Page 1 of 158
EN BANC
G.R. No. L-36142 March 31, 1973
JOSUEJAVELLANA, petitioner,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF NATIONAL
DEFENSE, THE SECRETARY OF JUSTICE AND THE SECRETARY OF
FINANCE, respondents.
G.R. No. L-36164 March 31, 1973
VIDAL TAN, J. ANTONIO ARANETA, ALEJANDRO ROCES, MANUEL
CRUDO, ANTONIO U. MIRANDA, EMILIO DE PERALTA AND
LORENZO M. TAÑADA, petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF FINANCE , THE
SECRETARY OF JUSTICE, THE SECRETARY OF LAND REFORM, THE
SECRETARY OF NATIONAL DEFENSE, THE AUDITOR GENERAL, THE
BUDGET COMMISSIONER, THE CHAIRMAN OF PRESIDENTIAL
COMMISSION ON REORGANIZATION, THE TREASURER OF THE
PHILIPPINES, THE COMMISSION ON ELECTIONS AND THE
COMMISSIONER OF CIVIL SERVICE, respondents.
G.R. No. L-36165 March 31, 1973.
GERARDO ROXAS, AMBROSIO PADILLA, JOVITO R. SALONGA,
SALVADOR H. LAUREL, RAMON V. MITRA, JR. and EVA ESTRADA-
KALAW, petitioners,
vs.
ALEJANDRO MELCHOR, in his capacity as Executive Secretary;
JUAN PONCE ENRILE, in his capacity as Secretary of National
Defense; General ROMEO ESPINO, in his capacity as Chief of Staff
of the Armed Forces of the Philippines; TANCIO E. CASTAÑEDA, in
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
Senate, respondents.
G.R. No. L-36236 March 31, 1973
EDDIE B. MONTECLARO, [personally and in his capacity as
President of the National Press Club of the
Philippines], petitioner,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF PUBLIC
INFORMATION, THE AUDITOR GENERAL, THE BUDGET
COMMISSIONER & THE NATIONAL TREASURER, respondents.
G.R. No. L-36283 March 31, 1973
NAPOLEON V. DILAG, ALFREDO SALAPANTAN, JR., LEONARDO
ASODISEN, JR., and RAUL M. GONZALEZ, petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY, THE HONORABLE
SECRETARY OF NATIONAL DEFENSE, THE HONORABLE BUDGET
COMMISSIONER, THE HONORABLE AUDITOR
GENERAL, respondents.
Ramon A. Gonzales for petitioner Josue Javellana.
Lorenzo M. Tañada and Associates for petitioners Vidal Tan, et al.
Tañada, Salonga, Ordoñez, Rodrigo, Sanidad, Roxas. Gonzales and
Arroyo for petitioners Gerardo Roxas, et al.
Joker P. Arroyo and Rogelio B. Padilla for petitioner Eddie
Monteclaro.
Raul M. Gonzales and Associates for petitioners Napoleon V. Dilag,
et al.
Arturo M. Tolentino for respondents Gil J. Puyat and Jose Roy.
Office of the Solicitor General Estelito P. Mendoza, Solicitor Vicente
V. Mendoza and Solicitor Reynato S. Puno for other respondents.
RESOLUTION
CONCEPCION, C.J.:
The above-entitled five (5) cases are a sequel of cases G.R. Nos. L-
35925,
L-35929, L-35940, L-35941, L-35942, L-35948, L-35953, L-35961, L-
35965 and
L-35979, decided on January 22, 1973, to which We will hereafter
refer collectively as the plebiscite cases.
Background of the Plebiscite Cases.
The factual setting thereof is set forth in the decision therein
rendered, from which We quote:
On March 16, 1967, Congress of the Philippines
passed Resolution No. 2, which was amended by
Resolution No. 4 of said body, adopted on June
17, 1969, calling a Convention to propose
amendments to the Constitution of the
Philippines. Said Resolution No. 2, as amended,
was implemented by Republic Act No. 6132,
approved on August 24, 1970, pursuant to the
provisions of which the election of delegates to
said Convention was held on November 10, 1970,
and the 1971 Constitutional Convention began to
perform its functions on June 1, 1971. While the
Convention was in session on September 21,
1972, the President issued Proclamation No. 1081
placing the entire Philippines under Martial Law.
On November 29, 1972, the Convention approved
its Proposed Constitution of the Republic of the
Philippines. The next day, November 30, 1972,
the President of the Philippines issued
Presidential Decree No. 73, "submitting to the
Filipino people for ratification or rejection the
Constitution of the Republic of the Philippines
proposed by the 1971 Constitutional Convention,
and appropriating funds therefor," as well as
setting the plebiscite for said ratification or
rejection of the Proposed Constitution on January
15, 1973.
Soon after, or on December 7, 1972, Charito
Planas filed, with this Court, Case G.R. No. L-
35925, against the Commission on Elections, the
Treasurer of the Philippines and the Auditor
General, to enjoin said "respondents or their
agents from implementing Presidential Decree
No. 73, in any manner, until further orders of the

Court," upon the grounds, inter alia, that said
Presidential Decree "has no force and effect as
law because the calling ... of such plebiscite, the
setting of guidelines for the conduct of the same,
the prescription of the ballots to be used and the
question to be answered by the voters, and the
appropriation of public funds for the purpose,
are, by the Constitution, lodged exclusively in
Congress ...," and "there is no proper submission
to the people of said Proposed Constitution set
for January 15, 1973, there being no freedom of
speech, press and assembly, and there being no
sufficient time to inform the people of the
contents thereof."
Substantially identical actions were filed, on
December 8, 1972, by Pablo C. Sanidad against
the Commission on Elections (Case G.R. No. L-
35929) on December 11, 1972, by Gerardo Roxas,
et al., against the Commission on Elections, the
Director of Printing, the National Treasurer and
the Auditor General (Case G.R. L-35940), by Eddie
B. Monteclaro against the Commission on
Elections and the Treasurer of the Philippines
(Case G.R. No. L-35941), and by Sedfrey Ordoñez,
et al. against the National Treasurer and the
Commission on Elections (Case G.R. No. L-35942);
on December 12, 1972, by Vidal Tan, et al.,
against the Commission on Elections, the
Treasurer of the Philippines, the Auditor General
and the Director of Printing (Case G.R. No. L-
35948) and by Jose W. Diokno and Benigno S.
Aquino against the Commission on Elections (Case
G.R. No. L-35953); on December 14, 1972, by
Jacinto Jimenez against the Commission on
Elections, the Auditor General, the Treasurer of
the Philippines and the Director of the Bureau of
Printing (Case G.R. No. L-35961), and by Raul M.
Gonzales against the Commission on Elections,
the Budget Commissioner, the National Treasurer
and the Auditor General (Case G.R. No. L-35965);
and on December 16, 1972, by Ernesto C. Hidalgo
against the Commission on Elections, the
Secretary of Education, the National Treasurer
and the Auditor General (Case G.R. No. L-35979).
In all these cases, except the last (G.R. No. L-
35979), the respondents were required to file
their answers "not later than 12:00 (o'clock) noon
of Saturday, December 16, 1972." Said cases
were, also, set for hearing and partly heard on
Monday, December 18, 1972, at 9:30 a.m. The
hearing was continued on December 19, 1972. By
agreement of the parties, the aforementioned
last case — G.R. No. L-35979 — was, also, heard,
jointly with the others, on December 19, 1972. At
the conclusion of the hearing, on that date, the
parties in all of the aforementioned cases were
given a short period of time within which "to
submit their notes on the points they desire to
stress." Said notes were filed on different dates,
between December 21, 1972, and January 4,
1973.
Meanwhile, or on December 17, 1972, the
President had issued an order temporarily
suspending the effects of Proclamation No. 1081,
for the purpose of free and open debate on the
Proposed Constitution. On December 23, the
President announced the postponement of the
plebiscite for the ratification or rejection of the
Proposed Constitution. No formal action to this
effect was taken until January 7, 1973, when
General Order No. 20 was issued, directing "that
the plebiscite scheduled to be held on January 15,
1978, be postponed until further notice." Said
General Order No. 20, moreover, "suspended in
the meantime" the "order of December 17, 1972,
temporarily suspending the effects of
Proclamation No. 1081 for purposes of free and
open debate on the proposed Constitution."
In view of these events relative to the
postponement of the aforementioned plebiscite,
the Court deemed it fit to refrain, for the time
being, from deciding the aforementioned cases,
for neither the date nor the conditions under
Page 2 of 158
which said plebiscite would be held were known
or announced officially. Then, again, Congress
was, pursuant to the 1935 Constitution,
scheduled to meet in regular session on January
22, 1973, and since the main objection to
Presidential Decree No. 73 was that the President
does not have the legislative authority to call a
plebiscite and appropriate funds therefor, which
Congress unquestionably could do, particularly in
view of the formal postponement of the plebiscite
by the President — reportedly after consultation
with, among others, the leaders of Congress and
the Commission on Elections — the Court
deemed it more imperative to defer its final
action on these cases.
"In the afternoon of January 12, 1973, the
petitioners in Case G.R. No.
L-35948 filed an "urgent motion," praying that
said case be decided "as soon as possible,
preferably not later than January 15, 1973." It was
alleged in said motion, inter alia:
"6. That the President subsequently announced
the issuance of Presidential Decree No. 86
organizing the so-called Citizens Assemblies, to be
consulted on certain public questions [Bulletin
Today, January 1, 1973];
"7. That thereafter it was later announced that
"the Assemblies will be asked if they favor or
oppose —
[1] The New Society;
[2] Reforms instituted under
Martial Law;
[3] The holding of a plebiscite
on the proposed new
Constitution and when (the
tentative new dates given
following the postponement of

