtailment of individual liberties now being
Constitution and recognized its enforceability and enforcement, I cannot
standpoint, the ratification of the 1973 Constitution declared in practiced, and this would amount, it is feared, to a repudiation of our oath
see how this Supreme Court can by judicial fiat hold back the political
Proclamation 1102 complies substantially with Article XV of the 1935 to support and defend the Constitution of 1935. This is certainly something
developments taking place and for the sake of being the guardian of the
Charter, specially when it is considered that the most important element of one must gravely ponder upon. When I consider, however, that the
Constitution and the defender of its integrity and supremacy make its
the ratification therein contemplated is not in the word "election", which President, the Vice President, the members of both Houses of Congress,
judicial power prevail against the decision of those who were duly chosen
conceivably can be in many feasible and manageable forms but in the word not to speak of all executive departments and bureaus under them as well
by the people to be their authorized spokesmen and representatives. It is
"approved" which may be said to constitute the substantiality of the whole as all the lower courts, including the Court of Appeals have already
Page 45 of 158

accepted the New Constitution as an instrument of a meaningful cases have entail will heal after the decision herein is promulgated, so that petitioners in G.R. No. L-36164. Regardless of the modality of submission or
nationwide-all-level change in our government and society purported to all us Filipinos may forever join hands in the pursuit of our national destiny. ratification or adoption — even if it deviates from or violates the procedure
make more realistic and feasible, rather than idealistic and cumbersomely delineated therefore by the old Constitution — once the new Constitution
deliberative, the attainment of our national aspirations, I am led to wonder IN VIEW OF ALL THE FOREGOING, I vote to dismiss these petitions is ratified, adopted and/or acquiesced in by the people or ratified even by a
whether or not we, as members of the Supreme Court are being true to for mandamus and prohibition without costs. body or agency not duly authorized therefor but is subsequently adopted
our duty to our people by refusing to follow suit and accept the realities of or recognized by the people and by the other official organs and
the moment, despite our being convinced of the sincerity and laudableness functionaries of the government established under such a new
MAKASIAR, J., concurring:
of their objectives, only because we feel that by the people's own act of Constitution, this Court is precluded from inquiring into the validity of such
ratifying the Constitution of 1935, they have so encased themselves within ratification, adoption or acquiescence and of the consequent effectivity of
its provisions and may, therefore, no longer take measures to redeem Assuming, without conceding, that Article XV of the 1935 Constitution the new Constitution. This is as it should be in a democracy, for the people
themselves from the situation brought about by the deficiencies of the old prescribes a procedure for the ratification of constitutional amendments or are the repository of all sovereign powers as well as the source of all
order, unless they act in strict conformity therewith. I cannot believe that of a new Constitution and that such procedure was no complied with, the governmental authority (Pole vs. Gray, 104 SO 2nd 841 [1958]). This basic
any people can be so stifled and enchained. In any event, I consider it a validity of Presidential Proclamation No. 1102 is a political, not a justiciable, democratic concept is expressly restated in Section 1 of Article II of the
God-given attribute of the people to disengage themselves, if necessary, issue; for it is inseparably or inextricably link with and strikes at, because it Declaration of Principles of the 1935 and 1973 Constitutions, thus:
from any covenant that would obstruct their taking what subsequently is decisive of, the validity of ratification and adoption of, as well as "Sovereignty resides in the people and all government authority emanates
appears to them to be the better road to the promotion and protection of acquiescence of people in, the 1973 Constitution and the legitimacy of the from them."
their welfare. And once they have made their decision in that respect, government organized and operating thereunder. And being political, it is
whether sophisticatedly or crudely, whether in legal form or otherwise, beyond the ambit of judicial inquiry, tested by the definition of a political
The legality of the submission is no longer relevant; because the
certainly, there can be no court or power on earth that can reverse them. question enunciated in Tañada, et. al. vs. Cuenco, et al. (103 Phil. 1051),
ratification, adoption and/or acquiescence by the people cures any
aside from the fact the this view will not do violence to rights vested under
infirmity in its submission or any other irregularities therein which are
the new Constitution, to international commitments forged pursuant
I would not be human if I should be insensitive to the passionate and deemed mandatory before submission as they are considered merely
thereto and to decisions rendered by the judicial as well as quasi-judicial
eloquent appeals of Counsels Tañada and Salonga that these cases be directory after such ratification or adoption or acquiescence by the people.
tribunals organized and functioning or whose jurisdiction has been altered
decided on the basis of conscience. That is exactly what I am doing. But if As Mr. Justice Brewer, then of the Kansas State Supreme Court and later
by the 1973 Constitution and the government established thereunder, and
counsel mean that only by granting their petitions can this Court be Associate Justice of the Federal Supreme Court, stated in re Prohibitory
will dissipate any confusion in the minds of the citizenry, who have been
worthily the bulwark of the people's faith in the government, I cannot Amendment Cases (24 Kansas 700 & 710 Reprint 499, 506): "The two
obeying the mandates of the new Constitution, as well as exercising the
agree, albeit my admiration and respect are all theirs for their zeal and important, vital elements of the Legislature and a majority of the popular
rights and performing the obligations defined by the new Constitution, and
tenacity, their industry and wisdom, their patriotism and devotion to vote. Beyond these, other provisions are mere machineries and forms. They
decrees and orders issued in implementation of the same and cooperating
principle. Verily, they have brought out everything in the Filipino that these may not be disregarded, because by them certainty as to the essentials is
with the administration in the renovation of our social, economic and
cases demand. secured. But they are not themselves the essentials." (Cited in Larken vs.
political system as re-structured by the 1973 Constitution and by the
Gronna, 285 NW 59, 61-64, 1939).
implementing decrees and orders (see Miller vs. Johnson, 18 SW 522, 522-
In times of national emergencies and crises, not arising from foreign 526, 1892).
invasion, we need not fear playing opposite roles, as long as we are all This was the ruling by the American Supreme Court in the 1939 case
animated by sincere love of country and aim exclusively at the attainment of Coleman vs. Miller (307 U.S. 433, 83 L.ed. 1385), where Chief Justice
In 1957, Mr. Chief Justice Roberto Concepcion, then Associate Justice, in
of the national destiny. Our heroes of the past, Rizal, Bonifacio, Aguinaldo, Hughes, speaking for the majority, stated that:
behalf of the Court, defined a political question as one which, under the
Antonio Luna, Mabini and so also with our patriots of the recent
Constitution, is "to be decided by the people in their sovereign capacity, or
generations, Quezon, Osmeña, Roxas, Laurel and Recto, to mention only ... Thus the political departments of the government
in regard to which full discretionary authority had been delegated to the
some of them, had their differences of views — and they did not hesitate dealt with the effect of both previous rejection and
Legislature or Executive branch of the government." (Tañada, et al. vs.
to take diametrically opposing sides — that even reached tragic attempted withdrawal and determined that both were
Cuenco, et al., supra).
proportions, but all of them are admired and venerated. ineffectual in the presence of an actual ratification ... .
This decision by the political departments of the
Article XV of the 1935 Constitution provides: "Such amendments shall be
It is my faith that to act with absolute loyalty to our country and people is Government as to the validity of the adoption of the
valid as part of this Constitution when approved by a majority of the votes
more important than loyalty to any particular precept or provision of the Fourteenth amendment has been accepted.
cast at an election at which the amendments are submitted to the people
Constitution or to the Constitution itself. My oath to abide by the
for ratification." Under Article XV of the 1935 Constitution, the power to
Constitution binds me to whatever course of action I feel sincerely is We think that in accordance with this historic
propose constitutional amendments is vested in Congress or in a
demanded by the welfare and best interests of the people. precedent the question of the efficacy of ratifications
constitutional convention; while the power to ratify or reject such
proposed amendments or new Constitution is reserved by the sovereign by state legislatures, in the light of previous rejection or
In this momentous juncture of our history, what is imperative is national people. The nullification of Proclamation No. 1102 would inevitably render attempted withdrawal, should be regarded as a
unity. May God grant that the controversies the events leading to these inoperative the 1973 Constitution, which is in fact the express prayer of the political question pertaining to the political
Page 46 of 158

departments, with the ultimate authority in the inevitably the validity of the 1973 Constitution after its ratification or Senate President, claimed by the latter; in the second,
Congress in the exercise of its control over the adoption thru acquiescence by the sovereign people. As heretofore stated, this Court proceeded to determine the number of
promulgation of the adoption of the amendment. it is specious and pure sophistry to advance the reasoning that the present Senators necessary for a quorum in the Senate; in the
petitions pray only for the nullification of the 1973 Constitution and the third we nullified the election, by Senators belonging to
This view was likewise emphasized by Mr. Justice Black in his concurring government operating thereunder. the party having the largest number of votes in said
opinion, in which Mr. Justices Roberts, Frankfurter, and Douglas join, thus: chamber purporting to act on behalf of the party
It should be stressed that even in the Gonzales case, supra, We held that: having the second largest number of votes therein, of
two (2) Senators belonging to the first party, as
The Constitution grants Congress exclusive power to
members, for the second party, of the Senate Electoral
control submission of constitutional amendments. Final Indeed, the power to amend the Constitution or to
Tribunal; and in the fourth, we declared
determination by Congress that ratification by three- propose amendments thereto is not included in the
unconstitutional an act of Congress purporting to
fourths of the States has taken place "is conclusive general grant of legislative powers to Congress. It is
apportion the representative districts for the House of
upon the courts." In the exercise of that power, part of the inherent powers of the people — as the
Representatives, upon the ground that the
Congress, of course, is governed by the Constitution. repository of sovereignty in a republican state, such as
apportionment had not been made as may be possible
However, whether submission, intervening procedure ours — to make, and hence, to amend their own
according to the number of inhabitants of each
or Congressional determination of ratification conforms Fundamental Law. Congress may propose amendments
province. Thus we rejected the theory advanced in
to the commands of the Constitution, calls for decisions to the same explicitly grants such power. Hence, when
these four (4) cases, that the issues therein raised were
by a "political department" of questions of a type which exercising the same, it is said that Senators and
political questions the determination of which is
this Court has frequently designated "political." And Members of the House of Representatives act, not as
beyond judicial review. (21 SCRA pp. 785-786);
decision of a "political question" by the "political members, but as component elements of a constituent
department" to which the Constitution has committed assembly. When acting as such, the members
it "conclusively binds the judges, as well as all other of Congress derive their authority from the for which reason We concluded
officers, citizens and subjects of...government." Constitution, unlike the people, when performing the
Proclamation under authority of Congress that an same function, for their authority does not emanate In short, the issue whether or not a resolution of
amendment has been ratified will carry with it a solemn from the Constitution — they are the very source of all Congress before acting as a constituent assembly —
assurance by the Congress that ratification has taken powers of government, including the Constitution itself. violates the Constitution is essentially justiciable, not
place as the Constitution commands. Upon this (21 SCRA 787) political, and, hence, subject to judicial review, and to
assurance a proclaimed amendment must be accepted the extent that this view may be inconsistent with the
as a part of the Constitution, leaving to the judiciary its We did not categorically and entirely overturn the doctrine in Mabanag vs. stand taken in Mabanag vs. Lopez Vito, the latter
traditional authority of interpretation. To the extent Lopez Vito (78 Phil. 1) that both the proposal to amend and the ratification should be deemed modified accordingly. (p. 787,
that the Court's opinion in the present case even of such a constitutional amendment are political in nature forming as they emphasis supplied.)
impliedly assumes a power to make judicial do the essential parts of one political scheme — the amending process. WE
interpretation of the exclusive constitutional authority merely stated therein that the force of the ruling in the said case In the Tolentino case, supra, We reiterated the foregoing statements (41
of Congress over submission and ratification of of Mabanag vs. Lopez Vito has been weakened by subsequent cases. Thus, SCRA 703-714).
amendments, we are unable to agree... (American We pronounced therein:
Constitutional Issues, by Pritchett, 1962 Ed., p. 44).
The inevitable consequence therefore is that the validity of the ratification
It is true that in Mabanag vs. Lopez Vito, this Court or adoption of or acquiescence by the people in the 1973 Constitution,
The doctrine in the aforesaid case of Coleman vs. Miller was adopted by characterizing the issue submitted thereto as a political remains a political issue removed from the jurisdiction of this Court to
Our Supreme Court in toto in Mabanag vs. Lopez Vito (78 Phil. 1). one, declined to pass upon the question whether or not review.
a given number of votes cast in Congress in favor of a
The ruling in the cases of Gonzales vs. Comelec, et al. (L-28224, Nov. 29, proposed amendment to the Constitution — which was One more word about the Gonzales and Tolentino cases. Both primarily
1967, 21 SCRA 774) and Tolentino vs. Comelec, et al. (L-34150, Oct. 16, being submitted to the people for ratification — stressed on the impropriety of the submission of a proposed constitutional
1971, 41 SCRA 702) on which petitioners place great reliance — that the satisfied the three fourths vote requirement of the amendment. Courts do not deal with propriety or wisdom or absence of
courts may review the propriety of a submission of a proposed fundamental law. The force of this precedent has been either of an official act or of a law. Judicial power concerns only with the
constitutional amendment before the ratification or adoption of such weakened, however, by Suanes vs. Chief Accountant of legality or illegality, constitutionality or unconstitutionality of an act: it
proposed amendment by the sovereign people, hardly applies to the cases the Senate, Avelino vs. Cuenco, Tañada vs. Cuenco and inquires into the existence of power or lack of it. Judicial wisdom is not to
at bar; because the issue involved in the aforesaid cases refers to only the Macias vs. Commission on Elections. In the first, we be pitted against the wisdom of the political department of the
propriety of the submission of a proposed constitutional amendment to held the officers and employees of the Senate Electoral government.
the people for ratification, unlike the present petitions, which challenge Tribunal are supervision and control, not of that of the
Page 47 of 158

The classic example of an illegal submission that did not impair the validity Constitution be submitted to conventions in the several In the 1946 case of Wheeler vs. Board of Trustees (37 SE 2nd 322, 326-330),
of the ratification or adoption of a new Constitution is the case of the states especially elected to pass upon it and that, which enunciated the principle that the validity of a new or revised
Federal Constitution of the United States. It should be recalled that the furthermore, the new government should go into effect Constitution does not depend on the method of its submission or
thirteen (13) original states of the American Union — which succeeded in if and when it should be ratified by nine of the thirteen ratification by the people, but on the fact or fiat or approval or adoption or
liberating themselves from England after the revolution which began on states ... . (The Federalist, Modern Library Ed., 1937, acquiescence by the people which fact of ratification or adoption or
April 19, 1775 with the skirmish at Lexington, Massachusetts and ended Introduction by Edward Earle Mead, pp. viii-ix; acquiescence is all that is essential, the Court cited precisely the case of the
with the surrender of General Cornwallis at Yorktown, Virginia, on October emphasis supplied) irregular revision and ratification by state conventions of the Federal
19, 1781(Encyclopedia Brit., Vol. I, 1933 Ed., p. 776) — adopted their Constitution, thus:
Articles of Confederation and Perpetual Union, that was written from 1776 Historian Samuel Eliot Morison similarly recounted:
to 1777 and ratified on March 1, 1781 (Encyclopedia Brit., Vol. II, 1966 Ed., No case identical in its facts with the case now under
p. 525). About six thereafter, the Congress of the Confederation passed a consideration has been called to our attention, and we
The Convention, anticipating that the influence of many
resolution on February 21, 1787 calling for a Federal Constitutional have found none. We think that the principle which we
state politicians would be Antifederalist, provided for
Convention "for the sole and express purpose of revising the articles of apply in the instant case was very clearly applied in the
ratification of the Constitution by popularly elected
confederation ... ." (Appendix I, Federalist, Modern Library ed., p. 577, creation of the constitution of the United States. The
conventions in each state. Suspecting that Rhode
emphasis supplied). convention created by a resolution of Congress had
Island, at least, would prove recalcitrant, it declared
that the Constitution would go into effect as soon as authority to do one thing, and one only, to wit, amend
The Convention convened at Philadelphia on May 14, 1787. Article XIII of nine states ratified. The convention method had the the articles of confederation. This they did not do, but
the Articles of Confederation and Perpetual Union stated specifically: further advantage that judges, ministers, and others submitted to the sovereign power, the people, a new
ineligible to state legislatures, could be elected to a constitution. In this manner was the constitution of the
The articles of this confederation shall be inviolably convention. The nine-state provision was, of course, United States submitted to the people and it became
observed in every state, and the union shall be mildly revolutionary. But the Congress of the operative as the organic law of this nation when it had
perpetual; nor shall any alterations at any time Confederation, still sitting in New York to carry on been properly adopted by the people.
hereafter be made in any of them; unless such federal government until relieved, formally submitted
alteration be agreed to in a congress of the united the new constitution to the states and politely faded Pomeroy's Constitutional Law, p. 55, discussing the
states, and be afterwards confirmed by the legislatures out before the first presidential inauguration. (The convention that formulated the constitution of the
of every state. (See the Federalist, Appendix II, Modern Oxford History of the Am. People, by Samuel Eliot United States, has this to say: "The convention
Library Ed., 1937, p. 584; emphasis supplied.) Morison, 1965 ed., p. 312). proceeded to do, and did accomplish, what they were
not authorized to do by a resolution of Congress that
But the foregoing requirements prescribed by the Articles of Confederation And so the American Constitution was ratified by nine (9) states on June called them together. That resolution plainly
and Perpetual Union for the alteration for the ratification of the Federal 21, 1788 and by the last four states on May 29, 1790 (12 C.J. p. 679 contemplated amendments to the articles of
Constitution as drafted by the Philadelphia Convention were not followed. footnote, 16 C.J.S., 27. — by the state conventions and not by all thirteen confederation, to be submitted to and passed by the
Fearful the said Federal Constitution would not be ratified by the (13) state legislatures as required by Article XIII of the Articles of Congress, and afterwards ratified by all the State
legislatures as prescribed, the Philadelphia Convention adopted a Confederation and Perpetual Union aforequoted — and in spite of the fact legislatures, in the manner pointed out by the existing
resolution requesting the Congress of the Confederation to pass a that the Federal Constitution as originally adopted suffers from two basic organic law. But the convention soon became convinced
resolution providing that the Constitution should be submitted to elected infirmities, namely, the absence of a bill of Rights and of a provision that any amendments were powerless to effect a cure;
state conventions and if ratified by the conventions in nine (9) states, not affirming the power of judicial review. that the disease was too deeply seated to be reached
necessarily in all thirteen (13) states, the said Constitution shall take effect. such tentative means. They saw that the system they
were called to improve must be totally abandoned, and
The liberties of the American people were guaranteed by subsequent
that the national idea must be re-established at the
Thus, history Professor Edward Earle Mead of Princeton University amendments to the Federal Constitution. The doctrine of judicial review
center of their political society. It was objected by some
recorded that: has become part of American constitutional law only by virtue of a judicial
members, that they had no power, no authority, to
pronouncement by Chief Justice Marshall in the case of Marbury vs.
construct a new government. They had no authority, if
It would have been a counsel of perfection to consign Madison (1803, 1 Cranch 137).
their decisions were to be final; and no authority
the new constitution to the tender mercies of the whatsoever, under the articles of confederation, to
legislatures of each and all of the 13 states. Experience Until this date, no challenge has been launched against the validity of the adopt the course they did. But they knew that their
clearly indicated that ratification then would have had ratification of the American Constitution, nor against the legitimacy of the labors were only to be suggestions; and that they as
the same chance as the scriptural camel passing government organized and functioning thereunder. well as any private individuals, and any private
through the eye of a needle. It was therefore individuals as well as they, had a right to propose a plan
determined to recommend to Congress that the new
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of government to the people for their adoption. They submitting it to a vote of the people. In Brittle v. People, Perpetual Union. The fallacy of the statement is so obvious that no further
were, in fact, a mere assemblage of private citizens, 2 Neb. 198, is a similar holding as to certain provisions refutation is needed.
and their work had no more binding sanction than a of the Nebraska Constitution of 1886, which were
constitution drafted by Mr. Hamilton in his office would added by the Legislature at the requirement of As heretofore stated, the issue as to the validity of Proclamation No. 1102
have had. The people, by their expressed will, Congress, though never submitted to the people for strikes at the validity and enforceability of the 1973 Constitution and of the
transformed this suggestion, this proposal, into an their approval." (97 NW 349-350; emphasis supplied). government established and operating thereunder. Petitioners pray for a
organic law, and the people might have done the same declaration that the 1973 Constitution is inoperative (L-36164). If
with a constitution submitted to them by a single Against the decision in the Wheeler case, supra, confirming the validity of Proclamation No. 1102 is nullified, then there is no valid ratification of the
citizen." the ratification and adoption of the American Constitution, in spite of the 1973 Constitution and the inevitable conclusion is that the government
fact that such ratification was in clear violation of the prescription on organized and functioning thereunder is not a legitimate government.
xxx xxx xxx alteration and ratification of the Articles of Confederation and Perpetual
Union, petitioners in G.R. No. L-36165 dismissed this most significant That the issue of the legitimacy of a government is likewise political and
... When the people adopt a completely revised or new historical fact by calling the Federal Constitution of the United States as a not justiciable, had long been decided as early as the 1849 case of Luther
constitution, the framing or submission of the revolutionary one, invoking the opinion expressed in Vol. 16, Corpus Juris vs. Borden (7 How. 1, 12 L.ed., 581), affirmed in the 1900 case of Taylor vs.
instrument is not what gives it binding force and effect. Secundum, p. 27, that it was a revolutionary constitution because it did not Beckham (178 U.S. 548, 44 L.ed. 1187) and re-enunciated in 1912 in the
The fiat of the people and only the fiat of the people, obey the requirement that the Articles of Confederation and Perpetual case of Pacific States Telephone and Telegraph Company vs. Oregon (223
can breathe life into a constitution. Union can be amended only with the consent of all thirteen (13) state U.S. 118, 133-151, 56 L.ed. 377-386). Because it reaffirmed the
legislatures. This opinion does not cite any decided case, but merely refers pronouncements in both Borden and Beckham cases, it is sufficient for us
to the footnotes on the brief historic account of the United States to quote the decision in Pacific States Telephone and Telegraph Co., supra,
xxx xxx xxx
Constitution on p. 679 of Vol. 12, CJS. Petitioners, on p. 18 of their main penned by Mr. Chief Justice White, who re-stated:
Notes, refer US to pp. 270-316 of the Oxford History of the American
... We do not hesitate to say that a court is never People, 1965 Ed. by Samuel Eliot Morison, who discusses the Articles of
justified in placing by implication a limitation upon the In view of the importance of the subject, the apparent
Confederation and Perpetual Union in Chapter XVIII captioned
sovereign. This would be an authorized exercise of misapprehension on one side and seeming
"Revolutionary Constitution Making, 1775 1781" (pp. 270-281). In Chapter
sovereign power by the court. In State v. Swift, 69 Ind. misconception on the other, suggested by the
XX on "The Creative Period in Politics, 1785-1788," Professor Morison
505, 519, the Indiana Supreme Court said: "The people argument as to the full significance of the previous
delineates the genesis of the Federal Constitution, but does not refer to it
of a State may form an original constitution, or doctrine, we do not content ourselves with a mere
even implicitly as revolutionary constitution (pp. 297-316). However, the
abrogate an old one and form a new one, at any time, citation of the cases, but state more at length than we
Federal Constitution may be considered revolutionary from the view point
without any political restriction except the constitution otherwise would the issues and the doctrine expounded
of McIver if the term revolution is understood in "its wider sense to
of the United States; ... ." (37 SE 327-328, 329, in the leading and absolutely controlling case — Luther
embrace decisive changes in the character of government, even though
emphasis supplied.) v. Borden, 7 How. 1, 12 L.ed. 581.
they do not involve the violent overthrow of an established order, ... ."
(R.M. MacIver, The Web of Government, 1965 ed., p. 203).
In the 1903 case of Weston vs. Ryan, the Court held: xxx xxx xxx
It is rather ridiculous to refer to the American Constitution as a
It remains to be said that if we felt at liberty to pass revolutionary constitution. The Articles of Confederation and Perpetual ... On this subject it was said (p. 38):
upon this question, and were compelled to hold that Union that was in force from July 12, 1776 to 1788, forged as it was during
the act of February 23, 1887, is unconstitutional and the war of independence was a revolutionary constitution of the thirteen "For if this court is authorized to enter upon this
void, it would not, in our opinion, by any means follow (13) states. In the existing Federal Constitution of the United States which inquiry, proposed by the plaintiff, and it should be
that the amendment is not a part of our state was adopted seven (7) or nine (9) years after the thirteen (13) states won decided that the character government had no legal
Constitution. In the recent case of Taylor vs. their independence and long after popular support for the government of existence during the period of time above mentioned,
Commonwealth (Va.) 44 S.E. 754, the Supreme Court of the Confederation had stabilized was not a product of a revolution. The — if it had been annulled by the adoption of the
Virginia hold that their state Constitution of 1902, Federal Constitution was a "creation of the brain and purpose of man" in opposing government, — then the laws passed by its
having been acknowledged and accepted by the officers an era of peace. It can only be considered revolutionary in the sense that it legislature during that time were nullities; its taxes
administering the state government, and by the people, is a radical departure from its predecessor, the Articles of Confederation wrongfully collected, its salaries and compensations to
and being in force without opposition, must be and Perpetual Union. its officers illegally paid ; its public accounts improperly
regarded as an existing Constitution irrespective of the settled and the judgments and sentences of its courts in
question as to whether or not the convention which It is equally absurd to affirm that the present Federal Constitution of the civil and criminal cases null and void, and the officers
promulgated it had authority so to do without United States is not the successor to the Articles of Confederation and
Page 49 of 158