the plebiscite from the original
date of January 15 are February
19 and March 5);
[4] The opening of the regular
session slated on January 22 in
accordance with the existing
Constitution despite Martial
Law." [Bulletin Today, January 3,
1973.]
"8. That it was later reported that the following
are to be the forms of the questions to be asked
to the Citizens Assemblies: —
[1] Do you approve of the New
Society?
[2] Do you approve of the
reform measures under martial
law?
[3] Do you think that Congress
should meet again in regular
session?
[4] How soon would you like the
plebiscite on the new
Constitution to be held?
[Bulletin Today, January 5,
1973].
"9. That the voting by the so-called Citizens
Assemblies was announced to take place during
the period from January 10 to January 15, 1973;
"10. That on January 10, 1973, it was reported
that on more question would be added to the
four (4) question previously announced, and that
the forms of the question would be as follows: —
[1] Do you like the New Society?
Page 3 of 158
[2] Do you like the reforms [6] Do you want martial law to
under martial law? continue? [Bulletin Today,
January 11, 1973; emphasis
[3] Do you like Congress again supplied]
to hold sessions?
"12. That according to reports, the returns with
[4] Do you like the plebiscite to respect to the six (6) additional questions quoted
be held later? above will be on a form similar or identical to
Annex "A" hereof;
[5] Do you like the way
President Marcos running the "13. That attached to page 1 of Annex "A" is
affairs of the another page, which we marked as Annex "A-1",
government? [Bulletin Today, and which reads: —
January 10, 1973; emphasis an
additional question.] COMMENTS ON
"11. That on January 11, 1973, it was reported QUESTION No. 1
that six (6) more questions would be submitted to
the so-called Citizens Assemblies: — In order to
broaden the
[1] Do you approve of the base of
citizens assemblies as the base citizens'
of popular government to participation
decide issues of national in
interests? government.
[2] Do you approve of the new QUESTION No. 2
Constitution?
But we do not want the Ad
[3] Do you want a plebiscite to Interim Assembly to be
be called to ratify the new convoked. Or if it is to be
Constitution? convened at all, it should not be
done so until after at least
[4] Do you want the elections to seven (7) years from the
be held in November, 1973 in approval of the New
accordance with the provisions Constitution by the Citizens
of the 1935 Constitution? Assemblies.
[5] If the elections would not be QUESTION No. 3
held, when do you want the
next elections to be called? The vote of the Citizens
Assemblies should already be

considered the plebiscite on the
New Constitution.
If the Citizens Assemblies
approve of the New
Constitution, then the new
Constitution should be deemed
ratified.
QUESTION No. 4
We are sick and tired of too
frequent elections. We are fed
up with politics, of so many
debates and so much expenses.
QUESTION No. 5
Probably a period of at least
seven (7) years moratorium on
elections will be enough for
stability to be established in the
country, for reforms to take
root and normalcy to return.
QUESTION No. 6
We want President Marcos to
continue with Martial Law. We
want him to exercise his powers
with more authority. We want
him to be strong and firm so
that he can accomplish all his
reform programs and establish
normalcy in the country. If all
other measures fail, we want
President Marcos to declare a
revolutionary government along
the lines of the new
Constitution without the ad
interim Assembly."
"Attention is respectfully invited to the comments
on "Question No. 3," which reads: —
QUESTION No. 3
The vote of the Citizens
Assemblies should be
considered the plebiscite on the
New Constitution.
If the Citizens Assemblies
approve of the New
Constitution, then the new
Constitution should be deemed
ratified.
This, we are afraid, and therefore allege, is
pregnant with ominous possibilities.
14. That, in the meantime, speaking on television
and over the radio, on January 7, 1973, the
President announced that the limited freedom of
debate on the proposed Constitution was being
withdrawn and that the proclamation of martial
law and the orders and decrees issued thereunder
would thenceforth strictly be enforced [Daily
Express, January 8, 1973];
15. That petitioners have reason to fear, and
therefore state, that the question added in the
last list of questions to be asked to the Citizens
Assemblies, namely: — in relation to the question
following it: —
Do you still want a plebiscite to be called to ratify
the new Constitution?" —
would be an attempt to by-pass and short-circuit
this Honorable Court before which the question
of the validity of the plebiscite on the proposed
Constitution is now pending;
Page 4 of 158
"16. That petitioners have reason to fear, and
therefore allege, that if an affirmative answer to
the two questions just referred to will be
reported then this Honorable Court and the entire
nation will be confronted with a fait
accompli which has been attained in a highly
unconstitutional and undemocratic manner;
"17. That the fait accompli would consist in the
supposed expression of the people approving the
proposed Constitution;
"18. That, if such event would happen, then the
case before this Honorable Court could, to all
intents and purposes, become moot because,
petitioners fear, and they therefore allege, that
on the basis of such supposed expression of the
will of the people through the Citizens
Assemblies, it would be announced that the
proposed Constitution, with all its defects, both
congenital and otherwise, has been ratified;
"19. That, in such a situation the Philippines will
be facing a real crisis and there is likelihood of
confusion if not chaos, because then, the people
and their officials will not know which
Constitution is in force.
"20. That the crisis mentioned above can only be
avoided if this Honorable Court will immediately
decide and announce its decision on the present
petition;
"21. That with the withdrawal by the President of
the limited freedom of discussion on the
proposed Constitution which was given to the
people pursuant to Sec. 3 of Presidential Decree
No. 73, the opposition of respondents to
petitioners' prayer at the plebiscite be prohibited
has now collapsed and that a free plebiscite can
no longer be held."

At about the same time, a similar prayer was they were supposed to have met during the period between
made in a "manifestation" filed by the petitioners January 10 and January 15, 1973, particularly on the two questions
in L-35949, "Gerardo Roxas, et al. v. Commission quoted in paragraph 1 of this Supplemental Urgent Motion;
on Elections, et al.," and L-35942, "Sedfrey A.
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
The next day, January 13, 1973, which was a being made the basis of a supposed consensus for the ratification
Saturday, the Court issued a resolution requiring of the proposed Constitution because: —
the respondents in said three (3) cases to
comment on said "urgent motion" and [a] The elections contemplated
"manifestation," "not later than Tuesday noon, in the Constitution, Article XV,
January 16, 1973." Prior thereto, or on January at which the proposed
15, 1973, shortly before noon, the petitioners in constitutional amendments are
said Case G.R. No. L-35948 riled a "supplemental to be submitted for ratification,
motion for issuance of restraining order and are elections at which only
inclusion of additional respondents," praying — qualified and duly registered
voters are permitted to vote,
"... that a restraining order be issued enjoining and restraining whereas, the so called Citizens'
respondent Commission on Elections, as well as the Department of Assemblies were participated in
Local Governments and its head, Secretary Jose Roño; the by persons 15 years of age and
Department of Agrarian Reforms and its head, Secretary Conrado older, regardless of
Estrella; the National Ratification Coordinating Committee and its qualifications or lack thereof, as
Chairman, Guillermo de Vega; their deputies, subordinates and prescribed in the Election Code;
substitutes, and all other officials and persons who may be assigned
such task, from collecting, certifying, and announcing and reporting [b] Elections or plebiscites for
to the President or other officials concerned, the so-called Citizens' the ratification of constitutional
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
January 10 and January 15, 1973, on the two questions quoted in have provisions for the secrecy
paragraph 1 of this Supplemental Urgent Motion." of choice and of vote, which is
one of the safeguards of
In support of this prayer, it was alleged — freedom of action, but votes in
the Citizens' Assemblies were
"3. That petitioners are now before this Honorable Court in order to open and were cast by raising
ask further that this Honorable Court issue a restraining order hands;
enjoining herein respondents, particularly respondent Commission
on Elections as well as the Department of Local Governments and [c] The Election Code makes
its head, Secretary Jose Roño; the Department of Agrarian Reforms ample provisions for free,
and its head, Secretary Conrado Estrella; the National Ratification orderly and honest elections,
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
certifying, announcing and reporting to the President the supposed elections or plebiscites for the
Citizens' Assemblies referendum results allegedly obtained when ratification of constitutional
Page 5 of 158
amendments, but there were no
similar provisions to guide and
regulate proceedings of the so
called Citizens' Assemblies;
[d] It is seriously to be doubted that, for lack of material time, more
than a handful of the so called Citizens' Assemblies have been
actually formed, because the mechanics of their organization were
still being discussed a day or so before the day they were supposed
to begin functioning: —
"Provincial governors and city and municipal mayors had been
meeting with barrio captains and community leaders since last
Monday [January 8, 1973) to thresh out the mechanics in the
formation of the Citizens Assemblies and the topics for discussion."
[Bulletin Today, January 10, 1973]
"It should be recalled that the Citizens'
Assemblies were ordered formed only at the
beginning of the year [Daily Express, January 1,
1973], and considering the lack of experience of
the local organizers of said assemblies, as well as
the absence of sufficient guidelines for
organization, it is too much to believe that such
assemblies could be organized at such a short
notice.
"5. That for lack of material time, the appropriate
amended petition to include the additional
officials and government agencies mentioned in
paragraph 3 of this Supplemental Urgent Motion
could not be completed because, as noted in the
Urgent Motion of January 12, 1973, the
submission of the proposed Constitution to the
Citizens' Assemblies was not made known to the
public until January 11, 1973. But be that as it
may, the said additional officials and agencies
may be properly included in the petition at bar
because: —
[a] The herein petitioners have
prayed in their petition for the
annulment not only of

Presidential Decree No. 73, but
also of "any similar decree,
proclamation, order or
instruction.
so that Presidential Decree No. 86, insofar at least
as it attempts to submit the proposed
Constitution to a plebiscite by the so-called
Citizens' Assemblies, is properly in issue in this
case, and those who enforce, implement, or carry
out the said Presidential Decree No. 86. and the
instructions incidental thereto clearly fall within
the scope of this petition;
[b] In their petition, petitioners sought the issuance of a writ of
preliminary injunction restraining not only the respondents named
in the petition but also their "agents" from implementing not only
Presidential Decree No. 73, but also "any other similar decree,
order, instruction, or proclamation in relation to the holding of a
plebiscite on January 15, 1973 for the purpose of submitting to the
Filipino people for their ratification or rejection the 1972 Draft or
proposed Constitution approved by the Constitutional Convention
on November 30, 1972"; and finally,
[c] Petitioners prayed for such other relief which may be just and
equitable. [p. 39, Petition].
"Therefore, viewing the case from all angles, the officials and
government agencies mentioned in paragraph 3 of this
Supplemental Urgent Motion, can lawfully be reached by the
processes of this Honorable Court by reason of this petition,
considering, furthermore, that the Commission on Elections has
under our laws the power, among others, of: —
(a) Direct and immediate supervision and control over national,
provincial, city, municipal and municipal district officials required by
law to perform duties relative to the conduct of elections on
matters pertaining to the enforcement of the provisions of this
Code ..." [Election Code of 1971, Sec. 3].
"6. That unless the petition at bar is decided immediately and the
Commission on Elections, together with the officials and
government agencies mentioned in paragraph 3 of this
Page 6 of 158
Supplemental Urgent Motion are restrained or enjoined from read Proclamation No. 1102 which is of the
collecting, certifying, reporting or announcing to the President the following tenor:
results of the alleged voting of the so-called Citizens' Assemblies,
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
democracy, and the petitioners herein because: "PROCLAMATION NO. 1102
[a] After the result of the supposed voting on the questions "ANNOUNCING THE RATIFICATION BY THE
mentioned in paragraph 1 hereof shall have been announced, a FILIPINO PEOPLE OF THE CONSTITUTION
conflict will arise between those who maintain that the 1935 PROPOSED BY THE 1971 CONSTITUTIONAL
Constitution is still in force, on the one hand, and those who will CONVENTION.
maintain that it has been superseded by the proposed Constitution,
on the other, thereby creating confusion, if not chaos;
"WHEREAS, the Constitution proposed by the
nineteen hundred seventy-one Constitutional
[b] Even the jurisdiction of this Court will be subject to serious Convention is subject to ratification by the Filipino
attack because the advocates of the theory that the proposed people;
Constitution has been ratified by reason of the announcement of
the results of the proceedings of the so-called Citizens' Assemblies
"WHEREAS, Citizens Assemblies were created in
will argue that, General Order No. 3, which shall also be deemed
barrios, in municipalities and in districts/wards in
ratified pursuant to the Transitory Provisions of the proposed
chartered cities pursuant to Presidential Decree
Constitution, has placed Presidential Decree Nos. 73 and 86 beyond
No. 86, dated December 31, 1972, composed of
the reach and jurisdiction of this Honorable Court."
all persons who are residents of the barrio,
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
Court passed a resolution requiring the and who are registered in the list of Citizen
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;
P.M., Tuesday, January 16, 1973," and setting the
motion for hearing "on January 17, 1973, at 9:30
"WHEREAS, the said Citizens Assemblies were
a.m." While the case was being heard, on the
established precisely to broaden the base of
date last mentioned, at noontime, the Secretary
citizen participation in the democratic process
of Justice called on the writer of this opinion and
and to afford ample opportunity for the citizenry
said that, upon instructions of the President, he
to express their views on important national
(the Secretary of Justice) was delivering to him
issues;
(the writer) a copy of Proclamation No. 1102,
which had just been signed by the President.
"WHEREAS, responding to the clamor of the
Thereupon, the writer returned to the Session
people and pursuant to Presidential Decree No.
Hall and announced to the Court, the parties in
86-A, dated January 5, 1973, the following
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,
New Constitution? Do you still want a plebiscite
according to information conveyed by the
to be called to ratify the new Constitution?
Secretary of Justice, signed said Proclamation No.
1102, earlier that morning. Thereupon, the writer

"WHEREAS, fourteen million nine hundred
seventy-six thousand five hundred sixty-one
(14,976,561) members of all the Barangays
(Citizens Assemblies) voted for the adoption of
the proposed Constitution, as against seven
hundred forty-three thousand eight hundred
sixty-nine (743,869) who voted for its rejection;
while on the question as to whether or not the
people would still like a plebiscite to be called to
ratify the new Constitution, fourteen million two
hundred ninety-eight thousand eight hundred
fourteen (14,298,814) answered that there was
no need for a plebiscite and that the vote of the
Barangays (Citizens Assemblies) should be
considered as a vote in a plebiscite;
"WHEREAS, since the referendum results show
that more than ninety-five (95) per cent of the
members of the Barangays (Citizens Assemblies)
are in favor of the new Constitution,
the Katipunan ng Mga Barangay has strongly
recommended that the new Constitution should
already be deemed ratified by the Filipino people;
"NOW, THEREFORE, I, FERDINAND E. MARCOS,
President of the Philippines, by virtue of the
powers in me vested by the Constitution, do
hereby certify and proclaim that the Constitution
proposed by the nineteen hundred and seventy-
one (1971) Constitutional Convention has been
ratified by an overwhelming majority of all of the
votes cast by the members of all the Barangays
(Citizens Assemblies) throughout the Philippines,
and has thereby come into effect.
"IN WITNESS WHEREOF, I have hereunto set my
hand and caused the seal of the Republic of the
Philippines to be affixed.
"Done in the City of Manila, this 17th day of
January, in the year of Our Lord, nineteen
hundred and seventy-three.
"By the President:
"ALEJANDRO MELCHOR
"Executive Secretary"
Such is the background of the cases submitted
determination. After admitting some of the
allegations made in the petition in L-35948 and
denying the other allegations thereof,
respondents therein alleged in their answer
thereto, by way affirmative defenses: 1) that the
"questions raised" in said petition "are political in
character"; 2) that "the Constitutional Convention
acted freely and had plenary authority to propose
not only amendments but a Constitution which
would supersede the present Constitution"; 3)
that "the President's call for a plebiscite and the
appropriation of funds for this purpose are valid";
4) that "there is not an improper submission" and
"there can be a plebiscite under Martial Law"; and
5) that the "argument that the Proposed
Constitution is vague and incomplete, makes an
unconstitutional delegation of power, includes a
referendum on the proclamation of Martial Law
and purports to exercise judicial power" is "not
relevant and ... without merit." Identical defenses
were set up in the other cases under
consideration.
Immediately after the hearing held on January 17,
1973, or since the afternoon of that date, the
Members of the Court have been deliberating on
the aforementioned cases and, after extensive
discussions on the merits thereof, have deemed it
best that each Member write his own views
thereon and that thereafter the Chief Justice
should state the result or the votes thus cast on
the points in issue. Hence, the individual views of
my brethren in the Court are set forth in the
opinions attached hereto, except that, instead of
writing their separate opinions, some Members
Page 7 of 158
have preferred to merely concur in the opinion of
one of our colleagues.
Then the writer of said decision expressed his own opinion on the
issues involved therein, after which he recapitulated the views of
the Members of the Court, as follows:
1. There is unanimity on the justiciable nature of
the issue on the legality of Presidential Decree
No. 73.
2. On the validity of the decree itself, Justices
Makalintal, Castro, Fernando, Teehankee,
Esguerra and myself, or six (6) Members of the
Court, are of the opinion that the issue has
become moot and academic, whereas Justices
Barredo, Makasiar and Antonio voted to uphold
the validity of said Decree.
3. On the authority of the 1971 Constitutional
Convention to pass the proposed Constitution or
to incorporate therein the provisions contested
by the petitioners in L-35948, Justices Makalintal,
Castro, Teehankee and Esguerra opine that the
issue has become moot and academic. Justices
Fernando, Barredo, Makasiar, Antonio and myself
have voted to uphold the authority of the
Convention.
4. Justice Fernando, likewise, expressed the view
that the 1971 Constitutional Convention had
authority to continue in the performance of its
functions despite the proclamation of Martial
Law. In effect, Justices Barredo, Makasiar and
Antonio hold the same view.
5. On the question whether the proclamation of
Martial Law affected the proper submission of the
proposed Constitution to a plebiscite, insofar as
the freedom essential therefor is concerned,
Justice Fernando is of the opinion that there is a
repugnancy between the election contemplated
under Art. XV of the 1935 Constitution and the