who carried their decisions into operation answerable "But it is said that the 14th Amendment must be read The Constitution of 1902 was ordained and proclaimed
as trespassers, if not in some cases as criminals." with S 4 of article 4, of the Constitution, providing that by convention duly called by direct vote of the people
the United States shall guarantee to every state in this of the state to revise and amend the Constitution of
xxx xxx xxx Union a republican form of government, and shall 1869. The result of the work that the convention has
protect each of them against invasion; and on been recognized, accepted, and acted upon as the only
application of the legislature, or the Executive (when valid Constitution of the state by the Governor in
"The fourth section of the fourth article of the
the legislature cannot be convened), against domestic swearing fidelity to it and proclaiming it, as directed
Constitution of the United States shall guarantee to
violence." thereby; by the Legislature in its formal official act
every state in the Union a republican form of
adopting a joint resolution, July 15, 1902, recognizing
government, and shall protect each of them against
xxx xxx xxx the Constitution ordained by the convention which
invasion; and on the application of the Legislature or of
assembled in the city of Richmond on the 12th day of
the Executive (when the legislature cannot be
June 1901, as the Constitution of Virginia; by the
convened) against domestic violence. "It was long ago settled that the enforcement of this
individual oaths of members to support it, and by its
guaranty belonged to the political department. Luther
having been engaged for nearly a year in legislating
"Under this article of the Constitution it rests with v. Borden, 7 How. 1, 12 L.ed. 581. In that case it was
under it and putting its provisions into operation but
Congress to decide what government is established one held that the question, which of the two opposing
the judiciary in taking the oath prescribed thereby to
in a state. For, as the United State guarantee to each governments of Rhode Island, namely, the charter
support and by enforcing its provisions; and by the
state a republican government, Congress must government or the government established by a
people in their primary capacity by peacefully accepting
necessarily decide what government is established in voluntary convention, was the legitimate one, was a
it and acquiescing in it, registering as voters under it to
the state before it can determine whether it is question for the determination of the political
the extent of thousands through the state, and by
republican or not. And when the senators and department; and when that department had decided,
voting, under its provisions, at a general election for
representatives of a state are admitted into the the courts were bound to take notice of the decision
their representatives in the Congress of the United
Councils of the Union, the authority of the government and follow it."
States. (p. 755).
under which they were appointed, as well as its
republican character, is recognized by the proper xxx xxx xxx
The Court in the Taylor case above-mentioned further said:
constitutional authority. And its decision is binding on
every other department of the government, and could As the issues presented, in their very essence, are,
not be questioned in a judicial tribunal. It is true that While constitutional procedure for adoption or
and have long since by this Court been, definitely
the contest in this case did not last long enough to proposal to amend the constitution must be duly
determined to be political and governmental, and
bring the matter to this issue; and as no senators or followed, without omitting any requisite steps, courts
embraced within the scope of the scope of the powers
representatives were elected under the authority of should uphold amendment, unless satisfied that the
conferred upon Congress, and not, therefore within the
the government of which Mr. Dorr was the head, Constitution was violated in submitting the proposal.
reach of judicial power, it follows that the case
Congress was not called upon to decide the ... Substance more than form must be regarded in
presented is not within our jurisdiction, and the writ of
controversy. Yet the right to decide is placed there and considering whether the complete constitutional system
error must therefore be, and it is, dismissed for want of
not in the courts." for submitting the proposal to amend the constitution
jurisdiction. (223 U.S. pp. 142-151; emphasis supplied).
was observed.
xxx xxx xxx Even a constitutional amendment that is only promulgated by the
In the 1925 case of Taylor vs. King (130 A 407, 408 410), the Court stated:
Constitutional Convention without authority therefor and without
... We do not stop to cite other cases which indirectly or submitting the same to the people for ratification, becomes valid, when
incidentally refer to the subject, but conclude by recognized, accepted and acted upon the by Chief of State and other There may be technical error in the manner in which a
directing attention to the statement by the court, government functionaries, as well as by the people. In the 1903 case proposed amendment is adopted, or in its
speaking through Mr. Chief Justice Fuller, in Taylor vs. of Taylor vs. Commonwealth (44 SE 754-755), the Court ruled: advertisement, yet, if followed, unobjected to, by
Beckham, 178 U.S. 548, 44 L.ed. 1187, 20 Sup. Ct. Rep. approval of the electors, it becomes part of the
890, 1009, where, after disposing of a contention made Constitution. Legal complaints to the submission may
The sole ground urged in support of the contention
concerning the 14th Amendment, and coming to be made prior to taking the vote, but, if once
that Constitution proclaimed in 1902 is invalid is that it
consider a proposition which was necessary to be sanctioned, the amendment is embodied therein, and
was ordained and promulgated by the convention
decided concerning the nature and effect of the cannot be attacked, either directly or collaterally,
without being submitted for ratification or rejection by
guaranty of S 4 of article 4, it was said (p. 578): because of any mistake antecedent thereto. Even
the people of the commonwealth.
though it be submitted at an improper time, it is
Page 50 of 158

effective for all purposes when accepted by the Constitutional Convention from June 1, 1971 until martial law was been manifested. On the contrary, our permanent delegate to the United
majority. Armstrong v. King, 281 Pa. 207, 126 A. 263. proclaimed on Sept. 21, 1972, the salient reforms contained in the 1973 Nations Organization and our diplomatic representatives abroad appointed
(130 A 409). Constitution which have long been desired by the people, had been before martial law continue to remain in their posts and are performing
thoroughly discussed in the various committees of the Constitutional their functions as such under the 1973 Constitution.
Even if the act of the Constitutional Convention is beyond its authority, Convention, on the floor of the Convention itself, in civic forums and in all
such act becomes valid upon ratification or adoption or acquiescence by the media of information. Many of the decrees promulgated by the Chief Even the Commission on Elections is now implementing the provisions of
the people. Thus, in the 1905 case of Ex parte Birmingham and A.R. Executive from Sept. 22, 1972 to Jan. 17, 1973 implement some of the the 1973 Constitution by requiring all election registrars to register 18-year
Company (42 SO pp. 118 & 123), the Alabama Supreme Court upheld this reforms and had been ratified in Sec. 3(2) of Article XVII of the 1973 olds and above whether literates or not, who are qualified electors under
principle and stated that: "The authorities are almost uniform that this Constitution. the 1973 Constitution (see pars. 1-A(c), (d), & (e) of Annex A to Notes of
ratification of an unauthorized act by the people (and the people are the respondents Puyat and Roy in L-36165).
principal in this instance) renders the act valid and binding." 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 In brief, it cannot be said that the people are ignoring the 1973
It has likewise been held that it is not necessary that voters ratifying the implementing decrees promulgated by the President. Constitution and the government which is enforcing the same for over 10
new Constitution are registered in the book of voters; it is enough that they weeks now With the petitioners herein, secessionists, rebels and
are electors voting on the new Constitution. (Bott vs. Wurts, 40 A 740 Free election is not inevitably incompatible with martial law. We had free subversives as the only possible exceptions, the rest of the citizenry are
[1899]; 45 LRA 251, emphasis supplied). elections in 1951 and 1971 when the opposition won six out of eight complying with decrees, orders and circulars issued by the incumbent
senatorial seats despite the suspension of the privileges of the writ President implementing the 1973 Constitution.
In the 1956 case of Thomson vs. Peoples State Bank (75 NW 2nd 370, 375), of habeas corpus(see Lansang vs. Garcia, et al., Dec. 14, 1971, 42 SCRA
the Supreme Court of Wisconsin ruled that "irregularity in the procedure 448), which suspension implies constraint on individual freedom as the Of happy relevance on this point is the holding in Miller vs. Johnson 18 SW
for the submission of the proposed constitutional amendment will not proclamation of martial law. In both situations, there is no total blackout of 522:
defeat the ratification by the people." human rights and civil liberties.
If a set of men, not selected by the people according to
Again, in the 1958 case of Swaim vs. Tuscaloosa County (103 SO 2nd 769), All the local governments, dominated either by Nacionalistas or Liberals, as the forms of law, were to formulate an instrument and
the Alabama Supreme Court pronounced that "the irregularity in failing to well as officials of the Legislative and Executive branches of the declare it the constitution, it would undoubtedly be the
publish the proposed constitutional amendment once in each of the 4 government elected and/or appointed under the 1935 Constitution have duty of the courts declare its work a nullity. This would
calendar weeks next preceding the calendar week in which the election either recognized or are now functioning under the 1973 Constitution, be revolution, and this the courts of the existing
was held or once in each of the 7-day periods immediately preceding the aside from the fact of its ratification by the sovereign people through the government must resist until they are overturned by
day of the election as required by the Constitution, did not invalidate the Citizens Assemblies. Ninety-five (95) of a total of one hundred ten (110) power, and a new government established. The
amendment which was ratified by the people." members of the House of Representatives including the Speaker and the convention, however, was the offspring of law. The
Speaker Pro Tempore as well as about eleven (11) Congressmen who instrument which we are asked to declare invalid as a
belong to the Liberal Party and fifteen (15) of a total of twenty-four (24) constitution has been made and promulgated according
The same principle was reiterated in 1961 by the Mississippi Supreme Court
senators including Liberal senators Edgar U. Ilarde and John Osmeña opted to the forms of law. It is a matter of current history that
in Barnes, et al. v. Ladner (131) SO 2nd 45 462), where they admitted
to serve in the Interim Assembly, according to the certification of the both the executive and legislative branches of the
irregularities or illegalities committed in the procedure for submission of
Commission on Elections dated February 19, 1973 (Annex Rejoinder-3 to government have recognized its validity as a
the proposed constitutional amendment to the people for ratification
Consolidated Rejoinder of petitioners in L-36165). Only the five (5) constitution, and are now daily doing so. Is the
consisted of: "(a) the alleged failure of the county election commissioners
petitioners in L-36165 close their eyes to a fait accompli. All the other question, therefore, one of a judicial character? It is our
of the several counties to provide a sufficient number of ballot boxes
functionaries recognize the new government and are performing their undoubted duty, if a statute be unconstitutional to so
'secured by good and substantial locks,' as provided by Section 3249, Code
duties and exercising their powers under the 1973 Constitution, including declare it; also, if a provision of the state constitution
of 1942, Rec., to be used in the holding of the special election on the
the lower courts. The civil courts, military tribunals and quasi-judicial be in conflict with the federal constitution, to hold the
constitutional amendment, and (b) the alleged failure of the State Election
bodies created by presidential decrees have decided some criminal, civil former invalid. But this is a very different case. It may
Commissioners to comply with the requirements of Code Sections 3204
and administrative cases pursuant to such decrees. The foreign be said, however, that, for every violation of or non-
and 3205 in the appointment of election commissioners in each of the 82
ambassadors who were accredited to the Republic of the Philippines compliance with the law, there should be a remedy in
counties. The irregularities complained of, even if proved, were not such
before martial law continue to serve as such in our country; while two new the courts. This is not, however, always the case. For
irregularities would have invalidated the election." (Emphasis supplied; see
ambassadors have been accepted by the Philippines after the ratification of instance, the power of a court as to the acts of the
also Sylvester vs. Tindall, 8 SO 2nd 892; 154 Fla. 663).
the 1973 Constitution on January 17, 1973. Copies of the 1973 Constitution other departments of the government is not an
had been furnished the United Nations Organization and practically all the absolute one, but merely to determine whether they
Even prior to the election in November, 1970 of delegates of the other countries with which the Philippines has diplomatic relations. No have kept within constitutional limits, it is a duty rather
Constitutional Convention and during the deliberations of the adverse reaction from the United Nations or from the foreign states has than a power, The judiciary cannot compel a co-equal
Page 51 of 158

department to perform a duty. It is responsible to the constitution. This would be arrogating sovereignty to the judiciary and violative of the rights of the people, —
people; but if it does act, then, when the question is itself. Perhaps the members of the court might differ as who can and properly should remedy the matter, if not
properly presented, it is the duty of the court to say to what amendments are material, and the result to their liking, — if it were to declare the instrument of
whether it has conformed to the organic law. While the would be confusion and anarchy. One judge might say a portion invalid, and bring confusion and anarchy upon
judiciary should protect the rights of the people with that all the amendments, material and immaterial, the state. (emphasis supplied).
great care and jealousy, because this is its duty, and were void; another, that the convention had then the
also because, in times of great popular excitement, it is implied power to correct palpable errors, and then the If this Court inquires into the validity of Proclamation No. 1102 and
usually their last resort, yet it should at the same time court might differ as to what amendments are material. consequently of the adoption of the 1973 Constitution it would be
be careful to overstep the proper bounds of its power, If the instrument as ratified by the people could not be exercising a veto power on the act of the sovereign people, of whom this
as being perhaps equally dangerous; and especially corrected or altered at all, or if the court must Court is merely an agent, which to say the least, would be anomalous. This
where such momentous results might follow as would determine what changes were material, then the Court cannot dictate to our principal, the sovereign people, as to how the
be likely in this instance, if the power of the judiciary instrument, as passed upon by the people or as fixed by approval of the new Constitution should be manifested or expressed. The
permitted, and its duty required, the overthrow of the the court would be lacking a promulgation by the sovereign people have spoken and we must abide by their decision,
work of the convention. convention; and, if this be essential, then the question regardless of our notion as to what is the proper method of giving assent to
would arise, what constitution are we now living under, the new Charter. In this respect, WE cannot presume to know better than
After the American Revolution the state of Rhode and what is the organic law of the state? A suggestion the incumbent Chief Executive, who, unlike the members of this Court,
Island retained its colonial character as its constitution, of these matters shows what endless confusion and only last January 8, 1973, We affirmed in Osmeña vs. Marcos (Pres. Election
and no law existed providing for the making of a new harm to the state might and likely would arise. If, Contest No. 3, Jan. 8, 1973), was re-elected by the vote of over 5 million
one. In 1841 public meetings were held, resulting in the through error of opinion, the convention exceeded its electors in 1969 for another term of four years until noon of December 30,
election of a convention to form a new one, — to be power, and the people are dissatisfied, they have ample 1973 under the 1935 Constitution. This Court, not having a similar mandate
submitted to a popular vote. The convention framed remedy, without the judiciary being asked to overstep by direct fiat from the sovereign people, to execute the law and administer
one, submitted it to a vote, and declared it adopted. the proper limits of its power. The instrument provides the affairs of government, must restrain its enthusiasm to sally forth into
Elections were held for state officers, who proceeded for amendment and change. If a wrong has been done, the domain of political action expressly and exclusively reserved by the
to organize a new government. The charter it can, in the proper way in which it should be remedied, sovereign people themselves.
government did not acquiesce in these proceedings, is by the people acting as a body politic. It is not a
and finally declared the state under martial law. It question of whether merely an amendment to a
The people in Article XV of the 1935 Constitution did not intend to tie their
called another convention, which in 1843 formed a new constitution, made without calling a convention, has
hands to a specific procedure for popular ratification of their organic law.
constitution. Whether the charter government, or the been adopted, as required by that constitution. If it
That would be incompatible with their sovereign character of which We are
one established by the voluntary convention, was the provides how it is to be done, then, unless the manner
reminded by Section 1, of Article II of both the 1935 and the 1973
legitimate one, was uniformly held by the courts of the be followed, the judiciary, as the interpreter of that
state not to be a judicial, but a political question; and constitution, will declare the amendment
the political department having recognized the one, it 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 The opinion of Judge Thomas McIntire Cooley that the sovereign people
was held to be the duty of the judiciary to follow its
Pac. Rep. 835. But it is a case where a new constitution cannot violate the procedure for ratification which they themselves define
decision. The supreme court of the United States, in
has been formed and promulgated according to the in their Constitution, cannot apply to a unitary state like the Republic of the
Luther v. Borden, 7 How. 1, while not expressly deciding
forms of law. Great interests have already arisen under Philippines. His opinion expressed in 1868 may apply to a Federal State like
the principle, as it held the federal court, yet in the
it; important rights exist by virtue of it; persons have the United States, in order to secure and preserve the existence of the
argument approves it, and in substance says that where
been convicted of the highest crime known to the law, Federal Republic of the United States against any radical innovation
the political department has decided such a matter the
according to its provisions; the political power of the initiated by the citizens of the fifty (50) different states of the American
judiciary should abide by it.
government has in many ways recognized it; and, under Union, which states may be jealous of the powers of the Federal
such circumstances, it is our duty to treat and regard it government presently granted by the American Constitution. This
Let us illustrate the difficulty of a court deciding the dangerous possibility does not obtain in the case of our Republic.
as a valid constitution, and now the organic law of our
question: Suppose this court were to hold that the
convention, when it reassembled, had no power to
Then again, Judge Cooley advanced the aforesaid opinion in 1868 when he
make any material amendment, and that such as were
We need not consider the validity of the amendments wrote his opus "Constitutional Limitations." * (Vol. 6, Encyclopedia Brit.,
made are void by reason of the people having
made after the convention reassembled. If the making 1969 ed. pp. 445 446). It is possible that, were he live today, in a milieu
theretofore approved the instrument. Then, next, this
of them was in excess of its powers, yet, as the entire vastly different from 1868 to 1898, he might have altered his views on the
court must determine what amendments were
instrument has been recognized as valid in the manner matter.
material; and we find the court, in effect, making a
suggested, it would be equally an abuse of power by
Page 52 of 158

Even if conclusiveness is to be denied to the truth of the declaration by the State than the rest of the citizenry. In the ultimate analysis, the inclusion of The presumption of regularity in the performance of official functions is
President in Proclamation No. 1102 that the people through their Citizens' those from 15 years up to below 21 years old, the ex-convicts and the accorded by the law and jurisprudence to acts of public officers whose
Assemblies had overwhelmingly approved the new Constitution due regard ignorant, is more democratic as it broadens the base of democracy and category in the official hierarchy is very much lower than that of the Chief
to a separate, coordinate and co-equal branch of the government demands therefore more faithful to the express affirmation in Section 1 of Article II of State. What reason is there to withhold such a presumption in favor of
adherence to the presumption of correctness of the President's of the Declaration of Principles that "sovereignty resides in the people and the President? Does the fact that the President belong to the party in
declaration. Such presumption is accorded under the law and all government authority emanates from them." power and that four (4) of the five (5) senators who are petitioners in L-
jurisprudence to officials in the lower levels of the Executive branch, there 36165 belong to the opposition party, justify a discrimination against the
is no over-riding reason to deny the same to the Chief of State as head of Moreover, ex-convicts granted absolute pardon are qualified to vote. Not President in matters of this nature? Unsupported as their word is by any
the Executive Branch. WE cannot reverse the rule on presumptions, all ex-convicts are banned from voting. Only those who had been credible and competent evidence under the rules of evidence, must the
without being presumptuous, in the face of the certifications by the Office sentenced to at least one year imprisonment are disenfranchised but they word of the petitioners prevail over that of the Chief Executive, because
the Secretary of the Department of Local Government and Community recover their right of suffrage upon expiration of ten years after service of they happen to be former senators and delegates to the Constitutional
Development. (Annexes 1, to 1-E, Annexes 2 to 2-O to the compliance with sentence (Sec. 102, 1971 Rev. Elec. Code). Furthermore, ex-convicts and Convention? More than any of the petitioners herein in all these cases, the
manifestation filed by the Solicitor General on behalf of the respondents imbeciles constitute a very negligible number in any locality or barrio, incumbent President realizes that he risks the wrath of his people being
public officers dated March 7, 1973). There is nothing in the records that including the localities of petitioners. visited upon him and the adverse or hostile verdict of history; because of
contradicts, much less overthrow the results of the referendum as the restrictions on the civil liberties of his people, inevitable concomitants
certified. Much less are We justified in reversing the burden of proof — by of martial law, which necessarily entail some degree of sacrifice on the part
Included likewise in the delegated authority of the President, is the
shifting it from the petitioners to the respondents. Under the rules on of the citizenry. Until the contrary is established or demonstrated, herein
prerogative to proclaim the results of the plebiscite or the voting the
pleadings, the petitioners have the duty to demonstrate by clear and petitioners should grant that the Chief Executive is motivated by what is
Citizens' Assemblies. Petitioners deny the accuracy or correctness of
convincing evidence their claim that the people did not ratify through the good for the security and stability of the country, for the progress and
Proclamation No. 1102 that the 1973 Constitution was ratified by the
Citizens' Assemblies nor adopt by acquiescence the 1973 Constitution. And happiness of the people. All the petitioners herein cannot stand on the
overwhelming vote of close to 15 million citizens because there was no
have failed to do so. proposition that the rights under the 1935 Constitution are absolute and
official certification to the results of the same from the Department of
invulnerable to limitations that may be needed for the purpose of bringing
Local Governments. But there was such certification as per Annex 1 to 1-A
No member of this Tribunal is justified in resolving the issues posed by the about the reforms for which the petitioners pretend to be clamoring for
to the Notes submitted by the Solicitor General counsel for respondents
cases at bar on the basis of reports relayed to him from private sources and in behalf of the people. The five (5) petitioners in L-36165 and four (4)
public officers. This should suffice to dispose of this point. Even in the
which could be biased and hearsay, aside from the fact that such reports of the seven (7) petitioners in L-36164 were all participants in the political
absence of such certification, in much the same way that in passing law,
are not contained in the record. Proclamation No. 1102 is not just an drama of this country since 1946. They are witness to the frustrations of
Congress or the legislative body is presumed to be in possession of the
ordinary act of the Chief Executive. It is a well-nigh solemn declaration well-meaning Presidents who wanted to effect the reforms, especially for
facts upon which such laws are predicated (Justice Fernando, The Power of
which announces the highest act of the sovereign people — the benefit of the landless and the laboring class — how politics and
Judicial Review, 1967 Ed., pp. 112-11 citing Lorenzo vs. Dir., etc., [1927] 50
their imprimatur to the basic Charter that shall govern their lives hereafter political bargaining had stymied the effectuation of such reforms thru
Phil. 595 and O'Gonmore, et al: vs. Hartford, etc., [1931] 282 U.S. 251), it
— may be for decades, if not for generations. legislation. The eight (8) petitioners in L-36164 and L-36165 may not have
should likewise be presumed that the President was in possession of the
participated in the systematic blocking of the desired reforms in Congress
fact upon which Proclamation No. 1102 was based. This presumption is
or outside of it; but the question may be asked as to what exactly they did
Petitioners decry that even 15-year olds, ex convicts and illiterates were further strengthened by the fact that the Department of Local
to support such reforms. For the last seven (7) decades since the turn of
allowed to vote in the Citizens' Assemblies, despite their admission that the Governments, the Department National Defense and the Philippine
the century, for the last thirty-five (35) years since the establishment of the
term "Filipino people" in the preamble as well as "people" in Sections 1 and Constabulary as well the Bureau of Posts are all under the President, which
Commonwealth government in 1935 and for the last twenty seven (27)
5 of Article II of the 1935 Constitution and in Section 1(3) of Article III of the offices as his alter ego, are presumptively acting for and in behalf of the
years since the inauguration of the Republic on July 4, 1946, no tangible
Bill of Rights includes all Filipino citizens of all ages, of both sexes, whether President and their acts are valid until disapproved or reprobated by the
substantial reform had been effected, funded and seriously implemented,
literate or illiterate, whether peaceful citizens, rebels, secessionists, President (Planas vs. Gil, 67 Phil. 62; Villen vs. Secretary of Interior, 67 Phil.
despite the violent uprisings in the thirties, and from 1946 to 1952, and the
convicts or ex-convicts. Without admitting that ex-convicts voted in the 451). To deny the truth or the proclamation of the President as to the
violent demonstrations of recent memory. Congress and the oligarchs
referendum, about which no proof was even offered, these sectors of our overwhelming majority vote in the Citizens' Assemblies in favor of the new
acted like ostriches, "burying their heads in timeless sand. "Now the hopes
citizenry, whom petitioners seem to regard with contempt or decision and Constitution, is to charge the President with falsification, which is a most
for the long-awaited reforms to be within a year or to are brighter. It would
whom petitioners would deny their sovereign right to pass upon the basic grievous accusation. Under the, rules of pleadings and evidence, the
seem therefore to the duty of everyone including herein petitioners to give
Charter that shall govern their lives and the lives of their progenies, are petitioners have the burden of proof by preponderance of evidence in civil
the present leadership the opportunity to institute and carry out the
entitled as much as the educated, the law abiding, and those who are 21 cases and by proof beyond reasonable doubt in criminal prosecutions,
needed reforms as provided for in the new or 1973 Constitution and thru
years of age or above to express their conformity or non conformity to the where the accused is always presumed to be innocent. Must this
the means prescribed in that same Constitution.
proposed Constitution, because their stake under the new Charter is not constitutional right be reversed simply because the petitioner all assert the
any less than the stake of the more fortunate among us. As a matter of contrary? Is the rule of law they pretend invoke only valid as long as it
fact, these citizens, whose juridical personality or capacity to act is limited favors them? As stated in Wheeler vs. Board of Trustees, "a court is never justified in
by age, civil interdiction or ignorance deserve more solicitude from the placing by implication a limitation upon the sovereign."
Page 53 of 158