existence of Martial Law, and would, therefore,
grant the petitions were they not moot and
academic. Justices Barredo, Antonio and Esguerra
are of the opinion that issue involves questions of
fact which cannot be predetermined, and that
Martial Law per se does not necessarily preclude
the factual possibility of adequate freedom, for
the purposes contemplated.
6. On Presidential Proclamation No. 1102, the
following views were expressed:
a. Justices Makalintal, Castro,
Fernando, Teehankee,
Makasiar, Esguerra and myself
are of the opinion that the
question of validity of said
Proclamation has not been
properly raised before the
Court, which, accordingly,
should not pass upon such
question.
b. Justice Barredo holds that the
issue on the constitutionality of
Proclamation No. 1102 has been
submitted to and should be
determined by the Court, and
that the "purported ratification
of the Proposed Constitution ...
based on the referendum
among Citizens' Assemblies falls
short of being in strict
conformity with the
requirements of Article XV of
the 1935 Constitution," but that
such unfortunate drawback
notwithstanding, "considering
all other related relevant
circumstances, ... the new
Constitution is legally
recognizable and should be
recognized as legitimately in
force."
c. Justice Zaldivar maintains
unqualifiedly that the Proposed
Constitution has not been
ratified in accordance with
Article XV of the 1935
Constitution, and that,
accordingly, it has no force and
effect whatsoever.
d. Justice Antonio feels "that the
Court is not competent to act"
on the issue whether the
Proposed Constitution has been
ratified by the people or not, "in
the absence of any judicially
discoverable and manageable
standards," since the issue
"poses a question of fact.
7. On the question whether or not these cases
should be dismissed, Justices Makalintal, Castro,
Barredo, Makasiar, Antonio and Esguerra voted in
the affirmative, for the reasons set forth in their
respective opinions. Justices Fernando,
Teehankee, and the writer similarly voted, except
as regards Case No. L-35948 as to which they
voted to grant to the petitioners therein a
reasonable period of time within which to file
appropriate pleadings should they wish to contest
the legality of Presidential Proclamation No. 1102.
Justice Zaldivar favors the granting of said period
to the petitioners in said Case No. L-35948 for the
aforementioned purpose, but he believes, in
effect, that the Court should go farther and
decide on the merits everyone of the cases under
consideration.
Accordingly, the Court — acting in conformity with the position
taken by six (6) of its members,1 with three (3) members
dissenting,2 with respect to G.R. No. L-35948, only and another
member3 dissenting, as regards all of the cases dismissed the same,
without special pronouncement as to costs.
Page 8 of 158
The Present Cases
Prior thereto, or on January 20, 1973, Josue Javellana filed Case
G.R. No. L-36142 against the Executive Secretary and the
Secretaries of National Defense, Justice and Finance, to restrain
said respondents "and their subordinates or agents from
implementing any of the provisions of the propose Constitution not
found in the present Constitution" — referring to that of 1935. The
petition therein, filed by Josue Javellana, as a "Filipino citizen, and a
qualified and registered voter" and as "a class suit, for himself, and
in behalf of all citizens and voters similarly situated," was amended
on or about January 24, 1973. After reciting in substance the facts
set forth in the decision in the plebiscite cases, Javellana alleged
that the President had announced "the immediate implementation
of the New Constitution, thru his Cabinet, respondents including,"
and that the latter "are acting without, or in excess of jurisdiction in
implementing the said proposed Constitution" upon the ground:
"that the President, as Commander-in-Chief of the Armed Forces of
the Philippines, is without authority to create the Citizens
Assemblies"; that the same "are without power to approve the
proposed Constitution ..."; "that the President is without power to
proclaim the ratification by the Filipino people of the proposed
Constitution"; and "that the election held to ratify the proposed
Constitution was not a free election, hence null and void."
Similar actions were filed, on January 23, 1973, by Vidal Tan, J.
Antonio Araneta, Alejandro Roces, Manuel Crudo, Antonio U.
Miranda, Emilio de Peralta and Lorenzo M. Tañada, against the
Executive Secretary, the Secretaries of Finance, Justice, Land
Reform, and National Defense, the Auditor General, the Budget
Commissioner, the Chairman of the Presidential Commission on
Reorganization, the Treasurer of the Philippines, the Commission
on Elections and the Commissioner of Civil Service4 on February 3,
1973, by Eddie Monteclaro, personally and as President of the
National Press Club of the Philippines, against the Executive
Secretary, the Secretary of Public Information, the Auditor General,
the Budget Commissioner and the National Treasurer 5 and on
February 12, 1973, by Napoleon V. Dilag, Alfredo Salapantan, Jr.,
Leonardo Asodisen, Jr. and Raul M. Gonzales, 6 against the Executive
Secretary, the Secretary of National Defense, the Budget
Commissioner and the Auditor General.
Likewise, on January 23, 1973, Gerardo Roxas, Ambrosio Padilla,
Jovito R. Salonga, Salvador H. Laurel,7 Ramon V. Mitra, Jr. and Eva

Estrada-Kalaw, the first as "duly elected Senator and Minority Floor
Leader of the Senate," and others as "duly elected members"
thereof, filed Case G.R. No. L-36165, against the Executive
Secretary, the Secretary National Defense, the Chief of Staff of the
Armed Forces of the Philippines, the Secretary of General Services,
the President and the President Pro Tempore of the Senate. In their
petition — as amended on January 26, 1973 — petitioners Gerardo
Roxas, et al. allege, inter alia, that the term of office of three of the
aforementioned petitioners8 would expire on December 31, 1975,
and that of the others9 on December 31, 1977; that pursuant to our
1935 Constitution, "which is still in force Congress of the Philippines
"must convene for its 8th Session on Monday, January 22, 1973, at
10:00 A.M., which is regular customary hour of its opening session";
that "on said day, from 10:00 A.M. up to the afternoon," said
petitioner "along with their other colleagues, were unlawfully
prevented from using the Senate Session Hall, the same having
been closed by the authorities in physical possession and control
the Legislative Building"; that "(a)t about 5:00 to 6:00 P.M. the said
day, the premises of the entire Legislative Building were ordered
cleared by the same authorities, and no one was allowed to enter
and have access to said premises"; that "(r)espondent Senate
President Gil J. Puyat and, in his absence, respondent President Pro
Tempore Jose Roy we asked by petitioning Senators to perform
their duties under the law and the Rules of the Senate, but
unlawfully refrained and continue to refrain from doing so"; that
the petitioners ready and willing to perform their duties as duly
elected members of the Senate of the Philippines," but respondent
Secretary of National Defense, Executive Secretary and Chief of
Staff, "through their agents and representatives, are preventing
petitioners from performing their duties as duly elected Senators of
the Philippines"; that "the Senate premise in the Congress of the
Philippines Building ... are occupied by and are under the physical
control of the elements military organizations under the direction
of said respondents"; that, as per "official reports, the Department
of General Services ... is now the civilian agency in custody of the
premises of the Legislative Building"; that respondents "have
unlawfully excluded and prevented, and continue to so exclude and
prevent" the petitioners "from the performance of their sworn
duties, invoking the alleged approval of the 1972 (1973)
Constitution of the Philippines by action of the so-called Citizens'
Assemblies on January 10, 1973 to January 15, 1973, as stated in
and by virtue of Proclamation No. 1102 signed and issued by the
President of the Philippines"; that "the alleged creation of the
Citizens' Assemblies as instrumentalities for the ratification of the
Constitution of the Republic of the Philippines" is inherently illegal
and palpably unconstitutional; that respondents Senate President
and Senate President Pro Tempore "have unlawfully refrained and
continue to refrain from and/or unlawfully neglected and continue
to neglect the performance of their duties and functions as such
officers under the law and the Rules of the Senate" quoted in the
petition; that because of events supervening the institution of the
plebiscite cases, to which reference has been made in the
preceding pages, the Supreme Court dismissed said cases on
January 22, 1973, by a majority vote, upon the ground that the
petitions therein had become moot and academic; that the alleged
ratification of the 1972 (1973) Constitution "is illegal,
unconstitutional and void and ... can not have superseded and
revoked the 1935 Constitution," for the reasons specified in the
petition as amended; that, by acting as they did, the respondents
and their "agents, representatives and subordinates ...have
excluded the petitioners from an office to which" they "are lawfully
entitled"; that "respondents Gil J. Puyat and Jose Roy have
unlawfully refrained from convening the Senate for its 8th session,
assuming general jurisdiction over the Session Hall and the
premises of the Senate and ... continue such inaction up to this
time and ... a writ of mandamus is warranted in order to compel
them to comply with the duties and functions specifically enjoined
by law"; and that "against the above mentioned unlawful acts of
the respondents, the petitioners have no appeal nor other speedy
and adequate remedy in the ordinary course of law except by
invoking the equitable remedies of mandamus and prohibition with
the provisional remedy of preliminary mandatory injunction."
Premised upon the foregoing allegations, said petitioners prayed
that, "pending hearing on the merits, a writ of preliminary
mandatory injunction be issued ordering respondents Executive
Secretary, the Secretary of National Defense, the Chief of Staff of
the Armed Forces of the Philippines, and the ... Secretary of General
Service, as well as all their agents, representatives and subordinates
to vacate the premises of the Senate of the Philippines and to
deliver physical possession of the same to the President of the
Senate or his authorized representative"; and that hearing,
judgment be rendered declaring null and Proclamation No. 1102 ...
and any order, decree, proclamation having the same import and
objective, issuing writs of prohibition and mandamus, as prayed for
against above-mentioned respondents, and making the writ
injunction permanent; and that a writ of mandamus be issued
against the respondents Gil J. Puyat and Jose Roy directing them to
Page 9 of 158
comply with their duties and functions as President and President
Pro Tempore, respectively, of the Senate of Philippines, as provided
by law and the Rules of the Senate."
Required to comment on the above-mentioned petitions and/or
amended petitions, respondents filed, with the leave Court first had
and obtained, a consolidated comment on said petitions and/or
amended petitions, alleging that the same ought to have been
dismissed outright; controverting petitioners' allegations
concerning the alleged lack impairment of the freedom of the 1971
Constitution Convention to approve the proposed Constitution, its
alleged lack of authority to incorporate certain contested provisions
thereof, the alleged lack of authority of the President to create and
establish Citizens' Assemblies "for the purpose submitting to them
the matter of ratification of the new Constitution," the alleged
"improper or inadequate submiss of the proposed constitution,"
the "procedure for ratification adopted ... through the Citizens
Assemblies"; a maintaining that: 1) "(t)he Court is without
jurisdiction to act on these petitions"; 2) the questions raised
therein are "political in character and therefore nonjusticiable"; 3)
"there substantial compliance with Article XV of the 1
Constitution"; 4) "(t)he Constitution was properly submitted the
people in a free, orderly and honest election; 5) "Proclamation No.
1102, certifying the results of the election, is conclusive upon the
courts"; and 6) "(t)he amending process outlined in Article XV of the
1935 Constitution is not exclusive of other modes of amendment."
Respondents Puyat and Roy, in said Case G.R. No. L-36165, filed
their separate comment therein, alleging that "(t)he subject
matter" of said case "is a highly political question which, under the
circumstances, this ...Court would not be in a position to act upon
judicially," and that, in view of the opinions expressed by three
members of this Court in its decision in the plebiscite cases, in
effect upholding the validity of Proclamation No. 1102, "further
proceedings in this case may only be an academic exercise in
futility."
On February 5, 1973, the Court issued a resolution requiring
respondents in L-36236 to comment on the petition therein not
later than Saturday, February 10, 1973, and setting the case for
hearing on February 12, 1973, at 9:30 a.m. By resolution dated
February 7, 1973, this Court resolved to consider the comments of
the respondents in cases G.R. Nos. L-36142, L-36164, and L-36165,
as motions to dismiss the petitions therein, and to set said cases for

hearing on the same date and time as L-36236. On that date, the
parties in G.R. No. L-36283 10 agreed that the same be, likewise,
heard, as it was, in fact, heard jointly with the aforementioned
cases G.R. Nos. L-36142, L-36164, L-36165 and L-36236. The
hearing, which began on February 12, 1973, shortly after 9:30 a.m.,
was continued not only that afternoon, but, also, on February 13,
14, 15 and 16, morning and afternoon, after which the parties were
granted up to February 24, 1973, noon, within which to submit
their notes of oral arguments and additional arguments, as well as
the documents required of them or whose presentation was
reserved by them. The same resolution granted the parties until
March 1, 1973, to reply to the notes filed by their respective
opponents. Counsel for the petitioners in G.R. Nos. L-36164 and L-
36165 filed their aforementioned notes on February 24, 1973, on
which date the Solicitor General sought an extension of time up to
March 3, 1973, within which to file his notes, which was granted,
with the understanding that said notes shall include his reply to the
notes already filed by the petitioners in G.R. Nos. L-36164 a L-
36165. Counsel for the petitioners, likewise, moved and were
granted an extension of time, to expire on March 10, 1973, within
which to file, as they did, their notes in reply to those submitted by
the Solicitor General on March 3, 1973. On March 21, 1973,
petitioners in L-36165 filed a "Manifestation a Supplemental
Rejoinder," whereas the Office of the Solicitor General submitted in
all these cases a "Rejoinder Petitioners' Replies."
After deliberating on these cases, the members of the Court agreed
that each would write his own opinion and serve a copy thereof on
his colleagues, and this they did. Subsequently, the Court discussed
said opinions and votes were cast thereon. Such individual opinions
are appended hereto.
Accordingly, the writer will first express his person opinion on the
issues before the Court. After the exposition his aforesaid opinion,
the writer will make, concurrently with his colleagues in the Court,
a resume of summary of the votes cast by them in these cases.
Writer's Personal Opinion
I.
Alleged academic futility of further proceedings in G.R. L-36165.
This defense or theory, set up by counsel for respondents Gil J.
Puyat and Jose Roy in G.R. No. L-36165, and, also, by the Solicitor
General, is predicated upon the fact that, in Our decision in the
plebiscite cases, Mr. Justice Barredo had expressed the view that
the 1935 Constitution had "pro tanto passed into history" and
"been legitimately supplanted by the Constitution now in force by
virtue of Proclamation No. 1102 ..."; that Mr. Justice Antonio did
not feel "that this Court competent to act" in said cases "in the
absence of any judicially discoverable and manageable standards"
and because "the access to relevant information is insufficient to
assure the correct determination of the issue," apart from the
circumstance that "the new constitution has been promulgated and
great interests have already arisen under it" and that the political
organ of the Government has recognized its provisions; whereas,
Mr. Justice Esguerra had postulated that "(w)ithout any competent
evidence ... about the circumstances attending the holding" of the
"referendum or plebiscite" thru the Citizens' Assemblies, he
"cannot say that it was not lawfully held" and that, accordingly,
he assumed "that what the proclamation (No. 1102) says on its face
is true and until overcome by satisfactory evidence" he could not
"subscribe to the claim that such plebiscite was not held
accordingly"; and that he accepted "as a fait accompli that the
Constitution adopted (by the 1971 Constitutional Convention) on
November 30, 1972, has been duly ratified.
Counsel for respondents Gil J. Puyat and Jose Roy goes on to say
that, under these circumstances, "it seems remote or improbable
that the necessary eight (8) votes under the 1935 Constitution, and
much less the ten (10) votes required by the 1972 (1973)
Constitution, can be obtained for the relief sought in the Amended
Petition" in G.R. No.
L-36165.
I am unable to share this view. To begin with, Mr. Justice Barredo
announced publicly, in open court, during the hearing of these
cases, that he was and is willing to be convinced that his
aforementioned opinion in the plebiscite cases should be
reconsidered and changed. In effect, he thus declared that he had
an open mind in connection with the cases at bar, and that in
deciding the same he would not necessarily adhere to said opinion
if the petitioners herein succeeded in convincing him that their
view should be sustained.
Page 10 of 158
Secondly, counsel for the aforesaid respondents had apparently
assumed that, under the 1935 Constitution, eight (8) votes are
necessary to declare invalid the contested Proclamation No. 1102. I
do not believe that this assumption is borne out by any provision of
said Constitution. Section 10 of Article VIII thereof reads:
All cases involving the constitutionality of a treaty
or law shall be heard and decided by the Supreme
Court in banc, and no treaty or law may be
declared unconstitutional without the
concurrence of two thirds of all the members of
the Court.
Pursuant to this section, the concurrence of two-thirds of all the
Members of the Supreme Court is required only to declare "treaty
or law" unconstitutional. Construing said provision, in a resolution
dated September 16, 1949, then Chief Justice Moran, voicing
the unanimous view of the Members of this Court, postulated:
... There is nothing either in the Constitution or in
the Judiciary Act requiring the vote of eight
Justices to nullify a rule or regulation or an
executive order issued by the President. It is very
significant that in the previous drafts of section
10, Article VIII of the Constitution, "executive
order" and "regulation" were included among
those that required for their nullification the vote
of two-thirds of all the members of the Court. But
"executive order" and "regulation" were
later deleted from the final draft (Aruego, The
Framing of the Philippine Constitution, Vol. I, pp.
495, 496), and thus a mere majority of six
members of this Court is enough to nullify them. 11
The distinction is not without reasonable foundation. The two
thirds vote (eight [8] votes) requirement, indeed, was made to
apply only to treaty and law, because, in these cases, the
participation of the two other departments of the government —
the Executive and the Legislative — is present, which circumstance
is absent in the case of rules, regulations and executive orders.
Indeed, a law (statute) passed by Congress is subject to the
approval or veto of the President, whose disapproval cannot be
overridden except by the vote of two-thirds (2/3) of all members of

12
each House of Congress. A treaty is entered into by the President
with the concurrence of the Senate, 13 which is not required in the
case of rules, regulations or executive orders which are exclusive
acts of the President. Hence, to nullify the same, a lesser number of
votes is necessary in the Supreme Court than that required to
invalidate a law or treaty.
Although the foregoing refers to rules, regulations and executive
orders issued by the President, the dictum applies with equal force
to executive proclamation, like said Proclamation No. 1102,
inasmuch as the authority to issue the same is governed by section
63 of the Revised Administrative Code, which provides:
Administrative acts and commands of the
(Governor-General) President of the Philippines
touching the organization or mode of operation
of the Government or rearranging or readjusting
any of the districts, divisions, parts or ports of the
(Philippine Islands) Philippines and all acts and
commands governing the general performance of
duties by public employees or disposing of issues
of general concern shall be made effective in
executive orders.
Executive orders fixing the dates when specific
laws, resolutions, or orders are to have or cease
to (have) effect and any information concerning
matters of public moment determined by law,
resolution, or executive orders, may be
promulgated in an executive proclamation, with
all the force of an executive order. 14
In fact, while executive order embody administrative acts or
commands of the President, executive proclamations are mainly
informative and declaratory in character, and so does counsel for
respondents Gil J. Puyat and Jose Roy maintain in G.R. No.
L-36165. 15 As consequence, an executive proclamation has no
more than "the force of an executive order," so that, for the
Supreme Court to declare such proclamation unconstitutional,
under the 1935 Constitution, the same number of votes needed to
invalidate an executive order, rule or regulation — namely, six (6)
votes — would suffice.
As regards the applicability of the provisions of the proposed new
Constitution, approved by the 1971 Constitutional Convention, in
the determination of the question whether or not it is now in force,
it is obvious that such question depends upon whether or not the
said new Constitution has been ratified in accordance with the
requirements of the 1935 Constitution, upon the authority of which
said Constitutional Convention was called and approved the
proposed Constitution. It is well settled that the matter of
ratification of an amendment to the Constitution should be settled
by applying the provisions of the Constitution in force at the time of
the alleged ratification, or the old Constitution. 16
II
Does the issue on the validity of Proclamation No. 1102 partake of
the nature of a political, and, hence, non-justiciable question?
The Solicitor General maintains in his comment the affirmative view
and this is his main defense. In support thereof, he alleges that
"petitioners would have this Court declare as invalid the New
Constitution of the Republic" from which — he claims — "this Court
now derives its authority"; that "nearly 15 million of our body
politic from the age of 15 years have mandated this Constitution to
be the New Constitution and the prospect of unsettling acts done in
reliance on it caution against interposition of the power of judicial
review"; that "in the case of the New Constitution, the government
has been recognized in accordance with the New Constitution";
that "the country's foreign relations are now being conducted in
accordance with the new charter"; that "foreign governments have
taken note of it"; that the "plebiscite cases" are "not precedents for
holding questions regarding proposal and ratification justiciable";
and that "to abstain from judgment on the ultimate issue of
constitutionality is not to abdicate duty."
At the outset, it is obvious to me that We are not being asked to
"declare" the new Constitution invalid. What petitioners dispute is
the theory that it has been validly ratified by the people, especially
that they have done so in accordance with Article XV of the 1935
Constitution. The petitioners maintain that the conclusion reached
by the Chief Executive in the dispositive portion of Proclamation
No. 1102 is not borne out by the whereases preceding the same, as
the predicates from which said conclusion was drawn; that the
plebiscite or "election" required in said Article XV has not been
Page 11 of 158
held; that the Chief Executive has no authority, under the 1935
Constitution, to dispensewith said election or plebiscite; that the
proceedings before the Citizens' Assemblies did not constitute and
may not be considered as such plebiscite; that the facts of record
abundantly show that the aforementioned Assemblies could not
have been held throughout the Philippines from January 10 to
January 15, 1973; and that, in any event, the proceedings in said
Assemblies are null and void as an alleged ratification of the new
Constitution proposed by the 1971 Constitutional Convention, not
only because of the circumstances under which said Assemblies had
been created and held, but, also, because persons disqualified to
vote under Article V of the Constitution were allowed to participate
therein, because the provisions of our Election Code were not
observed in said Assemblies, because the same were not held
under the supervision of the Commission on Elections, in violation
of section 2 of Article X of the 1935 Constitution, and because the
existence of Martial Law and General Order No. 20, withdrawing or
suspending the limited freedom to discuss the merits and demerits
of said proposed Constitution, impaired the people's freedom in
voting thereon, particularly a viva voce, as it was done in many
instances, as well as their ability to have a reasonable knowledge of
the contents of the document on which they were allegedly called
upon to express their views.
Referring now more specifically to the issue on whether the new
Constitution proposed by the 1971 Constitutional Convention has
been ratified in accordance with the provisions of Article XV of the
1935 Constitution is a political question or not, I do not hesitate to
state that the answer must be in the negative. Indeed, such is the
position taken by this Court, 17 in an endless line of decisions, too
long to leave any room for possible doubt that said issue is
inherently and essentially justiciable. Such, also, has been the
consistent position of the courts of the United States of America,
whose decisions have a persuasive effect in this jurisdiction, our
constitutional system in the 1935 Constitution being patterned
after that of the United States. Besides, no plausible reason has, to
my mind, been advanced to warrant a departure from said position,
consistently with the form of government established under said
Constitution..
Thus, in the aforementioned plebiscite cases, 18 We rejected the
theory of the respondents therein that the question whether
Presidential Decree No. 73 calling a plebiscite to be held on January
15, 1973, for the ratification or rejection of the proposed new