This Court in the Gonzales and Tolentino cases transcended its proper to join the Democratic Party of Andrew Jackson, also a slave owner and credibility, if they proceeded first to hold a rump session outside the
sphere and encroached upon the province exclusively reserved to and by landed aristocrat, who later appointed him first as Attorney General of the legislative building; because it is not unreasonable to demand or to exact
the sovereign people. This Court did not heed to the principle that the United States, then Secretary of the Treasury and in 1836 Chief Justice of that he who exhorts others to be brave must first demonstrate his own
courts are not the fountain of all remedies for all wrongs. WE cannot the United States Supreme Court to succeed Chief Justice John Marshall, in courage. Surely, they will not affirm that the mere filing of their petition in
presume that we alone can speak with wisdom as against the judgment of which position he continued for 28 years until he died on October 21, 1864. L-36165 already made them "heroes and idealists." The challenge likewise
the people on the basic instrument which affects their very lives. WE His death "went largely unnoticed and unregretted." Because he himself seems to insinuate that the members of this Court who disagree with
cannot determine what is good for the people or ought to be their was a slave owner and a landed aristocrat, Chief Justice Taney sympathized petitioners' views are materialistic cowards or mercenary fence-sitters. The
fundamental law. WE can only exercise the power delegated to Us by the with the Southern States and, even while Chief Justice, hoped that the Court need not be reminded of its solemn duty and how to perform it. WE
sovereign people, to apply and interpret the Constitution and the laws for Southern States would be allowed to secede peacefully from the Union. refuse to believe that petitioners and their learned as well as illustrious
the benefit of the people, not against them nor to prejudice them. WE That he had no sympathy for the Negroes was revealed by his decision counsels, scholars and liberal thinkers that they are, do not recognize the
cannot perform an act inimical to the interest of Our principal, who at any in Dred Scott vs. Sandford (19 How. 398 [1857]) where he pronounced that sincerity of those who entertain opinions that clash with their own. Such an
time may directly exercise their sovereign power ratifying a new the American Negro is not entitled to the rights of an American citizen and attitude does not sit well with the dictum that "We can differ without being
Constitution in the manner convenient to them. that his status as a slave is determined by his returning to a slave state. difficult; we can disagree without being disagreeable," which distinguished
One can therefore discern his hostility towards President Lincoln when he counsel in L-36165 is wont to quote.
It is pertinent to ask whether the present Supreme Court can function decided Ex parte Merryman, which animosity to say the least does no befit
under the 1935 Constitution without being a part of the government a judicial mind. Such a man could hardly be spoken of as a hero of the WE reserve the right to prepare an extensive discussion of the other points
established pursuant thereto. Unlike in the Borden case, supra, where American Bar, least of all of the American nation. The choice of heroes raised by petitioners, which We do not find now necessary to deal with in
there was at least another government claiming to be the legitimate organ should not be expressed indiscriminately just to embellish one's rhetoric. view of Our opinion on the main issue.
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 Distinguished counsel in L-36165 appears to have committed another IN VIEW OF THE FOREGOING, ALL THE PETITIONS IN THESE FIVE
the cases at bar there is no other government distinct from and historical error, which may be due to his rhetorical in the Encyclopedia CASES SHOULD BE DISMISSED.
maintaining a position against the existing government headed by the Britannica (Vol. 9, 1969 ed., pp. 508-509) to this effect. On the contrary,
incumbent Chief Executive. (See Taylor vs. Commonwealth, supra). There is Encyclopedia Britannica (Vol. 17 Encyclopedia Brit., 1966 & 1969 eds., 732-
MAKASIAR, J., concurring:
not even a rebel government duly organized as such even only for domestic 733), refers to Marshal Henri Philippe Petain as the genuine hero or "Savior
purposes, let alone a rebel government engaged in international of Verdun"; because he held Verdun against the 1916 offensive of the
negotiations. As heretofore stated, both the executive branch and the German army at the cost of 350,000 of his French soldiers, who were then Pursuant to Our reservation, We now discuss the other issues raised by the
legislative branch established under the 1935 Constitution had been demoralized and plotting mutiny. Certainly, the surviving members of the petitioners.
supplanted by the government functioning under the 1973 Constitution as family of Marshal Petain would not relish the error. And neither would the
of January 17, 1973. The vice president elected under the 1935 members of the clan of Marshal Foch acknowledge the undeserved II
Constitution does not asset any claim to the leadership of the Republic of accolade, although Marshal Foch has a distinct place in history on his own
the Philippines. Can this Supreme Court legally exist without being part of merits. The foregoing clarification is offered in the interest of true EVEN IF ISSUE IS JUSTICIABLE, PEOPLE'S RATIFICATION, ADOPTION OR
any government? scholarship and historical accuracy, so that the historians, researchers and ACQUIESCENCE CREATES STRONG PRESUMPTION OF VALIDITY OF 1973
students may not be led astray or be confused by esteemed counsel's CONSTITUTION.
Brilliant counsel for petitioners in L-36165 has been quite extravagant in his eloquence and mastery of the spoken and written word as well as by his
appraisal of Chief Justice Roger Brooke Taney whom he calls the "hero of eminence as law professor, author of law books, political leader, and
member of the newly integrated Philippine Bar. As intimated in the aforecited cases, even the courts, which affirm the
the American Bar," because during the American civil war he apparently proposition that the question as to whether a constitutional amendment or
had the courage to nullify the proclamation of President Lincoln the revised or new Constitution has been validly submitted to the people
suspending the privileges of the writ of habeas corpus in Ex It is quite intriguing why the eminent counsel and co-petitioner in L-36164 for ratification in accordance with the procedure prescribed by the existing
parte Merryman (Federal Case No. 9487 [1861]). But who exactly was Chief did not address likewise his challenge to the five (5) senators who are Constitution, is a justiciable question, accord all presumption of validity to
Justice Roger Brooke Taney? The Editorial Board of Vol. 21 of the petitioners in L-36165 to also act as "heroes and idealists," to defy the the constitutional amendment or the revised or new Constitution after the
Encyclopedia Brit., 1966 ed. (pp. 778-779, 1969 ed., pp. 654-657), briefly President by holding sessions by themselves alone in a hotel or in their government officials or the people have adopted or ratified or acquiesced in
recounts that he was born in 1777 in Calvert County, Maryland, of parents houses if they can muster a quorum or by causing the arrest of other the new Constitution or amendment, although there was an illegal or
who were landed aristocrats as well as slave owners. Inheriting the senators to secure a quorum and thereafter remove respondents Puyat irregular or no submission at all to the people. (Collier vs. Gray, 4th Dec.
traditional conservatism of his parents who belonged to the landed and Roy (Avelino, et al. vs. Cuenco, et al. [1949] 83 Phil. 17), if they believe Dig. 935 [1934], Hammond vs. Clark, 71 SE 482-483; People vs. Sours, 31
aristocracy, Taney became a lawyer in 1799, practiced law and was later most vehemently in the justice and correctness of their position that the Colo. 369, 74 Pac. 167, 102 Am. St. Rep. 34; Thompson vs. Winneth, 78
appointed Attorney General of Maryland. He also was a member of the 1973 Constitution has not been validly ratified, adopted or acquiesced in by Neb. 379, 110 NW 1113, 10 L.R.A. [N.S.] 149; State vs. Laylin, 69 Ohio St.
Maryland state legislature for several terms. He was a leader of the the people since January 18, 1973 until the present. The proclaimed Rep. 1, 68 NE 574; Weston vs. Ryan, 70 Neb. 211, 97 NW 347; Combs vs.
Federalist Party, which disintegrated after the war of 1812, compelling him conviction of petitioners in L-36165 on this issue would have a ring of State, 81 Ga. 780, 8 SE 318; Woodward vs. State, 103 Ga. 496, 30 SE 522;
Page 54 of 158

Corre vs. Cooney, 70 Mont. 355, 225 P 1007, 1009). As late as 1971, the depends upon the incumbent President (under Sec. 3[1], Art. XVII, 1973 within the delegated authority reposed in him by the Constitutional
courts stressed that the constitutional amendment or the new Constitution Constitution). Under the foregoing circumstances, the members of Convention as aforesaid.
should not be condemned "unless our judgment its nullity is manifest Congress, who were elected under the 1935 Constitution, would not be
beyond reasonable doubt" (1971 case of Moore vs. Shanahan, 486 Pac. 2d disposed to call a plebiscite and appropriate funds therefor to enable the It should be noted that Resolution No. 29, which superseded Resolution
506, 207 Kan. 1, 645; and the 1956 case of Tipton vs. Smith, et al., supra). people to pass upon the 1973 Constitution, ratification of which means No. 5843, does not prescribe that the plebiscite must be conducted by the
their elimination from the political scene. They will not provide the means Commission on Elections in accordance with the provisions of the 1971
Mr. Justice Enrique M. Fernando, speaking for the Court, pronounced that for their own liquidation. Revised Election Code. If that were the intention of the Constitutional
the presumption of constitutionality must persist in the absence of factual Convention in making the delegation, it could have easily included the
foundation of record to overthrow such presumption (Ermita-Malate Hotel, Because the Constitutional Convention, by necessary implication as it is necessary phrase for the purpose, some such phrase like "to call a
etc. vs. City Mayor, L-24698, July 31, 1967, 20 SCRA 849). indispensable to its independence and effectiveness, possesses the power plebiscite to be supervised by the Commission on Elections in accordance
to call a plebiscite and to appropriate funds for the purpose, it inescapably with the provisions of the 1971 Revised Election Code (or with existing
III must have the power to delegate the same to the President, who, in laws)." That the Constitutional Convention omitted such phrase, can only
estimation of the Convention can better determine appropriate time for mean that it left to the President the determination of the manner by
such a referendum as well as the amount necessary to effect the same; for which the plebiscite should be conducted, who shall supervise the
which reason the Convention thru Resolution No. 29 approved on plebiscite, and who can participate in the plebiscite. The fact that said
November 22, 1972, which superseded Resolution No. 5843 adopted on Resolution No. 29 expressly states "that copies of this resolution as
November 16, 1972, proposed to the President "that a decree be issued approved in plenary session be transmitted to the President of the
The Constitutional Convention is co-ordinate and co-equal with, as well as calling a plebiscite for the ratification of the proposed new Constitution Philippines and the Commission on Elections for implementation," did not
independent of, the three grand departments of the Government, namely, such appropriate date as he shall determine and providing for the in effect designate the Commission on Elections as supervisor of the
the legislative, the executive and the judicial. As a fourth separate and necessary funds therefor, ...," after stating in "whereas" clauses that the plebiscite. The copies of said resolution that were transmitted to the
distinct branch, to emphasize its independence, the Convention cannot be 1971 Constitutional Convention expected to complete its work by the end Commission on Elections at best serve merely to notify the Commission on
dictated to by either of the other three departments as to the content as of November, 1972 that the urgency of instituting reforms rendered Elections about said resolution, but not to direct said body to supervise the
well as the form of the Charter that it proposes. It enjoys the same imperative the early approval of the new Constitution, and that the plebiscite. The calling as well as conduct of the plebiscite was left to the
immunity from interference or supervision by any of the aforesaid national and local leaders desire that there be continuity in the immediate discretion of the President, who, because he is in possession of all the facts
branches of the Government in its proceedings, including the printing of its transition from the old to the new Constitution. funnelled to him by his intelligence services, was in the superior position to
own journals (Tañada and Fernando, Constitution of the Philippines, 1952 decide when the plebiscite shall be held, how it shall be conducted and
ed., Vol. I, pp. 8 9; Malcolm and Laurel, Phil. Const. Law, p. 22; Frantz vs. who shall oversee it.
If Congress can legally delegate to the Chief Executive or his subaltern the
Autry, 91 Pac. 193). Implicit in that independence, for the purpose of
power to promulgate subordinate rules and regulations to implement the
maintaining the same unimpaired and in order that its work will not be
law, this authority to delegate implementing rules should not be denied to It should be noted that in approving said Resolution No. 29, the
frustrated, the Convention has the power to fix the date for the plebiscite
the Constitutional Convention, a co-equal body. Constitutional Convention itself recognized the validity of, or validated
and to provide funds therefor. To deny the Convention such prerogative,
Presidential Proclamation No. 1081 placing the entire country under
would leave it at the tender mercy of both legislative and executive
Apart from the delegation to the Chief Executive of the power to call a martial law by resolving to "propose to President Ferdinand E. Marcos that
branches of the Government. An unsympathetic Congress would not be
plebiscite and to appropriate funds therefor by the Constitutional a decree be issued calling a plebiscite ... ." The use of the term "decree" is
disposed to submit the proposed Constitution drafted by the Constitutional
Convention thru its Resolution No. 29, the organization of the Citizens' significant for the basic orders regulating the conduct of all inhabitants are
Convention to the people for ratification, much less appropriate the
Assemblies for consultation on national issues, is comprehended within the issued in that form and nomenclature by the President as the Commander
necessary funds therefor. That could have been the fate of the 1973
ordinance-making power of the President under Section 63 of the Revised in Chief and enforcer of martial law. Consequently, the issuance by the
Constitution, because the same abolished the Senate by creating a
Administrative Code, which expressly confers on the Chief Executive President of Presidential Decree No. 73 on December 1, 1972 setting the
unicameral National Assembly to be presided by a Prime Minister who
the power to promulgate administrative acts and commands touching on plebiscite on January 15, 1973 and appropriating funds therefor pursuant
wields both legislative and executive powers and is the actual Chief
the organization or mode of operation of the government or re-arranging to said Resolution No. 29, is a valid exercise of such delegated authority.
Executive, for the President contemplated in the new Constitution
exercises primarily ceremonial prerogatives. The new Constitution likewise or re-adjusting any district, division or part of the Philippines "or disposing
shortened abruptly the terms of the members of the present Congress of issues of general concern ... ." (Emphasis supplied). Hence, as Such delegation, unlike the delegation by Congress of the rule-making
(whose terms end on December 31, 1973, 1975 and 1977) which provides consultative bodies representing the localities including the barrios, their power to the Chief Executive or to any of his subalterns, does not need
that the new Constitution shall take effect immediately upon its ratification creation by the President thru Presidential Decree No. 86 of December 31, sufficient standards to circumscribe the exercise of the power delegated,
(Sec. 16, Article XVII, 1973 Constitution). The fact that Section 2 of the 1972, cannot be successfully challenged. and is beyond the competence of this Court to nullify. But even if adequate
same Article XVIII secures to the members of Congress membership in the criteria should be required, the same are contained in the "Whereas"
interim National Assembly as long as they opt to serve therein within thirty The employment by the President of these Citizens' Assemblies for clauses of the Constitutional Convention Resolution No. 29, thus:
(30) days after the ratification of the proposed Constitution, affords them consultation on the 1973 Constitution or on whether there was further
little comfort; because the convening of the interim National Assembly need of a plebiscite thereon, — both issues of national concern — is still
Page 55 of 158

WHEREAS, the 1971 Constitutional Convention is competence. (pp. 2-3, concurring opinion of J. Fernando particularly describing the place to be searched, and
expected to complete its work of drafting a proposed in L-35925, etc., emphasis supplied). the persons or things to be seized.
new Constitution for the Republic by the end of
November, 1972; IV Article XIV —

WHEREAS, in view of the urgency of instituting reforms, VAGUENESS OR AMBIGUITY DOES NOT INVALIDATE THE Sec. 15. Any provision of paragraph one, Section
the early approval of the New Constitution has become 1973 CONSTITUTION fourteen, Article Eight and of this Article
imperative; notwithstanding, the Prime Minister may enter into
(1) Petitions challenge the 1973 draft as vague and incomplete, and alluded international treaties or agreements as the national
WHEREAS, it is the desire of the national and local to their arguments during the hearings on December 18 and 19, 1972 on welfare and interest may require." (Without the
leaders that there be continuity in the immediate the Plebiscite Cases. But the inclusion of questionable or ambiguous consent of the National Assembly.)
political transition from the old to the New provisions does not affect the validity of the ratification or adoption of the
Constitution;" (Annex "1" of Answer, Res. No. 29, 1973 Constitution itself (Pope vs. Gray, 104 SO, 2d 841; 7th Dec. pp. 212- Article XVII —
Constitutional Convention). 219, 1956-1966).
Sec. 3(2) All proclamations, orders, decrees,
As Mr. Justice Fernando, with whom Messrs. Justices Barredo, Antonio and Alexander Hamilton, one of the leading founders and defenders of the instructions, and acts promulgated, issued, or done by
the writer concurred in the Plebiscite Cases, stated: American Constitution, answering the critics of the Federal Constitution, the incumbent President shall be part of the law of the
stated that: "I never expect to see a perfect work from imperfect man. The land, and shall remain valid, legal, binding and effective
... Once this work of drafting has been completed, it result of the deliberations of all collective bodies must necessarily be a even after lifting of martial law or the ratification of this
could itself direct the submission to the people for compound, as well of the errors and prejudices as of the good sense and Constitution, unless modified, revoked, or superseded
ratification as contemplated in Article XV of the wisdom, of the individuals of whom they are composed. The compacts by subsequent proclamations, orders, decrees,
Constitution. Here it did not do so. With Congress not which are to embrace thirteen distinct States in a common bond of amity instructions, or other acts of the incumbent President,
being in session, could the President, by the decree and union, must necessarily be a compromise of as many dissimilar or unless expressly and explicitly modified or repealed
under question, call for such a plebiscite? Under such interests and inclinations. How can perfection spring from such materials?" by the regular National Assembly.
circumstances, a negative answer certainly could result (The Federalist, Modern Library Ed., pp. xx-xxi).
in the work of the Convention being rendered nugatory. xxx xxx xxx
The view has been repeatedly expressed in many (2) The 1973 Constitution is likewise impugned on the ground that it
American state court decisions that to avoid such contains provisions which are ultra vires or beyond the power of the Sec. 12. All treaties, executive agreements, and
undesirable consequence the task of submission Constitutional Convention to propose. contracts entered into by the Government, or any
becomes ministerial, with the political branches devoid
subdivision, agency, or instrumentality thereof,
of any discretion as to the holding of an election for
This objection relates to the wisdom of changing the form of government including government-owned or controlled
that purpose. Nor is the appropriation by him of the
from Presidential to Parliamentary and including such provisions as Section corporations, are hereby recognized as legal, valid and
amount necessary to be considered as offensive to the
3 of Article IV, Section 15 of Article XIV and Sections 3(2) and 12 of Article binding. When the national interest so requires, the
Constitution. If it were done by him in his capacity as
XVII in the 1973 Constitution. incumbent President of the Philippines or the interim
President, such an objection would indeed have been
Prime Minister may review all contracts, concessions,
formidable, not to say insurmountable. If the
Article IV — permits, or other forms of privileges for the
appropriation were made in his capacity as agent of the
exploration, development, exploitation, or utilization of
Convention to assure that there be submission to the
natural resources entered into, granted, issued or
people, then such an argument loses force. The Sec. 3. The right of the people to be secure in their
acquired before the ratification of this Constitution.
Convention itself could have done so. It is persons, houses, papers, and effects against
understandable why it should be thus. If it were unreasonable searches and seizures of whatever nature
otherwise, then a legislative body, the appropriating and for any purpose shall not be violated, and no In the Plebiscite Cases (L-35925, L-35929, L-35940, L-35942, L-35948, L-
arm of the government, could conceivably make use of search warrant or warrant of arrest shall issue except 35953, L-35961, L-35965, & L-35979), Chief Justice Roberto Concepcion,
such authority to compel the Convention to submit to upon probable cause to be determined by the judge, or concurred in by Justices Fernando, Barredo, Antonio and the writer,
its wishes, on pain of being rendered financially such other responsible officer as may be authorized by overruled this objection, thus:
distraught. The President then, if performing his role as law, after examination under oath or affirmation of the
its agent, could be held as not devoid of such complainant and the witnesses may produce, and ... Regardless of the wisdom and
moral aspects of the contested
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provisions of the proposed limitation of the scope of their function and objective was not in their This position certainly imposes limitation on the sovereign people, who
Constitution, it is my considered minds." have the sole power of ratification, which imposition by the Court is never
view that the Convention was justified (Wheeler vs. Board of Trustees, supra).
legally deemed fit to propose — V
save perhaps what is or may be In effect, petitioners and their counsels are amending by a strained and
insistent with what is now known, tortured construction Article XV of the 1935 Constitution. This is a clear
particularly in international law, case of usurpation of sovereign power they do not possess — through
as Jus Cogens — not only because some kind of escamotage. This Court should not commit such a grave error
the Convention exercised sovereign in the guise of judicial interpretation.
powers delegated thereto by the Petitioners next claim that the 1971 Constitutional Convention adjourned
people — although insofar only as on November 30, 1972 without officially promulgating the said
Constitution in Filipino as required by Sections 3(1) of Article XV on General In all the cases where the court held that illegal or irregular submission,
the determination of the proposals
Provisions of the 1973 Constitution. This claim is without merit because due to absence of substantial compliance with the procedure prescribed by
to be made and formulated by said
their Annex "M" is the Filipino version of the 1973 Constitution, like the the Constitution and/or the law, nullifies the proposed amendment or the
body is concerned — but also,
English version, contains the certification by President Diosdado Macapagal new Constitution, the procedure prescribed by the state Constitution is so
because said proposals cannot be
of the Constitutional Convention, duly attested by its Secretary, that the detailed that it specifies that the submission should be at a general or
valid as part of our Fundamental
proposed Constitution, approved on second reading on the 27th day of special election, or at the election for members of the State legislature only
Law unless and until "approved by
November, 1972 and on third reading in the Convention's 291st plenary or of all state officials only or of local officials only, or of both state and
the majority of the votes cast at an
session on November 29, 1972 and accordingly signed on November 1972 local officials; fixes the date of the election or plebiscite limits the
election which" said proposals "are
by the delegates whose signatures are thereunder affixed. It should be submission to only electors or qualified electors; prescribes the publication
submitted to the people for their
recalled that Constitutional Convention President Diosdado Macapagal of the proposed amendment or a new Constitution for a specific period
ratification," as provided in Section
was, as President of the Republic 1962 to 1965, then the titular head of the prior to the election or plebiscite; and designates the officer to conduct the
1 of Article XV of the 1935
Liberal Party to which four (4) of the petitioners in L-36165 including their plebiscite, to canvass and to certify the results, including the form of the
Constitution. (Pp. 17-18, Decision in
counsel, former Senator Jovito Salonga, belong. Are they repudiating and ballot which should so state the substance of the proposed amendments to
L-35925, etc.).
disowning their former party leader and benefactor? enable the voter to vote on each amendment separately or authorizes
expressly the Constitutional Convention or the legislature to determine the
This Court likewise enunciated in Del Rosario vs. Comelec (L-32476, Oct. 20, procedure or certain details thereof. See the State Constitutions of
1970, 35 SCRA 367) that the Constitutional Convention has the authority to VI
Alabama [1901]; Arizona [1912]; Arkansas [1874]; Colorado [1976];
"entirely overhaul the present Constitution and propose an entirely new Connecticut [1818]; Florida [1887]; Georgia [1945]; Illinois [1970]; Indiana
Constitution based on an ideology foreign to the democratic system ...; ARTICLE XV OF 1935 CONSTITUTION DOES NOT [1851]; Iowa [1857]; Kansas [1861]; Kentucky [1891]; Louisiana [1921];
because the same will be submitted to the people for ratification. Once PRESCRIBE ANY PROCEDURE FOR RATIFICATION OF Maryland [1867]; Massachusetts [1790]; Michigan [1909]; Minnesota
ratified by the sovereign people, there can be no debate about the validity 1973 CONSTITUTION. [1857]; Mississippi [1890]; and Missouri [1945]).
of the new Constitution."
(1) Article XV of the 1935 Constitution simply provides that "such As typical examples:
Mr. Justice Fernando, concurring in the same Plebiscite Cases, cited the amendments shall be valid as part of this Constitution when approved by a Constitution of Alabama (1901):
foregoing pronouncement in the Del Rosario case, supra, and added: "... it majority of the votes cast at an election at which the amendments are
seems to me a sufficient answer that once convened, the area open for submitted to the people for ratification."
Article XVIII. Mode of Amending the Constitution
deliberation to a constitutional convention ..., is practically limitless" (citing
Cf. Koehler vs. Hill, 14 NW 738, 60 Iowa 543 [1883]; Hatch Stoneman, 6 P But petitioners construe the aforesaid provision to read: "Such
734, 66 Cal. 632 [1885]; MacMillan v. Blattner, 25 NW 245, 67 Iowa 287 Sec. 284. Legislative Proposals. Amendments may be
amendments shall be valid as part of this Constitution when approved by a
[1895]; State v. Powell, 27 SO 297, 77 Miss. 543 [1900]; Hammond v. Clark, proposed to this Constitution by the legislature in the
majority of the votes cast at an election called by Congress at which the
71 SE 479, 136 Ga. 313 [1911]; Hamilton v. Vaughan, 179 NW 533, 212 manner following: The proposed amendments shall be
amendments are submitted for ratification by the qualified electors defined
Mich. 31 [1920]; State v. Smith, 138 NE 881, 105 Ohio St. 570 [1922]; read in the house in which they originate on three
in Article V hereof, supervised by the Commission on Elections in
Looney vs. Leeper, 292 P 365, 145 Okl. 202 [1930]; School District vs. City of several days, and, if upon the third reading, three-fifths
accordance with the existing election law and after such amendments shall
Pontiac, 247 NW 474, 262 Mich. 338 [1933]). of all the members elected to that house shall vote in
have been published in all the newspapers of general circulation for at least
favor thereof, the proposed amendments shall be sent
four months prior to such election."
to the other house, in which they shall likewise be read
Mr. Justice Barredo, in his concurring opinion in said Plebiscite Cases,
on three several days, and if upon the third reading,
expressed the view "that when the people elected the delegates to the
three-fifths of all the members elected that house shall
Convention and when the delegates themselves were campaigning, such
vote in favor of the proposed amendments,
Page 57 of 158