Constitution, was valid or not, was not a proper subject of judicial
inquiry because, they claimed, it partook of a political nature, and
We unanimously declared that the issue was a justiciable one. With
identical unanimity, We overruled the respondents' contention in
the 1971 habeas corpus cases, 19 questioning Our authority to
determine the constitutional sufficiency of the factual bases of the
Presidential proclamation suspending the privilege of the writ
of habeas corpus on August 21, 1971, despite the opposite view
taken by this Court in Barcelona v. Baker 20 and Montenegro v.
Castañeda, 21 insofar as it adhered to the former case, which view
We, accordingly, abandoned and refused to apply. For the same
reason, We did not apply and expressly modified, in Gonzales v.
Commission on Elections, 22 the political-question theory adopted
in Mabanag v. Lopez Vito. 23 Hence, respondents herein urge Us to
reconsider the action thus taken by the Court and to revert to and
follow the views expressed in Barcelon v. Baker and Mabanag v.
Lopez Vito. 24
The reasons adduced in support thereof are, however, substantially
the same as those given in support of the political-question theory
advanced in said habeas corpus and plebiscite cases, which were
carefully considered by this Court and found by it to be legally
unsound and constitutionally untenable. As a consequence, Our
decision in the aforementioned habeas corpus cases partakes of the
nature and effect of a stare decisis, which gained added weight by
its virtual reiteration in the plebiscite cases.
The reason why the issue under consideration and other issues of
similar character are justiciable, not political, is plain and simple.
One of the principal bases of the non-justiciability of so-called
political questions is the principle of separation of powers —
characteristic of the Presidential system of government — the
functions of which are classified or divided, by reason of their
nature, into three (3) categories, namely: 1) those involving the
making of laws, which are allocated to the legislative department;
2) those concerned mainly with the enforcement of such laws and
of judicial decisions applying and/or interpreting the same, which
belong to the executive department; and 3) those dealing with the
settlement of disputes, controversies or conflicts involving rights,
duties or prerogatives that are legally demandable and enforceable,
which are apportioned to courts of justice. Within its own sphere —
but only within such sphere — each department is supreme and
independent of the others, and each is devoid of authority, not only
to encroach upon the powers or field of action assigned to any of
the other departments, but, also, to inquire into or pass upon the
advisability or wisdom of the acts performed, measures taken or
decisions made by the other departments — provided that such
acts, measures or decisions are within the area allocated thereto by
the Constitution. 25
This principle of separation of powers under the presidential
system goes hand in hand with the system of checks and balances,
under which each department is vested by the Fundamental Law
with some powers to forestall, restrain or arrest a possible or actual
misuse or abuse of powers by the other departments. Hence, the
appointing power of the Executive, his pardoning power, his veto
power, his authority to call the Legislature or Congress to special
sessions and even to prescribe or limit the object or objects of
legislation that may be taken up in such sessions, etc. Conversely,
Congress or an agency or arm thereof — such as the commission on
Appointments — may approve or disapprove some appointments
made by the President. It, also, has the power of appropriation, to
"define, prescribe, and apportion the jurisdiction of the various
courts," as well as that of impeachment. Upon the other hand,
under the judicial power vested by the Constitution, the "Supreme
Court and ... such inferior courts as may be established by law,"
may settle or decide with finality, not only justiciable controversies
between private individuals or entities, but, also, disputes or
conflicts between a private individual or entity, on the one hand,
and an officer or branch of the government, on the other, or
between two (2) officers or branches of service, when the latter
officer or branch is charged with acting without jurisdiction or in
excess thereof or in violation of law. And so, when a power vested
in said officer or branch of the government
is absolute or unqualified, the acts in the exercise of such power are
said to be political in nature, and, consequently, non-justiciable or
beyond judicial review. Otherwise, courts of justice would be
arrogating upon themselves a power conferred by the Constitution
upon another branch of the service to the exclusion of the others.
Hence, in Tañada v. Cuenco, 26 this Court quoted with approval
from In re McConaughy, 27 the following:
"At the threshold of the case we are met with the
assertion that the questions involved are political,
and not judicial. If this is correct, the court has no
jurisdiction as the certificate of the state
canvassing board would then be final, regardless
of the actual vote upon the amendment. The
Page 12 of 158
question thus raised is a fundamental one; but it
has been so often decided contrary to the view
contended for by the Attorney General that it
would seem to be finally settled.
xxx xxx xxx
"... What is generally meant, when it is said that a
question is political, and not judicial, is that it is a
matter which is to be exercised by the people in
their primary political capacity, or that it has been
specifically delegated to some other department
or particular officer of the government, with
discretionary power to act. See State vs.
Cunningham, 81 Wis. 497, N.W. 724, 15 L.R.A.
561; In re Gunn, 50 Kan. 155; 32 Pac. 470, 948, 19
L.R.A. 519; Green vs. Mills, 69 Fed. 852, 16 C.C.A.
516, 30 L.R.A. 90; Fletcher vs. Tuttle 151 Ill. 41, 37
N.E. 683, 25 L.R.A. 143, 42 Am. St. Rep. 220. Thus
the Legislature may in its discretion determine
whether it will pass law or submit a proposed
constitutional amendment to the people. The
courts have no judicial control over such matters,
not merely because they involve political
questions, but because they are matters which
the people have by the Constitution delegated to
the Legislature. The Governor may exercise the
powers delegated him, free from judicial
control, so long as he observes the laws act within
the limits of the power conferred.
His discretionary acts cannot be controllable, not
primarily because they are of a politics nature,
but because the Constitution and laws have
placed the particular matter under his
control. But every officer under constitutional
government must act accordingly to law and
subject its restrictions, and every departure
therefrom or disregard thereof must subject him
to that restraining and controlling power of the
people, acting through the agency of the judiciary;
for it must be remembered that the people act
through courts, as well as through the executive
or the Legislature. One department is just as
representative as the other, and the judiciary is