the legislature shall order an election by the qualified receives the affirmative vote of a majority of all the submitted as to enable the electors to vote on each
electors of the state upon such proposed amendments, qualified electors who vote at such election. amendments separately; and not more than three
to be held either at the general election next succeeding propositions to amend shall be submitted at the same
the session of the legislature at which the amendments Constitution of Arkansas (1874): election.
are proposed or upon another day appointed by the
legislature, not less than three months after the final Constitution of Maryland (1867):
Article XIX. Miscellaneous Provisions.
adjournment of the session of the legislature at which
the amendments were proposed. Notice of such
Sec. 22. Constitutional amendments. Either branch of Article XIV. Amendments to the Constitution.
election, together with the proposed amendments,
shall be given by proclamation of the governor, which the General Assembly at a regular session thereof may
shall be published in every county in such manner as propose amendments to this Constitution, and, if the Sec. 1. Proposal in general assembly; publication;
the legislature shall direct, for at least eight successive same be agreed to by a majority of all the members, submission to voters; governor's proclamation. The
weeks next preceding the day appointed for such elected to each house, such proposed General Assembly may propose Amendments to this
election. On the day so appointed an election shall be amendments shall be entered on the journal with the Constitution; provided that each Amendment shall be
held for the vote of the qualified electors of the state yeas and nays, and published in at least one newspaper embraced in a separate bill, embodying the Article or
upon the proposed amendments. If such election be in each county, where a newspaper is published, for six Section, as the same will stand when amended and
held on the day of the general election, the officers of months immediately preceding the next general passed by three fifths of all the members elected to
such general election shall open a poll for the vote of election for Senators and Representatives, at which each of the two Houses, by yeas and nays, to be
the qualified electors upon the proposed amendments; time the same shall be submitted to the electors of the entered on the Journals with the proposed
if it be held on a day other than that of a general State for approval or rejection, and if a majority of the Amendment. The bill or bills proposing amendment or
election, officers for such election shall be appointed; electors voting at such election adopt such amendments shall be published by order of the
and the election shall be held in all things in accordance amendments, the same shall become a part of this Governor, in at least two newspapers, in each County,
with the law governing general elections. In all Constitution; but no more than three amendments shall where so many may be published, and where not more
elections upon such proposed amendments, the votes be proposed or submitted at the same time. They shall than one may be published, then in the newspaper, and
cast thereat shall be canvassed, tabulated, and returns be so submitted as to enable the electors to vote on in three newspapers published in the City of Baltimore,
thereof be made to the secretary of state, and counted, each amendment separately. once a week for four weeks immediately preceding the
in the same manner as in elections for representatives next ensuing general election, at which the proposed
to the legislature; and if it shall thereupon appear that Constitution of Kansas (1861): amendment or amendments shall be submitted, in a
a majority of the qualified electors who voted at such form to be prescribed by the General Assembly, to the
election upon the proposed amendments voted in qualified voters of the State for adoption or rejection.
Article XIV. Amendments.
favor of the same, such amendments shall be valid to The votes cast for and against said proposed
all intents and purposes as parts of this Constitution. amendment or amendments, severally, shall be
The result of such election shall be made known by Sec. 1. Proposal of amendments; publications; returned to the Governor, in the manner prescribed in
proclamation of the governor. Representation in the elections. Propositions for the amendment of this other cases, and if it shall appear to the Governor that
legislature shall be based upon population, and such constitution may be made by either branch of the a majority of the votes cast at said election on said
basis of representation shall not be changed by legislature; and if two thirds of all the members elected amendment or amendments, severally, were cast in
constitutional amendments. to each house shall concur therein, such proposed favor thereof, the Governor shall, by his proclamation,
amendments, together with the yeas and nays, shall be declare the said amendment or amendments having
entered on the journal; and the secretary of state shall received said majority of votes, to have been adopted
Sec. 285. Form of ballot for amendment. Upon the cause the same to be published in at least one by the people of Maryland as part of the Constitution
ballots used at all elections provided for in section 284 newspaper in each county of the state where a thereof, and henceforth said amendment or
of this Constitution, the substance or subject matter of newspaper is published, for three months preceding amendments shall be part of the said Constitution.
each proposed amendment shall be so printed that the the next election for representatives, at which time, the When two or more amendments shall be submitted in
nature thereof shall be clearly indicated. Following same shall be submitted to the electors, for their the manner aforesaid, to the voters of this State at the
each proposed amendment on the ballot shall be approval or rejection; and if a majority of the electors same election, they shall be so submitted as that each
printed the word "Yes" and immediately under that voting on said amendments, at said election, shall amendment shall be voted on separately.
shall be printed the word "No". The choice of the adopt the amendments, the same shall become a part
elector shall be indicated by a cross mark made by him of the constitution. When more than one amendment
or under his direction, opposite the word expressing his Constitution of Missouri (1945):
shall be submitted at the same time, they shall be so
desire, and no amendment shall be adopted unless it
Page 58 of 158

Article XII. Amending the Constitution. on June 18, 1940 as approved by the President of the United States on government authority emanates, can only refer also to Filipino citizens of
December 1940 (see Sumulong vs. Commission, 70 Phil. 703, 713, 715; all ages and of both sexes. But in Section 5 of the same Article II on social
Sec. 2(b). Submission of amendments proposed by Gonzales, Phil. Const. Law, 1966 ed., p. 13). So it cannot be said that the justice, the term "people" comprehends not only Filipino citizens but also
general assembly or by the initiative. All amendments original framers of the 1935 Constitution as ratified May 14, 1935 intended all aliens residing in the country of all ages and of both sexes. Likewise, that
proposed by the general assembly or by the initiative that a body known as the Commission on Elections should be the one to is the same connotation of the term "people" employed in Section 1(3) of
shall be submitted to the electors for their approval or supervise the plebiscite, because the Commission on Elections was not in Article III on the Bill of Rights concerning searches and seizures.
rejection by official ballot title as may be provided by existence then as was created only by Commonwealth Act No. 607
law, on a separate ballot without party designation, at approved on August 22, 1940 and amended by Commonwealth Act No. 657 When the 1935 Constitution wants to limit action or the exercise of a right
the next general election, or at a special election called approved on June 21, 1941 (see Tañada & Carreon, Political Law of the to the electorate, it does so expressly as the case of the election of
by the governor prior thereto, at which he may submit Philippines, Vol. I, 1961 ed., pp. 475-476; Sumulong vs. Commission, 170 senators and congressmen. Section 2 Article VI expressly provides that the
any of the amendments. No such proposed Phil. 703, 708-715; 73 Phil. 288, 290-300; Tañada & Fernando, Constitution senators "shall be chosen at large by the qualified electors of the
amendment shall contain more than one amended and of the Philippines, 1953 ed., Vol. I, p. 5, Vol. II, Philippines as may provided by law." Section 5 of the same Article VI
revised article of this constitution, or one new article pp. 11-19). specifically provides that congressmen shall "be elected by the qualified
which shall not contain more than one subject and electors." The only provision that seems to sustain the theory of petitioners
matters properly connected therewith. If possible, each Because before August, 1940 the Commission on Election was not yet in that the term "people" in Article XV should refer to the qualified electors as
proposed amendment shall be published once a week existence, the former Department of Interior (now Department of Local defined in Article V of the 1935 Constitution is the provision that the
for two consecutive weeks in two newspapers of Governments and Community Development) supervised the plebiscites on President and Vice-President shall be elected "by direct vote of the
different political faith in each county, the last the 1937 amendment on woman's suffrage, the 1939 amendment to the people." (Sec. 2 of Art. VII of the 1935 Constitution). But this alone cannot
publication to be not more than thirty nor less than Ordinance appended to the 1935 Constitution (Tydings-Kocialkowski Act of be conclusive as to such construction, because of explicit provisions of
fifteen days next preceding the election. If there be but the U.S. Congress) and the three 1940 amendments on the establishment Sections 2 and 5 of Article VI, which specifically prescribes that the
one newspaper in any county, publication of four of a bicameral Congress, the re-election of the President and the Vice- senators and congressmen shall be elected by the qualified electors.
consecutive weeks shall be made. If a majority of the President, and the creation of the Commission on Elections (ratified on
votes cast thereon is in favor of any amendment, the June 18, 1940). The supervision of said plebiscites by the then Department As aforesaid, most of the constitutions of the various states of the United
same shall take effect at the end of thirty days after the of Interior was not automatic, but by virtue of an express authorization in States, specifically delineate in detail procedure of ratification of
election. More than one amendment at the same Commonwealth Act Nos. 34, 49 and 517. amendments to or revision of said Constitutions and expressly require
election shall be so submitted as to enable the electors ratification by qualified electors, not by the generic term "people".
to vote on each amendment separately. If the National Assembly then intended that the Commission on Elections
should also supervise the plebiscite for ratification of constitutional The proposal submitted to the Ozamis Committee on the Amending
Article XV of the 1935 Constitution does not require a specific procedure, amendments or revision, it should have likewise proposed the Process of the 1934-35 Constitutional Convention satisfied that the
much less a detailed procedure for submission or ratification. As corresponding amendment to Article XV by providing therein that the amendment shall be submitted to qualified election for ratification. This
heretofore stated, it does not specify what kind of election at which the plebiscite on amendments shall be supervised by the Commission on proposal was not accepted indicating that the 1934-35 Constitutional
new Constitution shall be submitted; nor does it designate the Commission Elections. Convention did intend to limit the term "people" in Article XV of the 1935
on Elections to supervise the plebiscite. Neither does it limit the ratification Constitution to qualified electors only. As above demonstrated, the 1934-35
to the qualified electors as defined in Article V of the 1935 Constitution. 3) If the framers of the 1935 Constitution and the people in ratifying the Constitutional Convention limits the use of the term "qualified electors" to
Much less does it require the publication of the proposed Constitution for same on May 14, 1935 wanted that only the qualified voters under Article elections of public officials. It did not want to tie the hands of succeeding
any specific period before the plebiscite nor does it even insinuate that the V of the 1935 Constitution should participate in the referendum on any future constitutional conventions as to who should ratify the proposed
plebiscite should be supervised in accordance with the existing election amendment or revision thereof, they could have provided the same in amendment or revision.
law. 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 (4) It is not exactly correct to opine that Article XV of 1935 Constitution on
(2) As aforequoted, Article XV does not indicate the procedure for electors as defined in Article V hereof," or some such similar phrases. constitutional amendment contemplates the automatic applicability of
submission of the proposed Constitution to the people for ratification. It election laws to plebiscites on proposed constitutional amendments or
does not make any reference to the Commission on Elections as the body Then again, the term "people" in Article XV cannot be understood to revision.
that shall supervise the plebiscite. And Article XV could not make any exclusively refer to the qualified electors under Article V of the 1935
reference to the Commission on Elections because the original 1935 Constitution because the said term "people" as used in several provisions The very phraseology of the specific laws enacted by the National Assembly
Constitution as ratified on May 14, 1935 by the people did not contain of the 1935 Constitution, does not have a uniform meaning. Thus in the and later by Congress, indicates that there is need of a statute expressly
Article X on the Commission on Elections, which article was included preamble, the term "Filipino people" refer, to all Filipino citizens of all ages authorizing the application of the election laws to plebiscites of this nature.
therein pursuant to an amendment by that National Assembly proposed of both sexes. In Section 1 of Article II on the Declaration of Principles, the Thus, Com. Act No. 34 on the woman's suffrage amendment enacted on
only about five (5) years later — on April 11, 1940, ratified by the people term "people" in whom sovereignty resides and from whom all September 30, 1936, consists of 12 sections and, aside from providing that
Page 59 of 158

"there shall be held a plebiscite on Friday, April 30, 1937, on the question said amendments shall be published in three consecutive issues of the electors can vote in the plebiscite. As above-intimated, most of the
of woman's suffrage ... and that said amendment shall be published in the Official Gazette in English and Spanish at least 20 days prior to the election Constitutions of the various states of the United States provide for very
Official Gazette in English and Spanish for three consecutive issues at least and posted in every local government office building and polling place not detailed amending process and specify that only qualified electors can vote
fifteen (15) days prior to said election, ... and shall be posted in a later than May 18, 1940 (Sec. 2); that the election shall be conducted in at such plebiscite or election.
conspicuous place in its municipal and provincial office building and in its conformity with the Election Code insofar as the same may be applicable
polling place not later than April 22, 1937" (Sec. 12, Com. Act No. 34), (Sec. 3) that copies of the returns shall be forwarded to the Secretary of Congress itself, in enacting Republic Act No. 3590, otherwise known as the
specifies that the provisions of the Election Law regarding, the holding of National Assembly and the Secretary of Interior (Sec. 7); that the National Barrio Charter, which was approved on June 17, 1967 and superseded
a special election, insofar as said provisions are not in conflict with it, Assembly shall canvass the returns to certify the results at a special session Republic Act No. 2370, expanded the membership of the barrio assembly
should apply to the said plebiscite (Sec. 3, Com. Act No. 34)1; and, that the to be called by President (Sec. 8). to include citizens who are at least 18 years of age, whether literate or not,
votes cast according to the returns of the board of inspectors shall be provided they are also residents of the barrio for at least 6 months (Sec. 4,
counted by the National Assembly (Sec. 10, Com. Act No. 34). Republic Act No. 73 approved on October 21, 1946 calling for a plebiscite R.A. No. 3590).
on the parity amendment consists of 8 sections provides that the
The election laws then in force before 1938 were found in Sections 392- Amendment "shall be submitted to the people, for approval or Sec. 4. The barrio assembly. — The barrio assembly
483 of the Revised Administrative Code. disapproval, at a general election which shall be held on March 11, 1947, in shall consist of all persons who are residents of the
accordance with the provisions of this Act" (Sec. 1, R.A. No. 73); that the barrio for at least six months, eighteen years of age or
Sec. 1 of Com. Act No. 357, the previous Election Code enacted on August said amendment shall be published in English and Spanish in three over, citizens of the Republic of the Philippines and who
22, 1938, makes it expressly applicable to plebiscites. Yet the subsequent consecutive issues of the Official Gazette at least 20 days prior to the are duly registered in the list of barrio assembly
laws, namely, Com. Act Nos. 492 and 517 and Rep. Act No. 73 calling for election; that copies of the same shall be posted in a conspicuous place and members kept by the Barrio Secretary.
the plebiscite on the constitutional amendments in 1939, 1940 and 1946, in every polling place not later than February 11, 1947 (Section 2, R.A. No.
including the amendment creating the Commission on Elections, 73); that the provisions of Com. Act No. 357 (Election Code) and Com. Act
The barrio assembly shall meet at least once a year to
specifically provided that the provisions of the existing election law shall No. 657 creating the Commission on Elections, shall apply to the election
hear the annual report of the barrio council concerning
apply to such plebiscites insofar as they are not inconsistent with the insofar as they are not inconsistent with this Act (Sec. 3, R.A. No. 73); and
the activities and finances of the barrio.
aforesaid Com. Act Nos. 492 and 517, as well as Rep. Act No. 73. Thus — 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). It shall meet also at the case of the barrio council or
Commonwealth Act No. 492, enacted on September 19, 1939, calling for a upon written petition of at least One-Tenth of the
plebiscite on the proposed amendments to the Constitution adopted by members of the barrio assembly.
the National Assembly on September 15, 1939, consists of 8 sections and From the foregoing provisions, it is patent that Article XV of the 1935
provides that the proposed amendments to the Constitution adopted in Constitution does not contemplate nor envision the automatic application
of the election law; and even at that, not all the provisions of the election No meeting of the barrio assembly shall take place
Resolution No. 39 on September 15, 1939 "shall be submitted to the
law were made applicable because the various laws aforecited contain unless notice is given one week prior to the meeting
Filipino people for approval or disapproval at a general election to be held
several provisions which are inconsistent with the provisions of the Revised except in matters involving public safety or security in
throughout the Philippines on Tuesday, October 24, 1939"; that the
Election Code (Com. Act No. 357). Moreover, it should be noted that the which case notice within a reasonable time shall be
amendments to said Constitution proposed in "Res. No. 38, adopted on the
period for the publication of the copies of the proposed amendments was sufficient. The barrio captain, or in his absence, the
same date, shall be submitted at following election of local officials," (Sec.
about 10 days, 15 days or 20 days, and for posting at least 4 days, 8 days or councilman acting as barrio captain, or any assembly
1, Com. Act No. 492) that the said amendments shall be published in
30 days. member selected during the meeting, shall act as
English and Spanish in three consecutive issues of the Official Gazette at
presiding officer at all meetings of the barrio assembly.
least ten (10) days prior to the elections; that copies thereof shall be posted
The barrio secretary or in his absence, any member
not later than October 20, 1939 (Sec. 2, Com. Act 492); that the election Republic Acts Nos. 180 and 6388 likewise expressly provide that the
designated by the presiding officer to act as secretary
shall be conducted according to provisions of the Election Code insofar as Election Code shall apply to plebiscites (See. 2, R.A. No. 180, as amended,
shall discharge the duties of secretary of the barrio
the same may be applicable; that within thirty (30) days after the and Section 2, Rep. Act No. 6388).
election, Speaker of the National Assembly shall request the President to
call a special session of the Assembly for the purpose of canvassing the If the Election Code ipso facto applies to plebiscites under Article XV of the
returns and certify the results thereof (Sec. 6, Com. Act No. 492). For the purpose of conducting business and taking any
1935 Constitution, there would be no need for Congress to expressly
official action in the barrio assembly, it is necessary
provide therefor in the election laws enacted after the inauguration of the
that at least one-fifth of the members of the barrio
Commonwealth Act No. 517, consisting of 11 sections, was approved on Commonwealth government under the 1935 Constitution.
assembly be present to constitute a quorum. All actions
April 25, 1940 and provided, among others: that the plebiscite on the
shall require a majority vote of these present at the
constitutional amendments providing bicameral Congress, re-election of (5) Article XV of the 1935 Constitution does not specify who can vote and meeting there being a quorum.
the President and Vice-President, and the creation of a Commission on how they shall vote. Unlike the various State Constitutions of the American
Elections shall be held at a general election on June 18, 1940 (Sec. 1); that Union (with few exceptions), Article XV does not state that only qualified
Page 60 of 158

Sec. 5. Powers of the barrio assembly. — The powers of For taking action on any of the above enumerated Paragraph 2 of Section 6 likewise authorizes open voting as it provides that
the barrio assembly shall be as follows: measures, majority vote of all the barrio assembly "voting procedures may be made ... either in writing as in regular elections,
members registered in the list of barrio secretary is and/or declaration by the voters to the board of election tellers."
a. To recommend to the barrio necessary.
council the adoption of measures That said paragraph 2 of Section 6 provides that "all duly registered barrio
for the welfare of the barrio; xxx xxx xxx 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
b. To decide on the holding of a Sec 10. Qualifications of voters and candidates. — are 21 years of age and above and who possess all other qualifications of a
plebiscite as provided for in Section Every citizen of the Philippines, twenty-one years of voter under Section 10 of R.A. No. 3590, can vote on the plebiscites
6 of this Act; age or over, able to read and write, who has been a referred to in Section 6; because paragraph 3 of Section 6 does not
resident of the barrio during the six months expressly limit the voting to those with the qualifications under Section 10
immediately preceding the election, duly registered in as said Section 6 does not distinguish between those who are 21 or above
c. To act on budgetary and
the list of voters kept by the barrio secretary, who is on the one hand and those 18 or above but below 21 on the other, and
supplemental appropriations and
not otherwise disqualified, may vote or be a candidate whether literate or not, to constitute a quorum of the barrio assembly.
special tax ordinances submitted
for its approval by the barrio in the barrio elections.
council; and Consequently, on questions submitted for plebiscite, all the registered
The following persons shall not be qualified to vote: members of the barrio assembly can vote as long as they are 18 years of
age or above; and that only those who are 21 years of age or over and can
d. To hear the annual report council
read and write, can vote in the elections of barrio officials.
concerning the activities and a. Any person who has been
finances of the assembly. sentenced by final judgment to
suffer one year or more of Otherwise there was no sense in extending membership in the barrio
imprisonment, within two years assembly to those who are at least 18 years of age, whether literate or not.
Sec. 6. Plebiscite. — A plebiscite may be held in the
after service of his sentence; Republic Act No. 3590 could simply have restated Section 4 of Republic Act
barrio when authorized by a majority vote of the
No. 2370, the old Barrio Charter, which provided that only those who are
members present in the barrio assembly, there being a
21 and above can be members of the barrio assembly.
quorum, or when called by at least four members of b. Any person who has violated his
the barrio council; Provided, however, That no allegiance to the Republic of the
plebiscite shall be held until after thirty days from its Philippines; and Counsels Salonga and Tañada as well as all the petitioners in L-36165 and
approval by either body, and such plebiscite has been two of the petitioners in L-36164 participated in the enactment of Republic
given the widest publicity in the barrio, stating the Act No. 3590 and should have known the intendment of Congress in
c. Insane or feeble-minded persons.
date, time, and place thereof, the questions or issues to expanding the membership of the barrio assembly to include all those 18
be decided, action to be taken by the voters, and such years of age and above, whether literate or not.
All these barrio assembly members, who are at least 18 years of age,
other information relevant to the holding of the
although illiterate, may vote at the plebiscite on the recall of any member
plebiscite. If Congress in the exercise of its ordinary legislative power, not as a
of the barrio council or on a budgetary, supplemental appropriation, or
constituent assembly, can include 18-year olds as qualified electors for
special ordinances, a valid action on which requires "a majority vote of all
All duly registered barrio assembly members qualified barrio plebiscites, this prerogative can also be exercised by the Chief
of the barrio assembly members registered in the list of the barrio
to vote may vote in the plebiscite. Voting procedures Executive as delegate of the Constitutional Convention in regard to the
secretary" (par. 5, Sec. 6, R.A. No. 3590). Such plebiscite may be authorized
may be made either in writing as in regular election, plebiscite on the 1973 Constitution.
by a majority vote of the members present in the barrio assembly, there
and/or declaration by the voters to the board of being a quorum (par. 1, Sec. 6).
election tellers. The board of election tellers shall be As heretofore stated, the statement by the President in Presidential
the same board envisioned by section 8, paragraph 2 of Proclamation No. 1102 that the 1973 Constitution was overwhelmingly
However, in the case of election of barrio officials, only Filipino citizens,
this Act, in case of vacancies in this body, the barrio ratified by the people through the Citizens' Assemblies in a referendum
who are at least 21 years of age, able to read and write, residents of the
council may fill the same. conducted from January 10 to 15, 1973, should be accorded the
barrio during the 6 months immediately preceding the election and duly
presumption of correctness; because the same was based on the
registered in the list of voters kept by the barrio secretary, not otherwise
A plebiscite may be called to decide on the recall of any certification by the Secretary of the Department of Local Government and
disqualified, may vote (Sec. 10, R.A. No. 3590).
member of the barrio council. A plebiscite shall be Community Development who tabulated the results of the referendum all
called to approve any budgetary, supplemental over the country. The accuracy of such tabulation and certification by the
appropriations or special tax ordinances. said Department Secretary should likewise be presumed; because it was
Page 61 of 158