the department which is charged with the special
duty of determining the limitations which the law
places upon all official action. The recognition of
this principle, unknown except in Great Britain
and America, is necessary, to "the end that the
government may be one of laws and not of men"
— words which Webster said were the
greatest contained in any written constitutional
document." (Emphasis supplied.)
and, in an attempt to describe the nature of a political question in
terms, it was hoped, understandable to the laymen, We added that
"... the term "political question" connotes, in legal parlance, what it
means in ordinary parlance, namely, a question of policy" in
matters concerning the government of a State, as a body politic. "In
other words, in the language of Corpus Juris Secundum (supra), it
refers to "those questions which, under the Constitution, are to
be decided by the people in their sovereign capacity, or in regard to
which full discretionary authority has been delegated to the
Legislature or executive branch of the government." It is concerned
with issues dependent upon the wisdom, not legality, of a particular
measure."
Accordingly, when the grant of power is qualified, conditional or
subject to limitations, the issue on whether or not the prescribed
qualifications or conditions have been met, or the limitations
respected, is justiciable or non-political, the crux of the problem
being one of legality or validity of the contested act, not its wisdom.
Otherwise, said qualifications, conditions or limitations —
particularly those prescribed or imposed by the Constitution —
would be set at naught. What is more, the judicial inquiry into such
issue and the settlement thereof are the main functions of courts of
justice under the Presidential form of government adopted in our
1935 Constitution, and the system of checks and balances, one of
its basic predicates. As a consequence, We have neither the
authority nor the discretion to decline passing upon said issue, but
are under the ineluctable obligation — made particularly more
exacting and peremptory by our oath, as members of the highest
Court of the land, to support and defend the Constitution — to
settle it. This explains why, in Miller v. Johnson, 28 it was held that
courts have a "duty, rather than a power", to determine whether
another branch of the government has "kept within constitutional
limits." Not satisfied with this postulate, the court went farther and
stressed that, if the Constitution provides how it may be amended
— as it is in our 1935 Constitution — "then, unless the manner is
followed, the judiciary as the interpreter of that constitution, will
declare the amendment invalid." 29 In fact, this very Court —
speaking through Justice Laurel, an outstanding authority on
Philippine Constitutional Law, as well as one of the highly respected
and foremost leaders of the Convention that drafted the 1935
Constitution — declared, as early as July 15, 1936, that "(i)n times
of social disquietude or political excitement, the great landmarks of
the Constitution are apt to be forgotten or marred, if not entirely
obliterated. In cases of conflict, the judicial department is the only
constitutional organwhich can be called upon to determine the
proper allocation of powers between the several departments" of
the government. 30
The Solicitor General has invoked Luther v. Borden 31 in support of
his stand that the issue under consideration is non-justiciable in
nature. Neither the factual background of that case nor the action
taken therein by the Federal Supreme Court has any similarity with
or bearing on the cases under consideration.
Luther v. Borden was an action for trespass filed by Luther with the
Circuit Court of the United States against Borden and others for
having forcibly entered into Luther's house, in Rhode Island,
sometime in 1842. The defendants who were in the military service
of said former colony of England, alleged in their defense that they
had acted in obedience to the commands of a superior officer,
because Luther and others were engaged in a conspiracy to
overthrow the government by force and the state had been placed
by competent authority under Martial Law. Such authority was the
charter government of Rhode Island at the time of the Declaration
of Independence, for — unlike other states which adopted a new
Constitution upon secession from England — Rhode Island retained
its form of government under a British Charter, making only such
alterations, by acts of the Legislature, as were necessary to adapt it
to its subsequent condition as an independent state. It was under
this form of government when Rhode Island joined other American
states in the Declaration of Independence and, by subsequently
ratifying the Constitution of the United States, became a member
of the Union. In 1843, it adopted a new Constitution.
Prior thereto, however, many citizens had become dissatisfied with
the charter government. Memorials addressed by them to the
Legislature having failed to bring about the desired effect, meetings
were held and associations formed — by those who belonged to
Page 13 of 158
this segment of the population — which eventually resulted in a
convention called for the drafting of a new Constitution to be
submitted to the people for their adoption or rejection. The
convention was not authorized by any law of the existing
government. The delegates to such convention framed a new
Constitution which was submitted to the people. Upon the return
of the votes cast by them, the convention declared that said
Constitution had been adopted and ratified by a majority of the
people and became the paramount law and Constitution of Rhode
Island.
The charter government, which was supported by a large number
of citizens of the state, contested, however, the validity of said
proceedings. This notwithstanding, one Thomas W. Dorr, who had
been elected governor under the new Constitution of the rebels,
prepared to assert authority by force of arms, and many citizens
assembled to support him. Thereupon, the charter government
passed an Act declaring the state under Martial Law and adopted
measures to repel the threatened attack and subdue the rebels.
This was the state of affairs when the defendants, who were in the
military service of the charter government and were to arrest
Luther, for engaging in the support of the rebel government —
which was never able to exercise any authority in the state — broke
into his house.
Meanwhile, the charter government had taken measures to call its
own convention to revise the existing form of government.
Eventually, a new constitution was drafted by a convention held
under the authority of the charter government, and thereafter was
adopted and ratified by the people. "(T)he times and places at
which the votes were to be given, the persons who were to receive
and return them, and the qualifications of the voters having all
been previously authorized and provided for by law passed by the
charter government," the latter formally surrendered all of its
powers to the new government, established under its authority, in
May 1843, which had been in operation uninterruptedly since then.
About a year before, or in May 1842, Dorr, at the head of a military
force, had made an unsuccessful attempt to take possession of the
state arsenal in Providence, but he was repulsed, and, after an
"assemblage of some hundreds of armed men under his command
at Chepatchet in the June following, which dispersed upon
approach of the troops of the old government, no further effort
was made to establish" his government. "... until the Constitution of

1843" — adopted under the auspices of the charter government —
"went into operation, the charter government continued to assert
its authority and exercise its powers and to enforce obedience
throughout the state ... ."
Having offered to introduce evidence to prove that the constitution
of the rebels had been ratified by the majority of the people, which
the Circuit Court rejected, apart from rendering judgment for the
defendants, the plaintiff took the case for review to the Federal
Supreme Court which affirmed the action of the Circuit Court,
stating:
It is worthy of remark, however, when we are
referring to the authority of State decisions, that
the trial of Thomas W. Dorr took place after the
constitution of 1843 went into operation. The
judges who decided that case held their authority
under that constitution and it is admitted on all
hands that it was adopted by the people of the
State, and is the lawful and established
government. It is the decision, therefore, of a
State court, whose judicial authority to decide
upon the constitution and laws of Rhode Island is
not questioned by either party to this controversy,
although the government under which it acted
was framed and adopted under the sanction and
laws of the charter government.
The point, then, raised here has been already
decided by the courts of Rhode Island. The
question relates, altogether, to the constitution
and laws of that State, and the well settled rule in
this court is, that the courts of the United States
adopt and follow the decisions of the State courts
in questions which concern merely the
constitution and laws of the State.
Upon what ground could the Circuit Court of the
United States which tried this case have departed
from this rule, and disregarded and overruled the
decisions of the courts of Rhode
Island? Undoubtedly the courts of the United
States have certain powers under the
Constitution and laws of the United States which
do not belong to the State courts. But the power
of determining that a State government has been
lawfully established, which the courts of the State
disown and repudiate, is not one of them. Upon
such a question the courts of the United States are
bound to follow the decisions of the State
tribunals, and must therefore regard the charter
government as the lawful and established
government during the time of this contest. 32
It is thus apparent that the context within which the case of Luther
v. Borden was decided is basically and fundamentally different from
that of the cases at bar. To begin with, the case did not involve a
federal question, but one purely municipal in nature. Hence, the
Federal Supreme Court was "bound to follow the decisions of the
State tribunals" of Rhode Island upholding the constitution adopted
under the authority of the charter government. Whatever else was
said in that case constitutes, therefore, an obiter dictum. Besides,
no decision analogous to that rendered by the State Court of Rhode
Island exists in the cases at bar. Secondly, the states of the Union
have a measure of internal sovereignty upon which the Federal
Government may not encroach, whereas ours is a unitary form of
government, under which our local governments derive their
authority from the national government. Again, unlike our 1935
Constitution, the charter or organic law of Rhode Island
contained no provision on the manner, procedure or conditions for
its amendment.
Then, too, the case of Luther v. Borden hinged more on the
question of recognition of government, than on recognition
of constitution, and there is a fundamental difference between
these two (2) types of recognition, the first being generally
conceded to be a political question, whereas the nature of the
latter depends upon a number of factors, one of them being
whether the new Constitution has been adopted in the manner
prescribed in the Constitution in force at the time of the purported
ratification of the former, which is essentially a justiciable question.
There was, in Luther v. Borden, a conflict
between two (2) rival governments, antagonistic to each other,
which is absent in the present cases. Here, the Government
established under the 1935 Constitution is the very same
government whose Executive Department has urged the adoption
of the new or revised Constitution proposed by the 1971
Page 14 of 158
Constitutional Convention and now alleges that it has been ratified
by the people.
In short, the views expressed by the Federal Supreme Court
in Luther v. Borden, decided in 1849, on matters otherthan those
referring to its power to review decisions of a state court
concerning the constitution and government of that state, not the
Federal Constitution or Government, are manifestly neither,
controlling, nor even persuasive in the present cases, having as
the Federal Supreme Court admitted — no authority whatsoever to
pass upon such matters or to review decisions of said state court
thereon. In fact, referring to that case, the Supreme Court of
Minnessota had the following to say:
Luther v. Borden, 7 How. 1, 12 L. Ed. 581, is always
cited by those who assert that the courts have no
power to determine questions of a political
character. It is interesting historically, but it
has not the slightest application to the case at
bar. When carefully analyzed, it appears that it
merely determines that the federal courts will
accept as final and controlling a decision of the
highest court of a state upon a question of the
construction of the Constitution of the state. ... . 33
Baker v. Carr, 34 cited by respondents, involved an action to annul a
Tennessee statute apportioning the seats in the General Assembly
among the counties of the State, upon the theory that the
legislation violated the equal protection clause. A district court
dismissed the case upon the ground, among others, that the issue
was a political one, but, after a painstaking review of the
jurisprudence on the matter, the Federal Supreme
Court reversed the appealed decision and held that said issue was
justiciable and non-political, inasmuch as:"... (d)eciding whether a
matter has in any measure been committed by the Constitution
to another branch of government, or whether the action of that
branch exceeds whatever authority has been committed, is itself a
delicate exercise in constitutional interpretation, and is a
responsibility of this Court as ultimate interpreter of the
Constitution ... ."
Similarly, in Powell v. McCormack, 35 the same Court, speaking
through then Chief Justice Warren, reversed a decision of the Court