done in the regular performance of his official functions aside from the fact The alleged certification by Governor Lino Bocalan of Cavite, is not true; such chairman he was in charge of the compilation and tabulation of the
that the act of the Department Secretary, as an alter ego of the President, because in his duly acknowledged certification dated March 16, 1973, he results of the referendum among the Citizens' Assemblies in Quezon City
is presumptively the act of the President himself unless the latter states that since the declaration of martial law and up to the present time, based on the results submitted to the Secretariat by the different Citizens'
disapproves or reprobates the same (Villena vs. Secretary of Interior, 67 he has been under house arrest in his residence in Urdaneta Village, Assemblies; but many results of the referendum were submitted direct to
Phil. 451 ). The truth of the certification by the Department Secretary and Makati, Rizal; that he never participated in the conduct of the Citizens' the national agencies having to do with such activity and all of which he has
the Chief Executive on the results of the referendum, is further Assemblies on January 10 15, 1973 in the province of Cavite; that the no knowledge, participation and control (Annex 4 Rejoinder of the Sol.
strengthened by the affidavits and certifications of Governor Isidro acting chairman and coordinator of the Citizens' Assemblies at that time Gen.).
Rodriguez of Rizal, Mayor Norberto S. Amoranto of Quezon City and was Vice-Governor Dominador Camerino; and that he was shown a letter
Councilor Eduardo T. Parades of Quezon City. for his signature during the conduct of the Citizens' Assemblies, which he Governor Isidro Rodriguez of Rizal issued a certification dated March 16,
did not sign but which he referred to Vice-Governor Camerino (Annex 1- 1973 that he prepared a letter to the President dated January 15, 1973
The procedure for the ratification of the 1937 amendment on woman Rejoinder of the Sol. Gen. dated March 20, 1973). informing him of the results of the referendum in Rizal, in compliance with
suffrage, the 1939 amendment to the ordinance appended to the 1935 the instruction of the National Secretariat to submit such letter 2 or 3 days
Constitution, the 1940 amendments establishing the bicameral Congress, Mayor Pablo Cuneta likewise executed an affidavit dated March 16, 1973 from January 10 to show the trend of voting in the Citizens' Assemblies;
creating the Commission on Elections and providing for two consecutive stating that on January 15, 1973, he caused the preparation of a letter that the figures 614,157 and 292,530 mentioned in said letter were based
terms for the President, and the 1947 parity amendment, cannot be addressed to Secretary Jose Roño of the Department of Local Government on the certificates of results in his possession as of January 14, 1973, which
invoked; because those amendments were proposed by the National and Community Development showing the results of the referendum in results were made the basis of the computation of the percentage of
Assembly as expressly authorized by Article V of the 1935 Constitution Pasay City; that on the same day, there were still in any Citizens' voting trend in the province; that his letter was never intended to show the
respecting woman suffrage and as a constituent assembly in all the other Assemblies holding referendum in Pasay City, for which reason he did not final or complete result in the referendum in the province as said
amendments aforementioned and therefore as such, Congress had also the send the aforesaid letter pending submittal of the other results from the referendum was then still going on from January 14-17, 1973, for which
authority to prescribe the procedure for the submission of the proposed said Citizens' Assemblies; and that in the afternoon of January 15, 1973, he reason the said letter merely stated that it was only a "summary
amendments to the 1935 Constitution. indorsed the complete certificate of results on the referendum in Pasay result"; and that after January 15, 1973, he sent to the National Secretariat
City to the Office of the President (Annex 5-Rejoinder of Sol. Gen. dated all the certificates of results in 26 municipalities of Rizal for final tabulation
In the cases at bar, the 1973 Constitution was proposed by an independent March 20, 1973). (Annex 3-Rejoinder of the Sol. Gen.; emphasis supplied).
Constitutional Convention, which as heretofore discussed, has the equal
power to prescribe the modality for the submission of the 1973 Pablo F. Samonte, Assistant City Treasurer and Officer in Charge of Pasay Lydia M. Encarnacion, acting chief of the Records Section, Department of
Constitution to the people for ratification or delegate the same to the City also issued an affidavit dated March 15, 1973 stating that a certain Local Government and Community Development, issued a certificate dated
President of the Republic. Atty. Delia Sutton of the Salonga Law Office asked him for the results of the March 16, 1973 that she was shown xerox copies of unsigned letters
referendum; that he informed her that he had in his possession unsigned allegedly coming from Governor Lino Bocalan dated January 15, 1973 and
The certification of Governor Isidro Rodriguez of Rizal and Mayor Norberto copies of such results which may not be considered official as they had marked "Rejoinder Annex Cavite" addressed to the President of the
Amoranto could be utilized as the basis for the extrapolation of the then no knowledge whether the original thereof had been signed by the Philippines through the Secretary of the Department of Local Government
Citizens' Assemblies in all the other provinces, cities and municipalities in mayor; and that in spite of his advice that said unsigned copies were not and Community Development and another unsigned letter reportedly from
all the other provinces, cities and municipalities, and the affirmative votes official, she requested him if she could give her the unofficial copies Mayor Pablo Cuneta dated January 15, 1973 and marked "Rejoinder Annex
in the Citizens' Assemblies resulting from such extrapolation would still thereof, which he gave in good faith (Annex C-Rejoinder to the Sol. Gen.). Pasay City" addressed to the Secretary of the Department of Local
constitute a majority of the total votes cast in favor of the 1973 Government and Community Development; that both xerox copies of the
Constitution. There were 118,010 Yes votes as against 5,588 No votes in the Citizens' unsigned letters contain figures showing the results of the referendum of
Assemblies of Quezon city (Annex V to Petitioners' Notes in L-36165). The the Citizens' Assemblies in those areas; and that the said letters were not
fact that a certain Mrs. Remedio Gutierrez, wife of alleged barrio treasurer received by her office and that her records do not show any such
As claimed by petitioners in L-36165, against the certification of the
Faustino Gutierrez, of barrio South Triangle, Quezon City, states that "as far documents received by her office (Annex 2-Rejoinder of the Sol. Gen.).
Department of Local Government and Community Development that in
Rizal there were 1,126,000 Yes votes and 100,310 No votes, the as we know, there has been no Citizens' Assembly meeting in our Area,
certification of Governor Isidro Rodriguez of Rizal, shows only 614,157 Yes particularly in January of this year," does not necessarily mean that there Thus it would seem that petitioners in L-36165 have attempted to deceive
votes against 292,530 No votes. In Cavite province, there were 249,882 Yes was no such meeting in said barrio; for she may not have been notified this Court by representing said unsigned letters and/or certificates as duly
votes against 12,269 No votes as disclosed in Annex 1-A of respondents' thereof and as a result she was not able to attend said meeting. Much less signed and/or containing the complete returns of the voting in the Citizens'
Compliance (the certification by the Department of Local Government and can it be a basis for the claim that there was no meeting at all in the other Assemblies.
Community Development), while the alleged certification of Governor Lino barrios of Quezon City. The barrio captain or the secretary of the barrio
Bocalan of Cavite shows only 126,163 Yes votes and 5,577 No votes. If such assembly could have been a credible witness. The observation We made with respect to the discrepancy between the
a ratio is extended by way of extrapolation to the other provinces, cities number of Yes votes and No votes contained in the summary report of
and towns of the country, the result would still be an overwhelming vote in Councilor Eduardo T. Paredes, chairman of the Secretariat of Quezon City Governor Rodriguez of Rizal as well as those contained in the alleged
favor of the 1973 Constitution. Ratification and Coordinating Council, certified on March 12, 1973 that as report of Governor Lino Bocalan of Cavite who repudiated the same as not
Page 62 of 158

having been signed by him for he was then under house arrest, on the one been granted absolute pardon or were sentenced to less than one year participation rate will therefore be the ratio of the
hand, and the number of votes certified by the Department of Local imprisonment to qualify them to vote (Sec. 201, 1971 Rev. Election Code). latter figure to the former which gives 74.2%.
Government and Community Development, on the other, to the effect that At any rate, the ex-convicts constitute a negligible number, discounting
even assuming the correctness of the figures insisted on by counsel for which would not tilt the scale in favor of the negative votes. 3) 1 cannot also understand c-2 "Solution to Problem
petitioners in L-36165, if they were extrapolated and applied to the other 11." The "difference or implied number of 15-20 year
provinces and cities of the country, the Yes votes would still be Similarly, the fact that Mayor Marcial F. Samson of Caloocan City, who olds" of 5,039,906 would represent really not only all
overwhelmingly greater than the No votes, applies equally to the alleged belongs to the Liberal Party, stated in his letter dated March 13, 1973 that 15-year olds and over who participated at the Citizens'
discrepancy between the figures contained in the certification of the he does not "feel authorized by the proper authorities to confirm or deny Assembly but might not have been registered voters at
Secretary of the Department of Local Government and Community the data" concerning the number of participants, the Yes votes and No the time, assuming that all the 11,661,909 registered
Development and the figures furnished to counsel for petitioners in L- votes in the referendum on the new Constitution among the members of voted at Citizens' Assembly. Hence, the "estimate
36165 concerning the referendum in Camarines Sur, Bataan and Negros the Citizens' Assemblies in Caloocan City, does not necessarily give rise to percentage participation of 15-20 years olds" of 105.6%
Occidental. the inference that Mayor Samson of Caloocan City is being intimidated, does not seem to provide any meaningful information.
having been recently released from detention; because in the same letter
The fact that the referendum in the municipality of Pasacao, Camarines of Mayor Samson, he suggested to counsel for petitioners in L-36165 that To obtain the participation rate of "15-20 years old"
Sur, shows that there were more votes in favor of the plebiscite to be held he can secure "the true and legitimate results of the referendum" from the one must divide the number in this age group, which
later than those against, only serve to emphasize that there was freedom Office of the President (Annex Caloocan-B to Rejoinder of Petitioners in L- was estimated to be 4.721 million as of January 1, 1973
of voting among the members of the Citizens' Assemblies all over the 36165). Why did not learned and eminent counsel heed such suggestion? by the population of "15 years old and over" for the
country during the referendum from January 10 to 15, 1973 (Annex-6 same period which was estimated to be 22.506 million,
Camarines Sur to Rejoinder of Petitioners in L-36165). If there was no such Counsel for petitioners in L-36165, to sustain their position, relies heavily giving 21.0%.
freedom of choice, those who wanted a plebiscite would not outnumber on the computation of the estimated turnover in the Citizens' Assemblies
those against holding such plebiscite. referendum on January 10 to 15, 1973 by a certain Professor Benjamin R. In Problem III, it should be observed that registered
Salonga, of the Mapua Institute of Technology, ostensibly a close relative of voters also include names of voters who are already
The letter of Governor Felix O. Alfelor, Sr. dated January 1973 confirms the former Senator Jovito R. Salonga, eminent counsel for petitioners in L- dead. It cannot therefore be assumed that all of them
"strong manifestation of approval of the new Constitution by almost 97% 36165 (Annex M-as amended, to Consolidated Rejoinder of petitioners in L- participated at the Citizens' Assembly. It can therefore
by the members of the Citizens' Assemblies in Camarines Sur" (Annex- 36165 to the Notes of Arguments and Memorandum of respondents). be inferred that "a total number of persons 15 and over
Camarines Sur to Rejoinder of Petitioners in L-36165). Professor Salonga is not a qualified statistician, which all the more impairs unqualified/disqualified to vote" will be more than
his credibility. Director Tito A. Mijares of the Bureau of Census and 10,548,197 and hence the "difference or implied
The report of Governor Efren B. Pascual of Bataan shows that the members Statistics, in his letter dated March 16, 1973 address to the Secretary of the number of registered voters that participated" will be
of the Citizens' Assemblies voted overwhelmingly in favor of the new Department of Local Government and Community Development, refutes less than 6,153,618.
Constitution despite the fact that the second set of questions including the the said computation of Professor Benjamin R. Salonga, thus:
question "Do you approve of the new Constitution?" was received only on I have reservations on whether an "appropriate
January 10. Provincial Governor Pascual stated that "orderly conduct and 1) I do not quite understand why (Problem 1) all number of qualified voters that supposedly voted"
favorable results of the referendum" were due not only to the coordinated qualified registered voters and the 15-20-year-old could be meaningfully estimated.
efforts and cooperation of all teachers and government employees in the youths (1972) will have to be estimated in order to give
area but also to the enthusiastic participation by the people, showing a 101.9% estimate of the percentage participation of
5) The last remark will therefore make the ratio (a)
"their preference and readiness to accept this new method of government the "15-20 year old plus total number of qualified
[Solution to Problem] more than 1.71 and that for (b),
to people consultation in shaping up government policies." (Annex-Bataan voters" which does not deem to answer the problem.
accordingly, will also be less than 36.8%." (Annex F
to Rejoinder of Petitioners in L-36165). This computation apparently fails to account for some
5.6 million persons "21 years old and over" who were
As heretofore stated, it is not necessary that voters ratifying the new not registered voters (COMELEC), but who might be
qualified to participate at the Citizen's Assembly. From the foregoing analysis of the Director of Census and Statistics as of
Constitution are registered in the book of voters; it is enough that they are
January 21, 1973, the official population projection for 15-year olds and
electors voting on the new Constitution (Bott vs. Wurts, 40 A 740 [1898];
over is 22,506,000. If 16,702,000 voted in the referendum, the
43 A 744, 881 [1899]; 45 LRA 251). The fact that the number of actual 2) The official population projection of this office
participation ratio would be 74.2% of 22,506,000.
voters in the referendum in certain localities may exceed the number of (medium assumption) for "15 year olds and over" as of
voters actually registered for the 1971 elections, can only mean that the January 1, 1973 is 22.506 million. If total number of
excess represents the qualified voters who are not yet registered including participants at the Citizens' Assembly Referendum held If the registered electors as of the election of November 8, 1971 numbered
those who are at least 15 years of age and the illiterates. Although ex- on January 10-15, 1973 was 16.702 million, 11,661,909, the difference between 16,702,000 who participated in the
convicts may have voted also in the referendum, some of them might have referendum and the registered electors of 11,661,909 for the November 8,
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1971 elections, is 5,040,091, which may include not only the 15-year olds such guarantee or prescription in said organic law. The Commission on 1971 to November 29, 1972, reforms were openly discussed and debated
and above but below 21 but also the qualified electors who were not Elections under the 1940 Amendment, embodied as Article X is merely except for a few days after the proclamation of martial law on September
registered before the November 8, 1971 elections as well as illiterates who mandated to insure "free, orderly and honest election." Congress, under its 21, 1972. From the time the Constitutional Convention reconvened in
are 15 years old and above but below 21. plenary law-making authority, could have validly prescribed in the election October, 1972 until January 7, 1973, the provisions of the new Constitution
law open voting in the election of public officers, without trenching upon were debated and discussed in forums sponsored by private organizations
Moreover, in the last Presidential election in November, 1969, We found the Constitution. Any objection to such a statute concerns its wisdom or universities and debated over the radio and on television. The Philippines is
that the incumbent President obtained over 5,000,000 votes as against propriety, not its legality or constitutionality. Secret balloting was a literate country, second only to Japan in the Far East, and more literate
about 3,000,000 votes for his rival LP Senator Sergio Osmeña, Jr., garnering demanded by partisan strife in elections for elective officials. Partisanship perhaps than many of mid-western and southern states of the American
a majority of from about 896,498 to 1,436,118 (Osmeña, Jr. vs. Marcos, based on party or personal loyalties does not generally obtain in a Union and Spain. Many residents in about 1,500 towns and 33,000 barrios
Presidential Election Contest No. 3, Jan. 8, 1973). plebiscite on proposed constitutional amendments or on a new of the country have radios. Even the illiterates listened to radio broadcasts
Constitution. We have seen even before and during martial law that voting on and discussed the provisions of the 1973 Constitution.
in meetings of government agencies or private organizations is usually
The petitioners in all the cases at bar cannot state with justification that
done openly. This is specially true in sessions of Congress, provincial As reported by the eminent and widely read columnist, Teodoro Valencia in
those who voted for the incumbent President in 1969 did not vote in favor
boards, city councils, municipal boards and barrio councils when voting on his column in Bulletin Today, March 4, 1973 issue, "Otto Lang, Hollywood
of the 1973 Constitution during the referendum from January 10 to 15,
national or local issues, not on personalities. producer director (Tora, Tora, Tora) went around the country doing a 30-
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 minute documentary on the Philippines for American television stated that
and relatives who are qualified to participate in the referendum because Then again, open voting was not a universal phenomenon in the Citizens' what impressed him most in his travel throughout the country was the
they are 15 years or above including illiterates, which fact should Assemblies. It might have been true in certain areas, but that does not general acceptance of the New Society by the people which he saw in his 6-
necessarily augment the number of votes who voted for the 1973 necessarily mean that it was done throughout the country. week travel from Aparri to Jolo."
The recent example of an open voting is the last election on March 3, 1973 The report of Frank Valeo (Bulletin Today, March 3 and 4, 1973 and Daily
(6) It is also urged that martial law being the rule of force, is necessarily of the National Press Club officers who were elected by acclamation Express, March 3, and Sunday Express, March 4), Secretary of the United
inconsistent with freedom of choice, because the people fear to disagree presided over by its former president, petitioner Eduardo Monteclaro in L- States Senate, who conducted a personal survey of the country as delegate
with the President and Commander-in-Chief of the Armed Forces of the 36236 (see Bulletin Today, p. 8, March 3, 1973 issue). There can be no of Senator Mike Mansfield, Chairman, Committee on US-Philippine
Philippines and therefore cannot voice views opposite to or critical of the more hardboiled group of persons than newspapermen, who cannot say relations, states:
position of the President on the 1973 Constitution and on the mode of its that voting among them by acclamation was characterized by fear among
ratification. the members of the National Press Club. Martial law has paved the way for a re-ordering of the
basic social structure of the Philippines. President
It is also claimed or urged that there can be no free choice during martial Moreover, petitioners would not be willing to affirm that all the members Marcos has been prompt and sure-footed in using the
law which inevitably generates fear in the individual. Even without martial of the citizenry of this country are against the new Constitution. They will power of presidential decree under martial law for this
law, the penal, civil or administrative sanction provided for the violation of not deny that there are those who favor the same, even among the purpose. He has zeroed in on areas which have been
ordinarily engenders fear in the individual which persuades the individual 400,000 teachers among whom officers of the Department of Education widely recognized as prime sources of the nation's
to comply with or obey the law. But before martial law was proclaimed, campaigned for the ratification of the new Constitution. difficulties — land tenancy, official corruption, tax
many individuals fear such sanctions of the law because of lack of effective evasion and abuse of oligarchic economic power.
equal enforcement or implementation thereof — in brief, Not one of the petitioners can say that the common man — farmer, Clearly, he knows the targets. What is not yet certain is
compartmentalized justice and extraneous pressures and influences laborer, fisherman, lowly employee, jeepney driver, taxi driver, bus driver, how accurate have been his shots. Nevertheless, there
frustrated the firm and just enforcement of the laws. The fear that is pedestrian, salesman, or salesgirl — does not want the new Constitution, is marked public support for his leadership and tangible
generated by martial law is merely the fear of immediate execution and or the reforms provided for therein. alternatives have not been forthcoming. That would
swift enforcement of the law and therefore immediate infliction of the suggest that he may not be striking too far from the
punishment or sanction prescribed by the law whenever it is transgressed mark.
(8) Petitioners likewise claim that there was no sufficient publicity given to
during the period of martial law. This is not the fear that affects the voters' the new Constitution. This is quite inaccurate; because even before the
freedom of choice or freedom to vote for or against the 1973 Constitution. election in November, 1970 of delegates to the Constitutional Convention, The United States business community in Manila seems
Those who cringe in fear are the criminals or the law violators. Surely, the proposed reforms were already discussed in various forums and to have been re-assured by recent developments ... .
petitioners do not come under such category. through the press as well as other media of information. Then after the (Emphasis supplied.)
Constitutional Convention convened in June, 1971, specific reforms
(7) Petitioners likewise claim that open voting by viva voce or raising of advanced by the delegates were discussed both in committee hearings as Petitioners cannot safely assume that all the peaceful citizens of the
hands violates the secrecy of the ballot as by the election laws. But the well as in the tri-media — the press, radio and television. Printed materials country, who constitute the majority of the population, do not like the
1935 Constitution does not require secret voting. We search in vain for on the proposed reforms were circulated by their proponents. From June, reforms stipulated in the new Constitution, as well as the decrees, orders
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and circulars issued to implement the same. It should be recalled, as incidents of war may remain subversives, martial law may restrict such judicial function until the danger
hereinbefore stated, that all these reforms were the subject of discussion pending which should be disposed to the security of the state and of the people shall have been decimated.
both in the committee hearings and on the floor of the Constitutional of as in time of war. "An important
Convention, as well as in public forums sponsored by concerned citizens or incident to a conduct of war is the The foregoing view appears to be shared by Rossiter when he stated:
civic organizations at which Con-Con delegates as well as other adoption measures by the military
knowledgeable personages expounded their views thereon and in all the command not only to repel and
Finally, this strong government, which in some
media of information before the proclamation of martial law on September defeat the enemies but to seize and
instances might become an outright dictatorship, can
21, 1972. This is the reason why the Constitutional Convention, after subject to disciplinary measures
have no other purposes than the preservation of the
spending close to P30 million during the period from June 1, 1971 to those enemies who in their attempt
independence of the state, the maintenance of the
November 29, 1972, found it expedient to accelerate their proceedings in to thwart or impede our military
existing constitutional order, and the defense of the
November, 1972 because all views that could possibly be said on the effort have violated the law of war."
political and social liberties of the people. It is
proposed provisions of the 1973 Constitution were already expressed and (Ex parte Quirin, 317 U.S., 1; 63 Sup.
important to recognize the true and limited ends of any
circulated. The 1973 Constitution may contain some unwise provisions. But Ct., 2.) Indeed, the power to create
practical application of the principle of constitutional
this objection to such unwise or vague provisions, as heretofore stated, a military commission for the trial
dictatorship. Perhaps the matter may be most clearly
refers to the wisdom of the aforesaid provisions, which issue is not for this and punishment of war criminals is
stated in this way: the government of a free state is
Court to decide; otherwise We will be substituting Our judgment for the an aspect of waging war. And, in
proceeding on its way and meeting the usual problems
judgment of the Constitutional Convention and in effect acting as a the language of a writer, a military
of peace and normal times within the limiting
constituent assembly. commission "has jurisdiction so
framework of its established constitutional order. The
long as the technical state of war
functions of government are parceled out among a
VI continues. This includes the period
number of mutually independent offices and
of an armistice, or military
institutions; the power to exercise those functions is
occupation, up to the effective date
PRESIDENT AS COMMANDER IN CHIEF EXERCISES circumscribed by well-established laws, customs, and
of treaty of peace, and may extend
LEGISLATIVE POWERS DURING MARTIAL LAW. constitutional prescriptions; and the people for whom
beyond, by treaty agreement."
this government was instituted are in possession of a
(Cowles, Trial of War Criminals by
The position of the respondent public officers that undermartial law, the lengthy catalogue of economic, political, and social
Military Tribunals, American Bar
President as Commander-in-Chief is vested with legislative powers, is rights which their leaders recognize as inherent and
Association Journal, June, 1944).
sustained by the ruling in the 1949 case of Kuroda vs. Jalandoni, et al. (83 inalienable. A severe crisis arises — the country is
Phil. 171, 177-178) which reiterates the 1945 case of Yamashita vs. invaded by a hostile power, or a dissident segment of
Consequently, the President as Commander-in-Chief is the citizenry revolts, or the impact of a world-wide
Styer (75 Phil. 563, 571-72). The trial of General Kuroda was after the
fully empowered to consummate this unfinished aspect depression threatens to bring the nation's economy in
surrender of Japan on October 2, 1945 (23 Encyc. Brit. 1969 ed., p. 799)
of war, namely the trial and punishment of war ruins. The government meets the crisis by assuming
and hence no more martial law in the Philippines.
criminals, through the issuance and enforcement of more powers and respecting fewer rights. The result is a
Executive Order No. 68. (83 Phil. 177-178; emphasis regime which can act arbitrarily and even dictatorially
... Consequently, in the promulgation and enforcement supplied). in the swift adaption of measures designed to save the
of Executive Order No. 68, the President of the
state and its people from the destructive effects of the
Philippines has acted in conformity with the generally
Chief Justice Stone of the United States Supreme Court likewise appears to particular crisis. And the narrow duty to be pursued by
accepted principles and policies of international law
subscribe to this view, when, in his concurring opinion in Duncan vs. this strong government, this constitutional
which are part of our Constitution.
Kahanamoku (327 U.S. 304 [1946]), he defined martial law as "the exercise dictatorship? Simply this and nothing more: to end the
of the power which resides in the executive branch of the government to crisis and restore normal times. The government
The promulgation of said executive order is an exercise preserve order and insure the public safety in times of emergency, when assumes no power and abridges no right unless plainly
by the President of his powers as Commander in Chief other branches of the government are unable to function, or their indispensable to that end; it extends no further in time
of all our armed forces, as upheld by this Court in the functioning would itself threaten the public safety." (Emphasis supplied). than the attainment of that end; and it makes no
case of Yamashita vs. Styver (L-129, 42 Off. Gaz., 664) There is an implied recognition in the aforesaid definition of martial law alteration in the political, social and economic structure
when we said — that even in places where the courts can function, such operation of the of the nation which cannot be eradicated with the
courts may be affected by martial law should their "functioning ... threaten restoration of normal times. In short, the aim of
"War is not ended simply because the public safety." It is possible that the courts, in asserting their authority constitutional dictatorship is the complete restoration
hostilities have ceased. After to pass upon questions which may adversely affect the conduct of the of the status quo ante bellum. This historical fact does
cessation of armed hostilities, punitive campaign against rebels, secessionists, dissidents as well as not comport with philosophical theory, that there never
Page 65 of 158

has been a perfect constitutional dictatorship, is an rights in order "to end the crisis and restore normal times." The Mr. Justice Holmes, the meaning of the words of the Constitution is not to
assertion that can be made without fear of government can assume additional powers indispensable to the be determined by merely opening a dictionary. Its terms must be
contradiction. But this is true of all institutions of attainment of that end — the complete restoration of peace. In our construed in the context of the realities in the life of a nation it is intended
government, and the principle of constitutional particular case, eradication of the causes that incited rebellion and to serve. Because experience may teach one generation to doubt the
dictatorship remains eternally valid no matter how subversion as secession, is the sine qua non to the complete restoration of validity and efficacy of the concepts embodied in the existing Constitution
often and seriously it may have been violated in normalcy. Exercise of legislative power by the President as Commander in and persuade another generation to abandon them entirely, heed should
practice. (Constitutional Dictatorship, 1948 ed., by Chief, upon his proclamation of martial law, is justified because, as he be paid to the wise counsel of some learned jurists that in the resolution of
Clinton L. Rossiter, p. 7; emphasis supplied.) professes, it is directed towards the institution of radical reforms essential constitutional questions — like those posed before Us — the blending of
to the elimination of the causes of rebellious, insurgent or subversive idealism and practical wisdom or progressive legal realism should be
Finally, Rossiter expressly recognizes that during martial law, the Chief conspiracies and the consequent dismantling of the rebellious, insurgent or applied (see Alexander M. Bickel, the Supreme Court and the Idea of
Executive exercises legislative power, whether of temporary or permanent subversive apparatus. Progress, 1970 ed., pp. 19-21). To Justice Frankfurter, law is "a vital agency
character, thus: for human betterment" and constitutional law "is applied politics using the
Hence, the issuance of Presidential Decree Nos. 86 and 86-A as well as word in its noble sense." (Frankfurter, Law and Politics, 1939 ed., pp. 3 & 6;
Proclamation No. 1102 is indispensable to the effectuation of the reforms emphasis supplied). Justice Brandeis gave utterance to the truth that "Our
The measures adopted in the prosecution of a
within the shortest possible time to hasten the restoration of normalcy. Constitution is not a straight jacket. It is a living organism. As such, it is
constitutional dictatorship should never be permanent
capable of growth — or expansion and adaptation to new conditions.
in character or effect. Emergency powers are strictly
Growth implies changes, political, economic and social." (Brandeis Papers,
conditioned by their purpose and this purpose is the "Must the government be too strong for the liberties of the people; or
Harvard Law School; emphasis supplied). Harvard Professor Thomas Reed
restoration of normal conditions. The actions directed must it be too weak to maintain its existence?" That was the dilemma that
Powell emphasizes "practical wisdom," for "the logic of constitutional law is
to this end should therefore be provisional. For vexed President Lincoln during the American Civil War, when without
the common sense of the Supreme Court." (Powell, the Validity of State
example, measures of a legislative nature which work a express authority in the Constitution and the laws of the United States, he
Legislation, under the Webb-Kenyon Law, 2 Southern Law Quarterly, pp.
lasting change in the structure of the state or constitute suspended one basic human freedom — the privilege of the writ of habeas
112, 138-139, cited in Bickel's Opus, supra; emphasis supplied).
permanent derogations from existing law should not be corpus — in order to preserve with permanence the American Union, the
adopted under an emergency enabling act, at least not Federal Constitution of the United States and all the civil liberties of the
without the positively registered approval of the American people. This is the same dilemma that presently confronts the The eternal paradox in this finite world of mortal and fallible men is that
legislature. Permanent laws, whether adopted in Chief Executive of the Republic of the Philippines, who, more than the nothing is permanent except change. Living organisms as well as man-
regular or irregular times, are for parliaments to enact. Courts and Congress, must, by express constitutional mandate, secure the made institutions are not immutable. Civilized men organize themselves
By this same token, the decisions and sentences of safety of our Republic and the rights as well as lives of the people against into a State only for the purpose of serving their supreme interest — their
extraordinary courts should be reviewed by the regular open rebellion, insidious subversion secession. The Chief Executive welfare. To achieve such end, they created an agency known as the
courts after the termination of the crisis. announced repeatedly that in choosing to proclaim martial law, the power government. From the savage era thru ancient times, the Middle Ages, the
expressly vested in him by the 1935 Constitution (Sec. 10[2], Art. VII, 1935 Dark Ages and the Renaissance to this era of sophisticated electronics and
Constitution) to insure our national and individual survival in peace and nuclear weaponry, states and governments have mutated in their search
But what if a radical act of permanent character, one
freedom, he is in effect waging a peaceful, democratic revolution from the for the magic instrument for their well-being. It was trial and error then as
working lasting changes in the political and social
center against the violent revolution and subversion being mounted by the it is still now. Political philosophies and constitutional concepts, forms and
fabric, is indispensable to the successful prosecution of
economic oligarchs of the extreme right, who resist reforms to maintain kinds of government, had been adopted, overturned, discarded, re-
the particular constitutional dictatorship? The only
their economic hegemony, and the communist rebels a Maoist oriented adopted or modified to suit the needs of a given society at a particular
answer can be: it must be resolutely taken and openly
secessionists of the extreme left who demand swift institution of reforms. given epoch. This is true of constitutions and laws because they are not
acknowledged. President Lincoln found it necessary to
In the exercise of his constitutional and statutory powers, to save the state "the infallible instruments of a manifest destiny." No matter how we want
proceed to the revolutionary step of emancipation in
and to protect the citizenry against actual and threatened assaults from the law to be stable, it cannot stand still. As Mr. Justice Holmes aptly
aid of his conservative purpose of preserving the Union;
insurgents, secessionists and subversives, doctrinaire concepts and observed, every "constitution is an experiment as all life is an experiment,"
as a constitutional dictator he had a moral right to take
principles, no matter how revered they may be by jurisprudence and time, (Abrahms vs. U.S., 250 US 616, 631) for "the life of the law is not logic, but
this radical action. Nevertheless, it is imperative that
should not be regarded as peremptory commands; otherwise the dead experience." In the pontifical tones of Mr. Justice Benjamin Nathan
any action with such lasting effects should eventually
hand of the past will regulate and control the security and happiness of the Cardozo, "so long as society is inconstant, there can be no constancy in
receive the positive approval of the people or of their
living present. A contrary view would be to deny the self-evident law," and "there will be change whether we will it or not." As Justice Jose P.
representatives in the legislature. (P. 303, emphasis
proposition that constitutions and laws are mere instruments for the well- Laurel was wont to say, "We cannot, Canute-like, command the waves of
being, peace, security and prosperity of the country and its citizenry. The progress to halt."
law as a means of social control is not static but dynamic. Paraphrasing Mr.
From the foregoing citations, under martial law occasioned by severe crisis
Justice Frankfurter, the Constitution is neither a printed finality nor the Thus, political scientists and jurists no longer exalt with vehemence a
generated by revolution, insurrection or economic depression or
imprisonment of the past, but the enfolding of the future. In the vein of "government that governs least." Adherents there are to the poetic dictum
dislocation, the government exercises more powers and respects fewer
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of Alexander Pope: "For forms of government let fools contest; whatever is martial law in 1941 by the governor of Hawaii throughout the Hawaiian absolute and certainly does not justify the invocation of the power of this
best administered is best." (Poems of Pope, 1931 Cambridge ed., p. 750). In territory. President Lincoln not only emancipated the Negro slaves in Court to compel action on the part of a co-equal body or its leadership.
between, the shades vary from direct democracy, representative America, but also saved the Federal Republic of the United States from This was emphasized with sufficient clarity by this Court in the 1949 case of
democracy, welfare states, socialist democracy, mitigated socialism, to disintegration by his suspension of the privilege of the writ of habeas Avelino vs. Cuenco (83 Phil. 17, 22,24), with which the distinguished
outright communism which degenerated in some countries into corpus, which power the American Constitution and Congress did not then counsels for the petitioners in L-36164 and L-36165 are familiar. We stress
totalitarianism or authoritarianism. expressly vest in him. No one can deny that the successful defense and that the doctrine of separation of powers and the political nature of the
preservation of the territorial integrity of the United States was due in part, controversy such as this, preclude the interposition of the Judiciary to
Hence, even the scholar, who advances academic opinions unrelated to if not to a great extent, to the proclamation of martial law over the nullify an act of a coordinate body or to command performance by the
factual situations in the seclusion of his ivory tower, must perforce submit territory of Hawaii — main bastion of the outer periphery or the outpost of head of such a co-ordinate body of his functions..
to the inexorable law of change in his views, concepts, methods and the American defense perimeter in the Pacific — which protected the
techniques when brought into the actual arena of conflict as a public United States mainland not only from actual invasion but also from aerial Mystifying is the posture taken by counsels for petitioners in referring to
functionary — face to face with the practical problems of state, or naval bombardment by the enemy. Parenthetically, the impartial the political question doctrine — almost in mockery — as a magic formula
government and public administration. And so it is that some learned observer cannot accurately conclude that the American Supreme Court which should be disregarded by this Court, forgetting that this magic
jurists, in the resolution of constitutional issues that immediately affect the acted with courage in its decision in the cases of Ex parte Milligan and formula constitutes an essential skein in the constitutional fabric of our
lives, liberties and fortunes of the citizens and the nation, recommend the Duncan vs. Kahanamoku (filed on May 10, 1865 argued on March 5 to 13, government, which, together with other basic constitutional precepts,
blending of idealism with practical wisdom which legal thinkers prefer to 1866, decided on April 3, 1866, and opinion delivered on December 17, conserves the unity of our people, strengthens the structure of the
identify as progressive legal realism. The national leader, who wields the 1866) after the lifting of the proclamation suspending the privilege of the government and assures the continued stability of the country against the
powers of government, must and has to innovate if he must govern writ of habeas corpus, long after the Civil War and the Second World ended forces of division, if not of anarchy.
effectively to serve the supreme interests of the people. This is especially respectively on April 9 or 26, 18-65 (Vol. 1, Encyclopedia Britannica, 1969
true in times of great crises where the need for a leader with vision, ed., pp. 730, 742) and on September 2, 1945 (Vol. 23, Encyclopedia
Moreover, if they have a quorum, the senators can meet anywhere.
imagination, capacity for decision and courageous action is greater, to Britannica, 1969 ed., p. 799). Was the delay on the part of the American
Validity of the acts of the Senate does not depend on the place of session;
preserve the unity of people, to promote their well-being, and to insure the Supreme Court in deciding these cases against the position of the United
for the Constitution does not designate the place of such a meeting.
safety and stability of the Republic. When the methods of rebellion and States President — in suspending the privilege of the writ of habeas
Section 9 of Article VI imposes upon Congress to convene in regular session
subversion have become covert, subtle and insidious, there should be a corpus in one case and approving the proclamation of martial law in the
every year on the 4th Monday of January, unless a different date is fixed by
recognition of the corresponding authority on the part of the Commander- other — deliberate as an act of judicial statesmanship and recognition on
law, or on special session called by the President. As former Senator Arturo
in-Chief of the Armed Forces to utilize all the available techniques to their part that an adverse court ruling during the period of such a grave
Tolentino, counsel for respondents Puyat and Roy in L-36165, stated, the
suppress the peril to the security of the government and the State. crisis might jeopardize the survival of the Federal Republic of the United
duty to convene is addressed to all members of Congress, not merely to its
States in its life-and-death struggle against an organized and well armed
presiding officers. The fact that the doors of Congress are padlocked, will
rebellion within its own borders and against a formidable enemy from
Over a century and a half ago, Thomas Jefferson, one of the founding not prevent the senators — especially the petitioners in L-36165 — if they
without its territorial confines during the last global armageddon?
fathers of the American Constitution and former President of the United are minded to do so, from meeting elsewhere — at the Sunken Gardens, at
States, who personifies the progressive liberal, spoke the truth when he the Luneta Independence Grandstand, in any of the big hotels or theaters,
said that some men "ascribe men of the preceding age a wisdom more VIII in their own houses, or at the Araneta Coliseum, which is owned by the
than human, and suppose what they did to be beyond amendment. ... But I father-in-law of petitioner Gerardo Roxas in L-36165.
know also, that laws and institutions must go hand in hand with the DOCTRINE OF SEPARATION OF POWERS PRECLUDES
progress of the human mind. As that becomes more developed, more MANDAMUS AGAINST SENATORS. However, a session by the Senate alone would be purely an exercise in
enlightened, as new discoveries are made, new truths disclosed and futility, for it cannot validly meet without the lower House (Sec. 10[5], Art.
manners and opinions change, with the change of circumstances, In G.R. No. L-36165, mandamus will not lie to compel respondents Gil VI, 1935 Constitution). Hence, this petition by five former senators
institutions must also advance, and keep pace with the times." (Vol. 12, Puyat and Jose Roy to convene the Senate of the Philippines even on the for mandamus in L-36165 is useless.
Encyclopedia Britanica, 1969 ed., p. 989). assumption that the 1935 Constitution still subsists; because pursuant to
the doctrine of separation of powers under the 1935 Constitution, the And as pointed out by former Senator Arturo Tolentino, counsel for
The wisdom of the decision of the Chief Executive can only be judged in the processes of this Court cannot legally reach a coordinate branch of the respondents Puyat and Roy, mandamus will lie only if there is a law
perspective of history. It cannot be adequately and fairly appraised within government or its head. This is a problem that is addressed to the Senate imposing on the respondents the duty to convene the body. The rule
the present ambience, charged as it is with so much tension and emotion, itself for resolution; for it is purely an internal problem of the Senate. If a imposing such a duty invoked by petitioners in L-36165 is purely an internal
if not partisan passion. The analytical, objective historians will write the majority of the senators can convene, they can elect a new Senate rule of the Senate; it is not a law because it is not enacted by both Houses
final verdict in the same way that they pronounced judgment on President President and a new Senate President Pro Tempore. But if they have no and approved by the President.
Abraham Lincoln who suspended the privilege of the writ of habeas quorum, those present can order the arrest of the absent members (Sec.
corpuswithout any constitutional or statutory authority therefor and of 10[2], Art. VI, 1935 Constitution). If this fails, then there is no remedy
President Franklin Delano Roosevelt who approved the proclamation of except an appeal to the people. The dictum ubi jus, ubi remedium, is not
Page 67 of 158

The Constitutional provision on the convening of Congress, is addressed to life, whether in the form of invasion from without or rebellion and govern within the framework of the Constitution and if at any time, before
the individual members of the legislative body (Sec. 9, Art. VI of 1935 subversion from within. This is the first law of nature and ranks second to normalcy is restored, the people thru their Citizens' Assemblies, cease to
Constitution). none in the hierarchy of all values, whether human or governmental. Every believe in his leadership, he will step down voluntarily from the Presidency.
citizen, who prides himself in being a member or a civilized society under But if, as apprehended by the petitioners, he abuses and brutalizes the
IX an established government, impliedly submits to certain constraints on his people, then to the battlements we must go to man the ramparts against
freedom for the general welfare and the preservation of the State itself, tyranny. This, it is believed, he knows only too well; because he is aware
even as he reserves to himself certain rights which constitute limitations on that he who rides the tiger will eventually end inside the tiger's stomach.
the powers of government. But when there is an inevitable clash between He who toys with revolution will be swallowed by that same revolution.
an exertion of governmental authority and the assertion of individual History is replete with examples of libertarians who turned tyrants and
freedom, the exercise of which freedom imperils the State and the civilized were burned at stake or beheaded or hanged or guillotined by the very
society to which the individual belongs, there can be no alternative but to people whom they at first championed and later deceived. The most
The petitioners in L-36164 and L-36236 specifically pray for a declaration submit to the superior right of the government to defend and preserve the bloody of such mass executions by the wrath of a wronged people, was the
that the alleged ratification of the 1973 Constitution is null and void and State. In the language of Mr. Justice Holmes — often invoked by herein decapitation by guillotine of about 15,000 Frenchmen including the leaders
that the said 1973 Constitution be declared unenforceable and inoperative. petitioners — "when it comes to a decision involving its (state life, the of the French revolution, like Robespierre, Danton, Desmoulins and Marat.
ordinary rights of individuals must yield to what he (the President) deems He is fully cognizant of the lessons of history.
As heretofore stated, Proclamation No. 1102 is an enactment of the the necessities of the moment. Public danger warrants the substitution of
President as Commander-in-Chief during martial law as directly delegated executive process for judicial process. (See Keely vs. Sanders, 99 U.S. 441, HENCE, THE DISMISSAL OF THESE FIVE CASES IS JUSTIFIED.
to him by Section 10(2) of Article VII of the 1935 Constitution. 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,
ESGUERRA, J., concurring:
A declaration that the 1973 Constitution is unenforceable and inoperative that the same is true of temporary detention to prevent apprehended
is practically deciding that the same is unconstitutional. The proposed harm." (Moyer vs. Peabody, 212 U.S. 77, 85, 53 L ed., 411, 417).
These petitions seek to stop and prohibit the respondents Executive
Constitution is an act of the Constitutional Convention, which is co-equal
Officers from implementing the Constitution signed on November 30,
and coordinate with as well as independent of either Congress or the Chief The rhetoric of freedom alone is not enough. It must be the rhetoric of
1972; in L-36165, to compel respondents Gil Puyat and Jose J. Roy,
Executive. Hence, its final act, the 1973 Constitution, must have the same freedom with order and security for all, that should be the shibboleth; for
President and President Pro-Tempore, respectively, of the Senate under
category at the very least as the act of Congress itself. freedom cannot be enjoyed in an environment of disorder and anarchy.
the 1935 Constitution, to convene the Senate in regular session which
should have started on January 22, 1973; to nullify Proclamation No. 1102
Consequently, the required vote to nullify Proclamation No. 1102 and the The incumbent Chief Executive who was trying to gain the support for his of the President, issued on January 17, 1973, which declared the
1973 Constitution should be eight (8) under Section 10 of Article VIII of the reform program long before September 21, 1972, realized almost too late ratification of the Constitution on November 30, 1972, by the Filipino
1935 Constitution in relation to Section 9 of the Judiciary Act or Republic that he was being deceived by his partymates as well as by the opposition, people, through the barangays or Citizens Assemblies established under
Act No. 296, as amended, or should be ten (10) under Section 2(2) of who promised him cooperation, which promises were either offered as a Presidential Decree No. 86 issued on December 31, 1972, which were
Article X of the 1973 Constitution. Should the required vote of eight (8) or bargaining leverage to secure concessions from him or to delay the empowered under Presidential Decree No. 86-A, issued on January 5, 1973,
ten (10), as the case may be, for the declaration of invalidity or institution of the needed reforms. The people have been victimized by such to act in connection with the ratification of said Constitution.
unconstitutionality be not achieved, the 1973 Constitution must be bargaining and dilly-dallying. To vert a terrifying blood bath and the
deemed to be valid, in force and operative. breakdown of the Republic, the incumbent President proclaimed martial
Grounds for the petitions are as follows:
law to save the Republic from being overrun by communists, secessionists
X and rebels by effecting the desired reforms in order to eradicate the evils
that plague our society, which evils have been employed by the 1. That the Constitutional Convention was not a free forum for the making
communists, the rebels and secessionists to exhort the citizenry to rise of a Constitution after the declaration of Martial Law on September 21,
ARTICLE OF FAITH against the government. By eliminating the evils, the enemies of the 1972.
Republic will be decimated. How many of the petitioners and their counsels
WE yield to no man as devotees of human rights and civil liberties. Like have been utilizing the rebels, secessionists and communists for their own 2. The Convention was not empowered to incorporate certain provisions in
Thomas Jefferson, We swear "eternal hostility towards any form of tyranny personal or political purposes and how many of them are being used in the 1972 Constitution because they are highly unwise and objectionable
over the mind of man" as well as towards bigotry and intolerance, which turn by the aforesaid enemies of the State for their own purposes? and the people were not sufficiently informed about them.
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 If the petitioners are sincere in their expression of concern for the greater 3. The President had no authority to create and empower the Citizens'
restrictions essential to the common weal. A civilized society cannot long mass of the populace, more than for their own selves, they should be Assemblies to ratify the new Constitution at the referendum conducted in
endure without peace and order, the maintenance of which is the primary willing to give the incumbent Chief Executive a chance to implement the connection therewith, as said assemblies were merely for consultative
function of the government. Neither can civilized society survive without desired reforms. The incumbent President assured the nation that he will purposes, and
the natural right to defend itself against all dangers that may destroy its
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4. The provisions of Article XV of the 1935 Constitution prescribing the dissenting opinions in the Plebiscite cases decided on January 22, 1973, functions according to the new Constitution and laws promulgated
manner of amending the same were not duly observed. and need not be repeated here. thereunder.

The petitions were not given due course immediately but were referred to Petitioners seek to set at naught Proclamation No. 1102 and Presidential If the real purpose of the petitions is to set aside the new Constitution,
the Solicitor General as counsel for the respondents for comment, with Decrees Nos. 86 and 86-A, claiming that the ratification of the new how can this Court justify its assumption of jurisdiction when no power has
three members of the Court, including the undersigned, voting to dismiss Constitution pursuant to the said decrees is invalid and of no effect. ... conferred upon it the jurisdiction to declare the Constitution or any part
them outright. The comments were considered motions to dismiss which Presidential Decree No. 86 organized the barangays or Citizens Assemblies thereof null and void? It is the height of absurdity and impudence for a
were set for hearing and extensively argued. Thereafter both parties composed of all citizens at least fifteen years of age, and through these court to wage open war against the organic act to which it owes its
submitted their notes and memoranda on their oral arguments. assemblies the proposed 1972 Constitution was submitted to the people existence. The situation in which this Court finds itself does not permit it to
for ratification. Proclamation No. 1102 of the President announced or pass upon the question whether or not the new Constitution has entered
I. declared the result of the referendum or plebiscite conducted through the into force and has superseded the 1935 Constitution. If it declares that the
Citizens Assemblies, and that 14,976,561 members thereof voted for the present Constitution has not been validly ratified, it has to uphold the 1935
ratification of the new Constitution and 743,869 voted against it. Constitution as still the prevailing organic law. The result would be too
The issues raised for determination, on which the resolution of the Motion
Petitioners assail these two acts of the President as unauthorized and anomalous to describe, for then this Court would have to declare that it is
to Dismiss hinges, are as follows:
devoid of legal effect. governed by one Constitution or the 1935 Constitution, and the legislative
and executive branches by another or the 1972 Constitution.
1. Is the question presented political and, hence, beyond the competence
But looking through the veneer of judicial conformity with which the
of this Court to decide, or is it justiciable and fit for judicial determination?
petitions have been adroitly contrived, what is sought to be invalidated is If it declares that the 1972 Constitution is now operative, how can it
the new Constitution itself — the very framework of the present exercise judicial discretion in these cases when it would have no other
2. Was the new Constitution of November 30, 1972, ratified in accordance Government since January 17, 1973. The reason is obvious. The choice but to uphold the new Constitution as against any other one? In the
with the amending process prescribed by Article XV of the 1935 Presidential decrees set up the means for the ratification and acceptance circumstances it would be bereft of judicial attributes as the matter would
Constitution? of the new Constitution and Proclamation No. 1102 simply announced the then be not meet for judicial determination, but one addressed to the
result of the referendum or plebiscite by the people through the Citizens sovereign power of the people who have already spoken and delivered
3. Has the new Constitution been accepted and acquiesced in by the Assemblies. The Government under the new Constitution has been running their mandate by accepting the fundamental law on which the government
Filipino people? on its tracks normally and apparently without obstruction in the form of of this Republic is now functioning. To deny that the new Constitution has
organized resistance capable of jeopardizing its existence and disrupting its been accepted and actually is in operation would be flying in the face of
4. Is the new Constitution actually in force and effect? operation. Ultimately the issue is whether the new Constitution may be set reason and pounding one's bare head against a veritable stone wall or a
aside by this Court. But has it the power and authority to assume such a heavily reinforced concrete, or simply "kicking the deadly pricks" with one's
stupendous task when the result of such invalidation would be to subject bare foot in an effort to eliminate the lethal points.
5. If the answers to questions Nos. 3 and 4 be in the affirmative, are this nation to divisive controversies that may totally destroy the social
petitioners entitled to the reliefs prayed for? order which the Government under the new Constitution has been When a Constitution has been in operation for sometime, even without
admirably protecting and promoting under Martial Law? That the new popular ratification at that, submission of the people thereto by the
II. Constitution has taken deep root and the people are happy and contended organization of the government provided therein and observance of its
with it is a living reality which the most articulate critics of the new order prescriptions by public officers chosen thereunder, is indicative of
The pivotal question in these cases is whether the issue raised is highly cannot deny. 95 out of 108 members of the House of Representatives have approval. Courts should be slow in nullifying a Constitution claimed to have
political and, therefore, not justiciable. I maintain that this Court should opted to serve in the interim National Assembly provided for under the been adopted not in accordance with constitutional or statutory directives
abstain from assuming jurisdiction, but, instead, as an act of judicial new Constitution. 15 out of 24 Senators have done likewise. The members [Miller vs. Johnson, 92 Ky. 589; 189 S.W. 522; Taylor vs Commonwealth,
statesmanship, should dismiss the petitions. In resolving whether or not of the Congress did not meet anymore last January 22, 1973, not because 101; Va. 829; 44 S.E. 754; Smith vs. Good, 34 F 204, 207; Wiston vs. Ryan,
the question presented is political, joint discussion of issues Nos. 1, 3 and 4 they were really prevented from so doing but because of no serious effort 70 Neb. 211; 97 N.W. 347].
is necessary so as to arrive at a logical conclusion. For after the acceptance on their parts to assert their offices under the 1935 Constitution. In brief,
of a new Constitution and acquiescence therein by the people by putting it the Legislative Department under the 1935 Constitution is a thing of the
In Miller vs. Johnson, supra, the Court said:
into practical operation, any question regarding its validity should be past. The Executive Department has been fully reorganized; the
foreclosed and all debates on whether it was duly or lawfully ushered into appointments of key executive officers including those of the Armed Forces
existence as the organic law of the state become political and not judicial in were extended and they took an oath to support and defend the new ... But it is a case where a new constitution has been
character. Constitution. The courts, except the Supreme Court by reason of these formed and promulgated according to the forms of law.
cases, have administered justice under the new constitution. All Great interests have already arisen under it; important
government offices have dealt with the public and performed their rights exist by virtue of it; persons have been convicted
The undisputed facts that led to the issuance of Proclamation No. 1102 and of the highest crimes known to the law, according to its
Presidential Decrees Nos. 86 and 86-A are fully set forth in the majority and provisions; the political power of the government has
Page 69 of 158

in many ways recognized it; and, under such decision upon the question it undertook to try. If it only the cynics will deny this. This Court should not in the least attempt to
circumstances, it is our duty to treat and regard it as a decides at all as a court, it necessarily affirms the act as a super-legislature or a super-board of canvassers and sow confusion
valid constitution, and now the organic law of our state. existence and authority of the government under which and discord among our people by pontificating there was no valid
We need not consider the validity of the amendments it is exercising judicial power. ratification of the new Constitution. The sober realization of its proper role
made after the convention reassembled. If the making and delicate function and its consciousness of the limitations on its
of them was in excess of its power, yet as the entire The foreign relations of the Republic of the Philippines have been normally competence, especially situations like this, are more in keeping with the
instrument has been recognized as valid in the manner conducted on the basis of the new Constitution and no state with which we preservation of our democratic tradition than the blatant declamations of
suggested, it would be equally an abuse of power by the maintain diplomatic relations has withdrawn its recognition of our those who wish the Court to engage in their brand of activism and would
judiciary, and violative of the rights of the people, — government. (For particulars about executive acts done under the new not mind plunging it into the whirlpool of passion and emotion in an effort
who can and properly should remedy the matter, if not Constitution, see pages 22-25 of the Comments of the Solicitor General, to capture the intoxicating applause of the multitude.
to their liking, — if it were to declare the instrument or dated February 3, 1973.)
a portion invalid, and bring confusion and anarchy upon For all the foregoing, I vote to dismiss all petitions.
the state. (Emphasis supplied)
Certainly the invalidation of Proclamation No. 1102 and Presidential
Decrees Nos. 86 and 86-A by this Court would smack of plain political ZALDIVAR, J., concurring and dissenting:
In Smith vs. Good, supra, the Court said: 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 In these five cases, the main issue to be resolved by Court is whether or not
It is said that a state court is forbidden from entering juncture it would be the part of wisdom for this Court to adopt the proper the Constitution proposed by the Constitutional Convention of 1971 had
upon such an inquiry when applied to a new attitude towards political upheavals and realize that the question before Us been ratified in accordance with the provisions of Article XV of the 1935
constitution, and not an amendment, because the is political and not fit for judicial determination. For a political question is Constitution. In the plebiscite cases, which were decided by this Court on
judicial power presupposes an established government, one entrusted to the people for judgment in their sovereign capacity January 22, 19731, I held the view that this issue could be properly resolved
and if the authority of that government is annulled and (Tañada vs. Cuenco, G.R. No. L-10520, Feb. 28,1967; 100 Phil. 1101), or to a by this Court, and that it was in the public interest that this Court should
overthrown, the power of its courts is annulled with it; co-equal and coordinate branch of the Government (Vera vs. Arellano, 77 declare then whether or not the proposed Constitution had been validly
therefore, if a state court should enter upon such an Phil. 192; Mabanag vs. Lopez Vito, 78 Phil. 1; Alejandrino vs. Quezon, 46 ratified. The majority of this Court, however, was of the view that the issue
inquiry, come to the conclusion that the government Phil. 35; Cabili vs. Francisco, G.R. No. 4638, May 8, 1931). A case involves a was not squarely raised in those cases, and so the Court, as a body, did
under which it acted had been displaced by an political question when there would be "the impossibility of undertaking make any categorical pronouncement on the question of whether or not
opposing government, it would cease to be a court, and independent resolutions without expressing a lack of respect due to the Constitution proposed by the 1971 Convention was validly ratified. I
it would be incapable of pronouncing a judicial decision coordinate branches of government", or when there is "the potentiality of was the only one who expressed the opinion that the proposed
upon the question before it; but, if it decides at all, it embarrassment from multifarious pronouncements by various Constitution was not validly ratified and therefore "it should not be given
must necessarily affirm the existence of the departments on one question." force and effect."
government under which it exercises its judicial
powers. (Emphasis supplied) To preserve the prestige and eminence that this Court has long enjoyed as The Court is now called upon to declare, and to inform the people of this
the "ultimate organ of the "Supreme Law of the Land" in that vast range of country, whether or not that proposed Constitution had been validly
These rules are all traceable to Luther vs. Borden, 48 U.S (7 How.), 12 L. Ed. legal problems often strongly entangled in popular feeling on which this ratified and had come into effect.
581, 598 (1849) where it was held: 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.
The Solicitor General, however, contends that this Court has no jurisdiction
Judicial power presupposes an established government 691; 7 L. Ed. 2d. 663:
to resolve the issue that we have mentioned because that issue is a
capable of enacting laws and enforcing their execution, political question that cannot be decided by this Court. This contention by
and appointing judges to expound and administer The Court's authority — possessed neither of the purse the Solicitor General is untenable. A political question relates to "those
them. The acceptance of the judicial office is a nor the sword — ultimately rests on sustained public questions which under the Constitution are to be decided by the people in
recognition of the authority of government from which confidence in its moral sanction. Such feeling must be their sovereign capacity or in regard to which full discretionary authority
it is derived. And if the authority of the government is nourished by the Court's complete detachment, in fact has been delegated to the legislative, or to the executive, branch of the
annulled and overthrown, the power of its courts and and appearance, from political entanglements and government.2 The courts have the power to determine whether the acts of
other officers is annulled with it. And if a State court abstention from injecting itself into the clash of political the executive are authorized by the Constitution and the laws whenever
should enter upon the inquiry proposed in this case, forces in political settlement. ..." (Emphasis supplied) they are brought before the court in a judicial proceeding. The judicial
and should come to conclusion that the government department of the government exercises a sort of controlling, or rather
under which it acted had been put aside and displaced The people have accepted and submitted to a Constitution to replace the restraining, power over the two other departments of the government.
by an opposing government it would cease to be a 1935 Constitution. The new organic law is now in the plenitude of its Each of the three departments, within its proper constitutional sphere, acts
court, and be incapable of pronouncing a judicial efficacy and vigor. We are now living under its aegis and protection and independently of the other, and restraint is only placed on one department
Page 70 of 158

when that sphere is actually transcended. While a court may not restrain On the question now of whether or not the Constitution proposed by the votes cast in an election at which they are submitted to
the executive from committing an unlawful act, it may, when the legality of 1971 Constitutional Convention has been validly ratified, I am reproducing the people for the ratification as provided in the
such an act is brought before it in a judicial proceeding, declare it to be herein pertinent portions of my dissenting opinion in the plebiscite cases: Constitution.
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 The ratification of the Constitution proposed by the This Court, in the case of Tolentino vs. Commission
constitutional government must act according to law and subject to its 1971 Constitutional Convention must be done in Elections, L-35140, October 16, 1971 (41 SCRA 715),
restrictions, and every departure therefrom, or disregard thereof, must accordance with the provisions of Section 1, Article XV speaking through Mr. Justice Barredo, said:
subject him to the restraining and controlling power of the people, acting of the 1935 Constitution of the Philippines, which
through the agency of the judiciary. It must be remembered that the reads: "The Constitutional Convention of
people act through the courts, as well as through the executive or the
1971, as any other convention of
legislature. One department is just as representative as the other, and
"Section 1. The Congress in joint the same nature, owes its existence
judiciary is the department which is charged with the special duty of
session assembled by a vote of and all its authority and power from
determining the limitations which the law places upon all official actions4 .
three fourths of all the Members of the existing Constitution of the
In the case of Gonzales v. Commission on Elections5, this Court ruled that
the Senate and of the House of Philippines. This Convention has not
the issue as to whether or not a resolution of Congress acting as a
Representatives voting separately, been called by the people directly
constituent assembly violates the Constitution is not a political question
may propose amendments to the as in the case of a revolutionary
and is therefore subject to judicial review. In the case of Avelino v. Cuenco6,
Constitution or call a convention for convention which drafts the first
this Court held that the exception to the rule that courts will not interfere
that purpose. Such amendments Constitution of an entirely new
with a political question affecting another department is when such
shall be valid as part of this government born of either a war of
political question involves an issue as to the construction and
Constitution when approved by a liberation from a mother country or
interpretation of the provision of the constitution. And so, it has been held
majority of the votes cast at an of revolution against an existing
that the question of whether a constitution shall be amended or not is a
election at which the amendments government or of a bloodless
political question which is not in the power of the court to decide, but
are submitted to the people for seizure of power a la coup d'etat.
whether or not the constitution has been legally amended is a justiciable
their ratification." As to such kind of conventions, it is
absolutely true that the convention
It is in consonance with the abovequoted provision of is completely without restraint and
My study on the subject of whether a question before the court is political omnipotent all wise, and it as to
the 1935 Constitution that on March 16, 1967, the
or judicial, based on decisions of the courts in the United States — where, such conventions that the remarks
Congress of the Philippines Resolution No. 2 calling a
after all, our constitutional system has been patterned to a large extent — of Delegate Manuel Roxas of the
convention to propose amendments to the
made me arrive at the considered view that it is in the power of this Court, Constitutional Convention of 1934
Constitution of the Philippines. Sec. 7 of said Resolution
as the ultimate interpreter of the Constitution, to determine the validity of quoted by Senator Pelaez refer. No
No. 2 reads as follows:
the proposal, the submission, and the ratification of any change in the amount of rationalization can belie
Constitution. Ratification or non-ratification of a constitutional amendment the fact that the current convention
is a vital element in the procedure to amend the constitution, and I believe "Section 7. The amendments
came into being only because it was
that the Court can inquire into, and decide on, the question of whether or proposed by the Convention shall
called by a resolution of a joint
not an amendment to the constitution, as in the present cases, has been be valid and considered part of the
session of Congress acting as a
ratified in accordance with the requirements prescribed in the Constitution Constitution when approved by a
constituent assembly by authority
that was amended. And so, in the cases now before Us, I believe that the majority of the votes cast in an
of Section 1, Article XV of the
question of whether or not the Constitution proposed by the 1971 election at which they are
present Constitution ... ."
Constitutional Convention had been validly ratified or not is a justiciable submitted to the people for their
question. ratification pursuant to Article XV of
the Constitution. xxx xxx xxx

The Chief Justice, in his opinion, has discussed lengthily the subject on
It follows that from the very resolution of the Congress "As to matters not related to its
whether or not, the cases, before Us involve a political, or a judicial,
of the Philippines which called for the 1971 internal operation and the
question. I fully concur with his conclusion that the question involved in
Constitutional Convention, there was a clear mandate performance of its assigned mission
these cases is justiciable.
that the amendments proposed by the 1971 to propose amendments to the
Convention, in order to be valid and considered part of Constitution, the Convention and its
the Constitution, must be approved by majority of the officers and members are all
Page 71 of 158

subject to all the provisions of the the 1940 Amendments to the Constitution were the act of casting and receiving the
existing Constitution. Now we hold ratified; on March 11, 1947 when the Parity ballots, counting them, and making
that even as to its latter task of Amendment to the Constitution was ratified; and on the return." (Hontiveros vs. Altavas,
proposing amendments to the November 14, 1967 when the amendments to the 24 Phil. 632, 637).
Constitution, it is subject to the Constitution to increase the number of Members of the
provisions of Section 1 of Article House of Representatives and to allow the Members of "Election" implies a choice by an
XV." Congress to run in the elections for Delegates to the electoral body at the time and
Constitutional Convention of 1971 were rejected. substantially in the manner and
In Proclamation No. 1102, issued on January 17, 1973, with the safeguards provided by
the President of the Philippines certified that as a result I cannot see any valid reason why the practice or law with respect to some question
of the voting before the barangays (Citizens procedure in the past, in implementing the or issue. (Leffel v. Brown, Com. P1.,
Assemblies) 14,976,561 members of the barangays constitutional provision requiring the holding, of an 159 N.E. 2d 807, 808 cited in 29
voted for the adoption of the proposed Constitution, as election to ratify or reject an amendment to the C.J.S. 13 at footnote 6.5).
against 743,869 who voted for its rejection, and on the Constitution, has not been followed in the case of the
basis of the overwhelming majority of the votes cast by Constitution proposed by the 1971 Constitutional "... the statutory method
the members of all the barangays throughout the Convention. whereby qualified voters or electors
Philippines, the President proclaimed that the pass on various public matters
Constitution proposed by the 1971 Convention has It is my view that the President of the Philippines submitted to them — the election
been ratified and has thereby come into effect. cannot by decree order the ratification of the proposed of officers, national, state, county,
1972 Constitution thru a voting in the barangays and township — the passing on various
It is very plain from the very wordings of Proclamation make said result the basis for proclaiming the other questions submitted for their
No. 1102 that the provisions of Section 1 of Article XV ratification of the proposed constitution. It is very clear, determination." (29 C.J.S. 13, citing
of the Constitution of 1935 were not complied with. It to me, that Proclamation No. 1102 was issued in Iowa-Illinois Gas & Elec. Co. v. City
is not necessary that evidence be produced before this complete disregard or in violation, of the provisions of of Bettendorf, 41 N.W. 2d 1, 5, 241
Court to show that no elections were held in Section 1 of Article X of the 1935 Constitution. Iowa 358).
accordance with the provisions of the Election Code.
Proclamation No. 1102 unequivocally states that the Proclamation No. 1102 mentions, furthermore, that on "Election" is expression of choice
proposed Constitution of 1972 was voted upon by the the question as to whether or not the people would by voters of body politic. (Ginsburg
barangays. It is very clear, therefore, that the voting still like a plebiscite to be called to ratify the new v. Giles, 72 S.W. 2d 438, 254 Ky.
held in these barangays is not the election Constitution, 14,298,814 members of the barangays 720, in Words and Phrases,
contemplated in the provisions of Section 1, Article XV, answered that there was no need for a plebiscite but Permanent Edition, p. 234).
of the 1935 Constitution. The election contemplated in that the vote of the barangays should be considered a
said constitutional provision is an election held in vote in a plebiscite. It would thus appear that the "The right to vote may be exercised
accordance with the provisions of the election law, barangays assumed the power to determine whether a only on compliance with such
where only the qualified and registered voters of the plebiscite as ordained in the Constitution be held or statutory requirements as have
country would cast their votes, where official ballots not. Indeed, the provision of Section 1, Article XV of the been set by the legislature."
prepared for the purpose are used, where the voters Constitution was completely disregarded. (People ex rel. Rago v. Lipsky, 63
would prepare their ballots in secret inside the voting
N.E. 2d 642, 327 III. App. 63;
booths in the polling places established in the different
The affirmative votes cast in the barangays are not the Rothfels v. Southworth, 356 P. 2d
election precincts throughout the country, where the
votes contemplated in Section 1 of Article XV of the 612, 11 Utah 2d 169 in 29 C.J.S. 38).
election is conducted by election inspectors duly
1935 Constitution. The votes contemplated in said (Emphasis supplied).
appointed in accordance with the election law, where
constitutional provision are votes obtained through the
the votes are canvassed and reported in a manner
election processes as provided by law. In this connection I herein quote the pertinent
provided for in the election law. It was this kind of
election that was held on May 14, 1935, when the provisions of the Election Code of 1971:
Constitution of 1935 was ratified; on April 30, 1937, "An election is the embodiment of
when the amendment to the Constitution providing for the popular will, the expression of "Sec. 2. Applicability of this Act. — All elections of
Women's Suffrage was ratified; on June 18, 1940, when the sovereign power of the people. public officers except barrio officials and plebiscites
In common parlance, an election is
Page 72 of 158

shall be conducted in the manner provided by this the law and the demands a well-ordered society constitution, and conferred upon it
Code." require. The rule of law must prevail even over the powers of sovereignty on certain
apparent will of the majority of the people, if that will subjects, and the people of each
"Sec 99. Necessity of registration to be entitled to vote. had not been expressed, or obtained, in accordance State created a State government,
— In order that a qualified voter may vote in any with the law. Under the rule of law, public questions to exercise the remaining powers of
regular or special election or in any plebiscite, he must must be decided in accordance with the Constitution sovereignty so far as they were
be registered in the permanent list of voters for the and the law. This is specially true in the case of disposed to allow them to be
city, municipality or municipal district in which he adoption of a constitution or in the ratification of an exercised at all. By the constitution
resides: Provided, that no person shall register more amendment to the Constitution. which they establish, they not only
than once without first applying for cancellation of his tie up the hands of their official
previous registration." (Emphasis supplied). (Please see The following citations are, to me, very relevant in the agencies, but their own hands as
also Sections 100-102, Election Code of 1971, R.A. No. effort to determine whether the proposed Constitution well; and neither the officers of the
6388) of 1972 had been validly ratified, or not: State, nor the whole people as an
aggregate body, are at liberty to
take action in opposition to this
It is stated in Proclamation No. 1102 that the voting "When it is said that "the people"
fundamental law." (Cooley's
was done by the members of citizens assemblies who have the right to alter or amend the
Constitutional Limitations, 8th
are 15 years of age or over. Under the provision of constitution, it must not be
Edition, Vol. I, p. 81 cited in Graham
Section I of Article V of the 1935 Constitution, the age understood that term necessarily
v. Jones, 3 So. 2d. 761, 782).
requirement to be a qualified voter is 21 years or over. includes all the inhabitants of the
state. Since the question of the
adoption or rejection of a proposed "The theory that a favorable vote
But what is more noteworthy is the fact that the voting
new constitution or constitutional by the electorate, however
in the barangays, except in very few instances, was
amendment must be answered a unanimous, on a proposal to amend
done by the raising of hands by the persons
vote, the determination of it rests a constitution, may cure, render
indiscriminately gathered to participate in the voting,
with those who, by existing innocuous, all or any antecedent
where even children below 15 years of age were
constitution, are accorded the right failures to observe commands of
included. This is a matter of common observation, or of
of suffrage. But the qualified that Constitution in respect of the
common knowledge, which the Court may take judicial
electors must be understood in this, formulation or submission of
notice of. To consider the votes in the barangays as
as in many other cases, as proposed amendments thereto,
expressive of the popular will and use them as the basis
representing those who have not does not prevail in Alabama, where
in declaring whether a Constitution is ratified or
the right to participate in the ballot. the doctrine of the stated theory
rejected is to resort to a voting by demonstrations,
If a constitution should be was denied, in obvious effect, by
which is would mean the rule of the crowd, which is
abrogated and a new one adopted, the pronouncement 60 years ago of
only one degree higher than the rule by the mob.
by the whole mass of people in a broad, wholesome constitutional
Certainly, so important a question as to whether the
state acting through principles in Collier v.
Constitution, which is the supreme law of the land,
representatives not chosen by the Frierson, supra, as quoted in the
should be ratified or not, must not be decided by
"people" in political sense of the original opinion, ante. The people
simply gathering people and asking them to raise their
term, but by the general body of themselves are bound by the
hands in answer to the question of whether the vote
the populace, the movement would Constitution; and, being so bound,
for or against a proposed Constitution. The election as
be extra-legal." (BIack's are powerless, whatever their
provided by law should be strictly observed in
Constitutional Law, Second Edition, numbers, to change or thwart its
determining the will of the sovereign people in a
pp. 47-48). mandates, except through the
democracy. In our Republic, the will of the people must
peaceful means of a constitutional
be expressed through the ballot in a manner that is
convention, or of an amendment
provided by law. "The theory of our political system
according to the mode therein
is that the ultimate sovereignty is in
prescribed, or through the exertion
It is said that in a democracy, the will of the people is the people, from whom springs all
of the original right of revolution.
the supreme law. Indeed, the people are sovereign, but legitimate authority. The people of
"The Constitution may be set aside
the will of the people must be expressed in a manner as the Union created a national
by revolution, but it can only be
Page 73 of 158

amended in the way it provides," "It is said that chaos and confusion of certificate of candidacy. The Commission on
said Hobson, C.J., in McCreary v. in the government affairs of the Elections, November 8, 1947, ruled that Monsale could
Speer, 156 Ky. 783, 791, 162 S.W. State will result from the Court's no longer be a candidate. Monsale nevertheless
99, 103. (Johnson vs. Craft, et al., 87 action in declaring the proposed proceeded with his candidacy. The boards of inspectors
So. 375, 385, 387, On Rehearing). constitutional amendment void. in Miagao, however, did not count the votes cast for
This statement is grossly and Monsale upon the ground that the votes cast for him
"The fact that a majority voted for manifestly inaccurate. If confusion were stray votes, because he was considered as having
the amendment, unless the vote and chaos should ensue, it will not no certificate of candidacy. On the other hand, the
was taken as provided by the be due to the action of the Court boards of inspectors credited Nico with 2,291 votes,
Constitution, is not sufficient to but will be the result of the failure and Nico was proclaimed elected. Monsale filed a
make a change in that instrument. of the drafters joint resolution to protest against the election of Nico in the Court of First
Whether a proposed amendment observe, follow and obey the plain Instance of Iloilo. In the count of the ballots during the
has been legally adopted is a essential provisions of the proceedings in the trial court, it appeared that Monsale
judicial question, for the court must Constitution. Furthermore, to say had obtained 2,877 votes while Nico obtained 2,276
uphold and enforce the that, the Court disregards its sworn votes, or a margin of 601 votes in favor of Monsale. The
Constitution as written until it is duty to enforce the Constitution, Court of First Instance of Iloilo decided the election
amended in the way which it chaos and confusion will result, is protest in favor of Monsale. Upon appeal by Nico, this
provides for." Wood v. Tooker, 15 an inherently weak argument in Court reversed the decision of the lower court. This
Mont. 8, 37 Pac 840, 25 L.R.A. favor of the alleged Court declared that because Monsale withdrew his
560; McConaughty v. State, 106 constitutionality of the proposed certificate of candidacy, his attempt to revive it by
Minn. 409, 119 N.W. 408; Oakland amendment. It is obvious that, if withdrawing his withdrawal of his certificate of
Paving Company v. Hilton, 69 Cal. the Court were to countenance the candidacy did not restore the effectiveness of his
499, 11 Pac. 3; Utter v. Mosely, 16 violations of the sacramental certificate of candidacy, and this Court declared Nico
Idaho 274, 100 Pac. 1958, 133 Am. provisions Constitution, those who the winner in spite of the fact that Monsale had
St. Rep. 94, 18 Ann. Cas. 723. would thereafter desire to violate it obtained more votes than he.
(McCreary v. Speer, 162 S.W. 99, disregard its clear mandatory
104). provisions would resort to the We have cited this Monsale case to show that the will
scheme of involving and confusing of the majority of the voters would not be given effect,
the affairs of the State then simply as declared by this Court, if certain legal requirements
"Provisions of a constitution
tell the Court that it was powerless have not been complied with in order to render the
regulating its own amendment, ...
to exercise one of its primary votes valid and effective to decide the result of an
are not merely directory, but are
functions by rendering the proper election.
mandatory; and a strict observance
decree to make the Constitution
of every substantial mandatory; and
effective." (Graham v. Jones, 3 So.
a strict observance of every And so, in the cases now before this Court, the fact that
2d. 761, 793-794).
substantial requirement is essential the voting in the citizens assemblies (barangays) is not
to the validity of the proposed the election that is provided for in the 1935
amendment. These provisions are In our jurisprudence I find an instance where this Court Constitution for the ratification of the amendment to
as binding on the people as on the did not allow the will of the majority to prevail, because the Constitution, the affirmative votes cast in those
legislature, and the former are the requirements of the law were not complied with. In assemblies can not be made the basis for declaring the
powerless by vote of acceptance to the case of Monsale v. Nico, 83 Phil. 758, Monsale and ratification of the proposed 1972 Constitution, in spite
give legal sanction to an Nico were both candidates for the office of Municipal of the fact that it was reported that 14,976,561
amendment the submission of Mayor of Miagao, Iloilo, in the elections of November members of the citizens assemblies voted for the
which was made in disregard of the 11, 1947. Monsale had duly filed his certificate of adoption as against 743,869 for the rejection, because
limitations contained in the candidacy before the expiration of the period for the the votes thus obtained were not in accordance with
constitution." (16 C.J.S. 35-36. cited filing of the same. However, on October 10, 1947, after the provisions of Section 1 of Article XV of the 1935
in Graham v. Jones, 3 So. 2d 761, the period for the filing of the certificate of candidacy, Constitution of the Philippines. The rule of law mast be
782). Monsale withdrew his certificate of candidacy. But on upheld.
November 7, 1947 Monsale attempted to revive his
certificate of candidacy by withdrawing the withdrawal
Page 74 of 158

My last observation: One of the valid grounds against emanates from them", the "people" who exercise the sovereign power are the Philippine Legislature at which election, the
the holding of the plebiscite on January 15, 1973, as no other than the persons who have the right to vote under the qualified voters of the Philippine Islands shall have an
provided in Presidential Decree No. 73, is that there is Constitution. In the case of Garchitorena vs. Crescini9, this Court, speaking opportunity to vote directly or against the proposed
no freedom on the part of the people to exercise their through Mr. Justice Johnson, said, "In democracies, the people, combined, constitution and ordinances append thereto. Such
right of choice because of the existence of martial law represent the sovereign power of the State. Their sovereign authority is election shall be held in such manner as may prescribed
in our country. The same ground holds true as regards expressed through the ballot, of the qualified voters, in duly appointed by the Philippine Legislature to which the return of the
to the voting of the barangays on January 10 to 15, elections held from time to time, by means of which they choose their election shall be made. The Philippine Legislature shall
1973. More so, because by General Order No. 20, officials for definite fixed periods, and to whom they entrust, for the time certify the result to the Governor-General of the
issued on January 7, 1973, the President of the being, as their representatives, the exercise of the powers of government." Philippine Islands, together with a statement of the
Philippines ordered "that the provisions of Section 3 of In the case of Moya v. Del Fierro, 10 this Court, speaking through Mr. Justice votes cast, and a copy of said constitution ordinances. If
Presidential Decree No. 73 in so far as they allow free Laurel, said, "As long as popular government is an end to be achieved and a majority of the votes cast shall be for the
public discussion of the proposed constitution, as well safeguarded, suffrage, whatever may be the modality and form devised, constitution, such vote shall be deemed an expression
as my order of December 17, 1972 temporarily must continue to be the means by which the great reservoir of power must of the will of the people of the Philippine
suspending the effects of Proclamation No. 1081 for be emptied into the receptacular agencies wrought by the people through Independence, and the Governor-General shall, within
the purpose of free and open debate on the proposed their Constitution in the interest of good government and the common thirty days after receipt of the certification from the
constitution, be suspended in the meantime." It is, weal. Republicanism, in so far as it implies the adoption of a representative Philippine Legislature, issue a proclamation for
therefore, my view that voting in the barangays on type of government, necessarily points to the enfranchised citizen as a the election of officers of the government of the
January 10, 1973 was not free, and so this is one added particle of popular sovereignty and as the ultimate source of the Commonwealth of the Philippine Islands provided for in
reason why the results of the voting in the barangays established authority." And in the case of Abanil v. Justice of the Peace of the Constitution...
should not be made the basis for proclamation of the Bacolod, 11 this Court said: "In the scheme of our present republican
ratification of the proposed Constitution. government, the people are allowed to have a voice therein through the It can safely be said, therefore, that when the framers of the 1935
instrumentality of suffrage to be availed of by those possessing certain Constitution used, the word "election" in Section I Article XV of the 1935
It is my view, therefore, that Proclamation No. 1102 prescribed qualifications. The people, in clothing a citizen with the elective Constitution they had no other idea in mind except the elections that were
repugnant to the 1935 Constitution, and so it is invalid, franchise for the purpose of securing a consistent and perpetual periodically held in the Philippines for the choice of public officials prior to
and should not be given effect. The Constitution of administration of the government they ordain, charge him with the the drafting of the 1935 Constitution, and also the "election" mentioned in
1972 proposed by the 1971 Constitutional Convention performance of a duty in the nature of a public trust, and in that the Independence Act at which "the qualified voters of the Philippine
should be considered as not yet ratified by the people respect constitute him a representative of the whole people. This duty Islands shall have an opportunity to vote directly for or against the
of this Republic, and so it should not be given force and requires that the privilege thus bestowed exclusively for the benefit of the proposed constitution..." It is but logical to expect that the framers of the
effect. citizen or class of citizens professing it, but in good faith and with an 1935 Constitution would provide a mode of ratifying an amendment to
intelligent zeal for the general benefit and welfare of the state. (U.S. v. that Constitution similar to the mode of ratifying the original Constitution
Cruikshauk, 92 U.S. 588)..." There is no question, therefore, that when we itself.
It is urged by the Solicitor General, however, that the voting in the citizens
talk of sovereign people, what is meant are the people who act through the
assemblies was a substantial compliance with the provisions of Article XV
duly qualified and registered voters who vote during an election that is
of the 1935 Constitution. The Solicitor General maintains that the primary It is clear therefore, that the ratification or any amendment to the 1935
held as provided in the Constitution or in the law.
thrust of the provision of Article XV of the 1935 Constitution is that "to be Constitution could only be done by holding an election, as the term
valid, amendments must gain the approval of the majority recognition of "election" was understood, and practiced, when the 1935 Constitution as
the democratic postulate that sovereign resides in the people." It is not The term "election" as used in Section 1 of Article XV of the 1935 drafted. The alleged referendum in the citizens assemblies — participated
disputed that in a democratic sovereignty resides in the people. But the Constitution should be construed along with the term "election" as used in in by persons aged 15 years or more, regardless of whether they were
term "people" must be understood in its constitutional meaning, and they the Provisions of Section 4 of the Philippine Independence Act of the qualified voters or not, voting by raising their hands, and the results of the
are "those persons who are permitted by the Constitution to exercise the Congress of the United States, popularly known as the Tydings-McDuffie voting reported by the barrio or ward captain, to the municipal mayor, who
elective franchise."8Thus, in Section 2 of Article VII of the 1935 Law (Public Act No. 127). Said Section 4 of the Tydings-McDuffie Law in turn submitted the report to the provincial Governor, and the latter
Constitution, it is provided that "the President shall hold his office during a provides as follows: forwarding the reports to the Department of Local Governments, all
term of four years and, together with the Vice-President chosen for the without the intervention of the Commission on Elections which is the
same term, shall be elected by direct vote of the people..." Certainly under Section 4. After the President of the United States constitutional body which has exclusive charge of the enforcement and
that constitutional provision, the "people" who elect directly the President certified that the constitution conforms with the administration of all laws, relative to the conduct of elections — was not
and the Vice-President are no other than the persons who, under the provisions of this act, it shall be submitted to the only a non-substantial compliance with the provisions of Section 1 of
provisions of the same Constitution, are granted the right to vote. In like people of the Philippine Islands for their ratification or Article XV of the 1935 Constitution but a downright violation of said
manner the provision in Section 1 of Article II of the 1935 Constitution rejection at an election to he held within months after constitutional provision. It would be indulging in sophistry to maintain that
which says "Sovereignty resides in the people and all government authority the date of such certification, on a date to be fixed by the voting in the citizens assemblies amounted to a substantial compliance
Page 75 of 158

with the requirements prescribed in Section 1 of Article XV of the 1935 the interim National Assembly, and 18 members of the House of I sincerely believe that the proposed Constitution may still be submitted to
Constitution. Representatives also did not opt to serve in the interim National Assembly. 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
It is further contended by the Solicitor General, that even if the Neither can it be said that the people have accepted the new Constitution. have adverted to in this opinion, this was the mandate of Congress when,
Constitution proposed by the 1971 Constitutional Convention was not I cannot, in conscience, accept the reported affirmative votes in the on March 16, 1967, it passed Resolution No. 2 calling a convention to
ratified in accordance with the provisions of Section 1 of Article XV of the citizens assemblies as a true and correct expression by the people of their propose amendments to the 1935 Constitution. The Court may take judicial
1935 Constitution, the fact is that after the President of the Philippines had approval, or acceptance, of the proposed Constitution. I have my serious notice of the fact that the President of the Philippines has reassured the
issued Proclamation No. 1102 declaring that the said proposed doubts regarding the freedom of the people to express their views nation that the government of our Republic since the declaration of martial
Constitution "has been ratified by overwhelming majority of all the votes regarding the proposed Constitution during the voting in the citizens law is not a revolutionary government, and that he has been acting all the
cast by the members of all the barangays (citizens assemblies) throughout assemblies, and I have also my serious doubts regarding the truthfulness way in consonance with his powers under the Constitution. The people of
the Philippines and had thereby come into effect" the people have and accuracy of the reports of the voting in the citizens assemblies. This this Republic has reason to be happy because, according to the President,
accepted the new Constitution. What appears to me, however, is that doubt has been engendered in my mind after a careful examination and we still have a constitutional government. It being my view that the 1935
practically it is only the officials and employees under the executive study of the records of these cases, particularly with respect to the reports Constitution is still in force, I believe Congress may still convene and pass a
department of the Government who have been performing their duties of the voting in the citizens assemblies. Perhaps, it may be said that the law calling for an election at which the Constitution proposed by the 1971
apparently in observance of the provisions of the new Constitution. It could people, or the inhabitants of this country, have acquiesced to the new Constitutional Convention will be submitted to the people their ratification
not be otherwise, because the President of the Philippines, who is the head Constitution, in the sense that they have continued to live peacefully and or rejection. A plebiscite called pursuant to Section 1 of Article XV of the
of the executive department, had proclaimed that the new Constitution orderly under the government that has been existing since January 17, 1935 Constitution is an assurance to our people that we still have in our
had come into effect, and his office had taken the steps to implement the 1973 when it was proclaimed that the new Constitution came into effect. country the Rule of Law and that the democratic system of government
provisions of the new Constitution. True it is, that some 92 members of the But what could the people do? In the same way that the people have lived that has been implanted in our country by the Americans, and which has
House of Representatives and 15 members of the Senate, of the Congress under martial law since September 23, 1972, they also have to live under become part of our social and political fabric, is still a reality.
of the Philippines had expressed their option to serve in the interim the government as it now exists, and as it has existed since the declaration
National Assembly that is provided for in Section 2 of Article XVII of the of martial law on September 21, 1972, regardless of what Constitution is The views that I have expressed in this opinion are inspired by a desire on
proposed Constitution. It must be noted, however, that of the 15 senators operative — whether it is the 1935 Constitution or the new Constitution. my part to bring about stability in democratic and constitutional system in
who expressed their option to serve in the interim National Assembly only Indeed, there is nothing that the people can do under the circumstances our country. I feel that if this Court would give its imprimatur to the
one them took his oath of office; and of the 92 members of the House of actually prevailing in our country today — circumstances, known to all, and ratification of the proposed Constitution, as announced in Proclamation
Representatives who opted to serve in the interim National Assembly, only which I do not consider necessary to state in this opinion. I cannot agree, No. 1102, it being very clear that the provisions of Section 1 of Article XV of
22 took their oath of office. The fact that only one Senator out of 24, and therefore, with my worthy colleagues in the Court who hold the view that the 1935 Constitution had not been complied with, We will be opening the
only 22 Representative out of 110, took their oath of office, is an indication the people have accepted the new Constitution, and that because the gates for a similar disregard of the Constitution in the future. What I mean
that only a small portion of the members of Congress had manifested the people have accepted it, the new Constitution should be considered as in is that if this Court now declares that a new Constitution is now in force
acceptance of the new Constitution. It is in the taking of the oath of office force, regardless of the fact that it was not ratified in accordance with the because the members of the citizens assemblies had approved the said
where the affiant says that he swears to "support and defend the provisions of Section 1 of Article XV of the 1935 Constitution. new Constitution, although that approval was not in accordance with the
Constitution" that the acceptance of the Constitution is made manifest. I procedure and the requirements prescribed in the 1935 Constitution, it can
agree with counsel petitioners in L-36165 (Gerardo Roxas, et al. v. It is my honest view that the Constitution proposed by the 1971 happen again in some future time that some amendments to the
Alejandro Melchor, et al.) when he said that the members of Congress who Constitutional Convention has not come into effect. I do not say, however, Constitution may be adopted, even in a manner contrary to the existing
opted to serve in the interim National Assembly did only ex abundante that the proposed Constitution is invalid. To me, the validity of the Constitution and the law, and then said proposed amendment is submitted
cautela, or by way of a precaution, making sure, that in the event the new proposed Constitution is not in issue in the cases before Us. What the to the people in any manner and what will matter is that a basis is claimed
Constitution becomes definitely effective and the interim National petitioners assail is not the validity of the proposed Constitution but the that there was approval by the people. There will not be stability in our
Assembly convened, they can participate in legislative work in the capacity validity of Presidential Proclamation No. 1102 which declares the proposed constitutional system, and necessarily no stability in our government. As a
as duly elected representatives of the people, which otherwise they could Constitution as having been ratified and has come into effect. It being my member of this Court I only wish to contribute my humble efforts to
not do if they did not manifest their option to serve, and that option had to considered view that the ratification of the proposed Constitution, as prevent the happening of such a situation in the future.
be made within 30 day from January 17, 1973, the date when Proclamation proclaimed in Proclamation No. 1102, is not in accordance with the
No. 110 was issued. Of course, if the proposed Constitution does not provisions of Section 1 of Article XV, of the 1935 Constitution, I hold that It appearing to me that the announced ratification of the proposed
become effective, they continue to be members of Congress under the Proclamation No. 1102 is invalid and should not be given force and effect. Constitution through the voting in the citizens assemblies is a clear
1935 Constitution. Let it be considered that the members of the House of Their proposed Constitution, therefore, should be considered as not yet violation of the 1935 Constitution, what I say in this opinion is simply an
Representatives were elected in 1969 to serve a term which will yet expire validly ratified, and so it is not in force. The proposed Constitution may still endeavor on my part to be true to my oath of office to defend and support
on December 31, 1973. Whereas, of the Senators who opted to serve in the be submitted to a plebiscite in conformity with Section 1 of Article XV of the 1935 Constitution. I am inspired by what the great jurist and
interim National Assembly, the term of some of them will yet expire on the 1935 Constitution. Incidentally, I must state that the Constitution is still statesman, Jose P. Laurel, said:
December 31, 1973, some on December 31, 1975, and the rest on in force, and this Court is still functioning under the 1935 Constitution.
December 31, 1977. Let if be noted that 9 Senators did not opt to serve in
Page 76 of 158

Let our judges be as it were the vestal keepers of the verities, but certainly it is more than just a keen but passive observer of the deny our competence to proceed further. It is their view, vigorously
purity and sanctity of our Constitution, and the contemporary scene. It is, by virtue of its role under the separation of pressed and plausibly asserted, that since what is involved is not merely
protection and vindication of popular rights will be safe powers concept, involved not necessarily as a participant in the formation the effectivity of an amendment but the actual coming into effect of a new
and secure in their reverential guardianship. of government policy, but as an arbiter of its legality. Even then, there is constitution, the matter is not justiciable. The immediate reaction is that
realism in what Lerner did say about the American Supreme Court as "the such a contention is to be tested in the light of the fundamental doctrine of
I only wish to help prevent, if I can, democracy and the liberties of our focal point of a set of dynamic forces which [could play] havoc with the separation of powers that it is not only the function but the solemn duty of
people from vanishing in our land, because, as Justice George Sutherland of landmarks of the American state and determine the power configuration of the judiciary to determine what the law is and to apply it in cases and
the U. S. Supreme Court said: the day."3 That is why there is this caveat. In the United States as here, the controversies that call for decision.7 Since the Constitution pre-eminently
exercise of the power of judicial review is conditioned on the necessity that occupies the highest rung in the hierarchy of legal norms, it is in the
the decision of a case or controversy before it so requires. To repeat, the judiciary, ultimately this Tribunal, that such a responsibility is vested. With
(t)he saddest epitaph which can be carved in memory
Justices of the highest tribunal are not, as Justice Frankfurter made clear, the 1935 Constitution containing, as above noted, an explicit article on the
of a vanished liberty is that it was lost because its
"architects of policy. They can nullify the policy of others, they are subject of amendments, it would follow that the presumption to be
possessors failed to stretch forth a saving hand while
incapable of fashioning their own solutions for social indulged in is that the question of whether there has been deference to its
yet there was time.
problems."4 Nonetheless, as was stressed by Professors Black5and terms is for this Court to pass upon. What is more, the
Murphy,6 a Supreme Court by the conclusion it reaches and the decision it Gonzales,8 Tolentino9 and Planas 10 cases speak unequivocally to that
I concur fully with the personal views expressed by the Chief Justice in the renders does not merely check the coordinate branches, but also by its effect. Nor is it a valid objection to this conclusion that what was involved
opinion that he has written in these cases. Along with him, I vote to deny approval stamps with legitimacy the action taken. Thus in affirming in those cases was the legality of the submission and not ratification, for
the motion to dismiss and give due course to the petitions in these cases. constitutional supremacy, the political departments could seek the aid of from the very language of the controlling article, the two vital steps are
the judiciary. For the assent it gives to what has been done conduces to its proposal and ratification, which as pointed out in Dillon v. Gloss, 11 "cannot
FERNANDO, J., dissenting: support in a regime where the rule of law holds sway. In discharging such a be treated as unrelated acts, but as succeeding steps in a single
role, this Court must necessarily take in account not only what the exigent endeavor." 12 Once an aspect thereof is viewed as judicial, there would be
No question more momentous, none impressed with such transcendental needs of the present demand but what may lie ahead in the unexplored no justification for considering the rest as devoid of that character. It would
significance is likely to confront this Court in the near or distant future as and unknown vistas of the future. It must guard against the pitfall of lack of be for me then an indefensible retreat, deriving no justification from
that posed by these petitions. For while the specific substantive issue is the understanding of the dominant forces at work to seek a better life for all, circumstances of weight and gravity, if this Court were to accede to what is
validity of Presidential Proclamation No. 1102, an adverse judgment may especially those suffering from the pangs of poverty and disease, by a blind sought by respondents and rule that the question before us is political.
be fraught with consequences that, to say the least, are far-reaching in its determination to adhere to the status quo. It would be tragic, and a clear
implications. As stressed by respondents, "what petitioners really seek to case of its being recreant to its trust, if the suspicion can with reason be On this point, it may not be inappropriate to refer to a separate opinion of
invalidate is the new Constitution."1 Strict accuracy would of course qualify entertained that its approach amounts merely to a militant vigilantism that mine in Lansang v. Garcia. 13 Thus: "The term has been made applicable to
such statement that what is in dispute, as noted in the opinion of the Chief is violently opposed to any form of social change. It follows then that it controversies clearly non-judicial and therefore beyond its jurisdiction or to
Justice, goes only as far as the validity of its ratification. It could very well does not suffice that recourse be had only to what passes for scholarship in an issue involved in a case appropriately subject to its cognizance, as to
be though that the ultimate outcome is not confined within such limit, and the law that could be marred by inapplicable erudition and narrow which there has been a prior legislative or executive determination to
this is not to deny that under its aegis, there have been marked gains in the legalism. Even with due recognition, such factors, however, I cannot, for which deference must be paid. It has likewise been employed loosely to
social and economic sphere, but given the premise of continuity in a reasons to be set more lengthily and in the light of the opinion of the Chief characterize a suit where the party proceeded against is the President or
regime under a fundamental law, which itself explicitly recognizes the need Justice, reach the same result as the majority of my brethren. For, in the Congress, or any branch thereof. If to be delimited with accuracy, "political
for change and the process for bringing it about,2 it seems to me that the last analysis, it is my firm conviction that the institution of judicial review questions" should refer to such as would under the Constitution be
more appropriate course is this Court to give heed to the plea of speaks too clearly for the point to be missed that official action, even with decided by the people in their sovereign capacity or in regard to full
petitioners that the most serious attention be paid to their submission that due allowance made for the good faith that invariably inspires the step discretionary authority is vested either in the President or Congress. It is
the challenged executive act fails to meet the test of constitutionality. taken, has to face the gauntlet of a court suit whenever there is a proper thus beyond the competence of the judiciary to pass upon. Unless clearly
Under the circumstances, with regret and with due respect for the opinion case with the appropriate parties. falling within the formulation, the decision reached by the political
of my brethren, I must perforce dissent. It would follow therefore that the branches whether in the form of a congressional act or an executive order
legal position taken by the Chief Justice as set forth with his usual lucidity 1. Respondents are acting in the soundest constitutional tradition when, at could be tested in court. Where private rights are affected, the judiciary
and thoroughness has, on the whole, my concurrence, subject, of course, the outset, they would seek a dismissal of these petitions. For them, the has no choice but to look into its validity. It is not to be lost sight of that
to reservations insofar as it contains views and nuances to which I have in question raised is political and thus beyond the jurisdiction of this Court. such a power comes into play if there be an appropriate proceeding that
the past expressed doubts. Nonetheless, I feel that a brief expression of the Such an approach cannot be indicted for unorthodoxy. It is implicit in the may be filed only after each coordinate branch has acted. Even when the
reasons for the stand I take would not be amiss. concept of the rule of law that rights belong to the people and the Presidency or Congress possesses plenary powers, its improvident exercise
government possesses powers only. Essentially then, unless such an or the abuse thereof, if shown, may give rise to a justiciable controversy.
In coping with its responsibility arising from the function of judicial review, authority may either be predicated on express or implied grant in the For the constitutional grant of authority is usually unrestricted. There are
this Court is not expected to be an oracle given to utterances of eternal Constitution or the statutes, an exercise thereof cannot survive an inquiry limits to what may be done and how it is to be accomplished. Necessarily
as to its validity. Respondents through Solicitor-General Mendoza would then, the courts in the proper exercise of judicial review could inquire into
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the question of whether or not either of the two coordinate branches has consideration, free from politics, indifferent to popularity, and unafraid of procedure for independent mediation and construction to reconcile the
adhered to what is laid down by the Constitution. The question thus posed criticism in the accomplishment of our sworn duty as we see it and as we inevitable disputes over the boundaries of constitutional power which arise
is judicial rather than political." 14 The view entertained by Professor Dodd understand it." 22 The hope of course was that such assertion of in the process of government." 27 More than that, he took pains to
is not too dissimilar. For him such a term "is employed to designate certain independence impartiality was not mere rhetoric. That is a matter more emphasize: "Whether another method of enforcing the Constitution could
types of functions committed to the political organs of government (the appropriately left to others to determine. It suffices to stake that what have been devised, the short answer is that no such method developed.
legislative and executive departments, or either of them) and not subject elicits approval on the part of our people of a judiciary ever alert to inquire The argument over the constitutionality of judicial review has long since
to judicial investigation." 15 After a thorough study of American judicial into alleged breaches of the fundamental law is the realization that to do been settled by history. The power and duty of the Supreme Court to
decisions, both federal and state, he could conclude: "The field of judicial so is merely to do what is expected of it and that thereby there is no declare statutes or executive action unconstitutional in appropriate cases is
nonenforceability is important, but is not large when contrasted with the invasion of spheres appropriately belonging to the political branches. For it part of the living Constituti