of Appeals of New York affirming that of a Federal District Court,
dismissing Powell's action for a declaratory judgment declaring
thereunder that he — whose qualifications were uncontested —
had been unlawfully excluded from the 90th Congress of the U.S.
Said dismissal was predicated upon the ground, inter alia, that the
issue was political, but the Federal Supreme Court held that it was
clearly a justiciable one.
The Supreme Court of Minnessota undertook a careful review of
American jurisprudence on the matter. Owing to the lucidity of its
appraisal thereof, We append the same to this opinion as Annex A
thereof.
After an, exhaustive analysis of the cases on this subject, the Court
concluded:
The authorities are thus practically uniform in
holding that whether a constitutional amendment
has been properly adopted according to the
requirements of an existing Constitution is a
judicial question. There can be little doubt that
the consensus of judicial opinion is to the effect
that it is the absolute dutyof the judiciary to
determine whether the Constitution has been
amended in the manner required by the
Constitution, unless a special tribunal has been
created to determine the question; and even then
many of the courts hold that the tribunal cannot
be permitted to illegally amend the organic law.
... . 36
In the light of the foregoing, and considering that Art. XV of our
1935 Constitution prescribes the method or procedure for its
amendment, it is clear to my mind that the question whether or not
the revised Constitution drafted by the 1971 Constitutional
Convention has been ratified in accordance with said Art. XV is a
justiciable one and non-political in nature, and that it is not only
subject to judicial inquiry, but, also, that it is the Court's
bounden duty to decide such question.
The Supreme Court of the United States has meaningfully
postulated that "the courts cannot reject as 'no law suit' " —
because it allegedly involves a political question — "a bona fide
controversy as to whether some action denominated
"political" exceeds constitutional authority." 37
III
Has the proposed new or revised Constitution been ratified
conformably to said Art. XV of the 1935 Constitution?
Petitioners in L-36142 maintain the negative view, upon ground: 1)
that the President "is without authority to create the Citizens'
Assemblies" through which, respondents maintain, the proposed
new Constitution has been ratified; that said Assemblies "are
without power to approve the proposed Constitution"; 3) that the
President "is without power to proclaim the ratification by the
Filipino people of the proposed Constitution"; and 4) that "the
election held (in the Citizens' Assemblies) to ratify the proposed
Constitution was not a free election, hence null and void."
Apart from substantially reiterating these grounds support of said
negative view, the petitioners in L-36164 contend: 1) that the
President "has no power to call a plebiscite for the ratification or
rejection" of the proposed new Constitution or "to appropriate
funds for the holding of the said plebiscite"; 2) that the proposed
new or revised Constitution "is vague and incomplete," as well as
"contains provisions which are beyond the powers of the 1971
Convention to enact," thereby rendering it "unfit for ... submission
the people;" 3) that "(t)he period of time between November 1972
when the 1972 draft was approved and January 11-15, 1973," when
the Citizens' Assemblies supposedly ratified said draft, "was too
short, worse still, there was practically no time for the Citizens'
Assemblies to discuss the merits of the Constitution which the
majority of them have not read a which they never knew would be
submitted to them ratification until they were asked the question
— "do you approve of the New Constitution?" during the said days
of the voting"; and that "(t)here was altogether no freedom
discussion and no opportunity to concentrate on the matter
submitted to them when the 1972 draft was supposedly submitted
to the Citizens' Assemblies for ratification."
Petitioner in L-36236 added, as arguments in support of the
negative view, that : 1) "(w)ith a government-controlled press,
there can never be a fair and proper submission of the proposed
Constitution to the people"; and 2) Proclamation No. 1102 is null
Page 15 of 158
and void "(i)nasmuch as the ratification process" prescribed "in the
1935 Constitution was not followed."
Besides adopting substantially some of the grounds relied upon by
the petitioners in the above-mentioned cases, the petitioners in L-
36283 argue that "(t)he creation of the Citizens' Assemblies as the
vehicle for the ratification of the Constitution was a deception upon
the people since the President announced the postponement of the
January 15, 1973 plebiscite to either February 19 or March 5,
1973." 38
The reasons adduced by the petitioners in L-36165 in favor of the
negative view have already been set forth earlier in this opinion.
Hence, it is unnecessary to reproduce them here. So it is, with
respect to the positions taken in L-36165 by counsel for therein
respondents Gil J. Puyat and Jose Roy — although more will be said
later about them — and by the Solicitor General, on behalf of the
other respondents in that case and the respondents in the other
cases.
1. What is the procedure prescribed by the 1935 Constitution for its
amendment?
Under section 1 of Art. XV of said Constitution, three (3) steps are
essential, namely:
1. That the amendments to the Constitution be proposed either by
Congress or by a convention called for that purpose, "by a vote of
three-fourths of all the Members of the Senate and the House of
Representatives voting separately," but "in joint session
assembled";
2. That such amendments be "submitted to the people for their
ratification" at an "election"; and
3. That such amendments be "approved by a majority of the votes
cast" in said election.
Compliance with the first requirement is virtually conceded,
although the petitioners in L-36164 question the authority of the
1971 Constitutional Convention to incorporate certain provisions
into the draft of the new or revised Constitution. The main issue in

these five (5) cases hinges, therefore, on whether or not the last
two (2) requirements have been complied with.
2. Has the contested draft of the new or revised Constitution been
submitted to the people for their ratification conformably to Art. XV
of the Constitution?
In this connection, other provisions of the 1935 Constitution
concerning "elections" must, also, be taken into account, namely,
section I of Art. V and Art. X of said Constitution. The former reads:
Section 1. Suffrage may be exercised by male
citizens of the Philippines not otherwise
disqualified by law, who are twenty-one years of
age or over and are able to read and write, and
who shall have resided in the Philippines for one
year and in the municipality wherein they
propose to vote for at least six months preceding
the election. The National Assembly shall extend
the right of suffrage to women, if in a plebiscite
which shall be held for that purpose within two
years after the adoption of this Constitution, not
less than three hundred thousand women
possessing the necessary qualifications shall vote
affirmatively on the question.
Sections 1 and 2 of Art. X of the Constitution ordain in part:
Section 1. There shall be
an independent Commission on Elections
composed of a Chairman and two other Members
to be appointed by the President with the
consent of the Commission on Appointments,
who shall hold office for a term of nine years and
may not be reappointed. ...
xxx xxx xxx
Sec. 2. The Commission on Elections shall
have exclusive charge of the enforcement and
administration of all laws relative to the conduct
of elections and shall exercise all other functions
which may be conferred upon it by law. It shall
decide, save those involving the right to
vote, all administrative questions, affecting
elections, including the determination of the
number and location of polling places, and the
appointment of election inspectors and of other
election officials. All law enforcement agencies
and instrumentalities of the Government, when so
required by the Commission, shall act as its
deputiesfor the purpose of insuring fee, orderly,
and honest elections. The decisions, orders, and
rulings of the Commission shall be subject to
review by the Supreme Court.
xxx xxx xxx 39
a. Who may vote in a plebiscite under Art. V of the
Constitution?
Petitioners maintain that section 1 of Art. V of the Constitution is a
limitation upon the exercise of the right of suffrage. They claim that
no other persons than "citizens of the Philippines not otherwise
disqualified by law, who are twenty-one years of age or over and
are able to read and write, and who shall have resided in the
Philippines for one year and in the municipality wherein they
propose to vote for at least six months preceding the election," may
exercise the right of suffrage in the Philippines. Upon the other
hand, the Solicitor General contends that said provision
merely guarantees the right of suffrage to persons possessing the
aforementioned qualifications and none of the disqualifications,
prescribed by law, and that said right may be vested by competent
authorities in persons lacking some or all of the aforementioned
qualifications, and possessing some of the aforesaid
disqualifications. In support of this view, he invokes the permissive
nature of the language — "(s)uffrage may be exercised" — used in
section 1 of Art. V of the Constitution, and the provisions of the
Revised Barrio Charter, Republic Act No. 3590, particularly sections
4 and 6 thereof, providing that citizens of the Philippines "eighteen
years of age or over," who are registered in the list of barrio
assembly members, shall be members thereof and may participate
as such in the plebiscites prescribed in said Act.
I cannot accept the Solicitor General's theory. Art. V of the
Constitution declares who may exercise the right of suffrage, so
Page 16 of 158
that those lacking the qualifications therein prescribed
may not exercise such right. This view is borne out by the records of
the Constitutional Convention that drafted the 1935 Constitution.
Indeed, section 1 of Art. V of the 1935 Constitution was largely
based on the report of the committee on suffrage of the
Convention that drafted said Constitution which report was, in turn,
"strongly influenced by the election laws then in force in the
Philippines ... ." 40 " Said committee had recommended: 1) "That
the right of suffrage should exercised only by male citizens of the
Philippines." 2) "That should be limited to those who could read
and write." 3) "That the duty to vote should be made obligatory." It
appears that the first recommendation was discussed extensively in
the Convention, and that, by way of compromise, it was eventually
agreed to include, in section 1 of Art. V of the Constitution, the
second sentence thereof imposing upon the National Assembly
established by the original Constitution — instead of the bicameral
Congress subsequently created by amendment said Constitution —
the duty to "extend the right of suffrage women, if in a plebiscite
to, be held for that purpose within two years after the adoption of
this Constitution, not less than three hundred thousand women
possessing the necessary qualifications shall vote affirmatively on
the question." 41
The third recommendation on "compulsory" voting was, also
debated upon rather extensively, after which it was rejected by the
Convention. 42 This accounts, in my opinion, for the permissive
language used in the first sentence of said Art. V. Despite some
debates on the age qualification — amendment having been
proposed to reduce the same to 18 or 20, which were rejected, and
the residence qualification, as well as the disqualifications to the
exercise of the right of suffrage — the second
recommendation limiting the right of suffrage to those who could
"read and write" was — in the language of Dr. Jose M. Aruego, one
of the Delegates to said Convention — "readily approved in the
Convention without any dissenting vote," although there was some
debate on whether the Fundamental Law should specify the
language or dialect that the voter could read and write, which was
decided in the negative. 43
What is relevant to the issue before Us is the fact that the
constitutional provision under consideration was meant to be and
is a grant or conferment of a right to persons possessing the
qualifications and none of the disqualifications therein mentioned,
which in turn, constitute a limitation of or restriction to said right,

and cannot, accordingly, be dispensed with, except by
constitutional amendment. Obviously, every such constitutional
grant or conferment of a right is necessarily a negation of the
authority of Congress or of any other branch of the Government to
deny said right to the subject of the grant — and, in this sense only,
may the same partake of the nature of a guarantee. But, this does
not imply not even remotely, that the Fundamental Law allows
Congress or anybody else to vest in those lacking the qualifications
and having the disqualifications mentioned in the Constitution the
right of suffrage.
At this juncture, it is noteworthy that the committee on suffrage
responsible for the adoption of section 1 of Art. V of the
Constitution was "strongly influenced by the election laws then in
force in the Philippines." Our first Election Law was Act 1582,
passed on January 9, 1907, which was partly amended by Acts
1669, 1709, 1726 and 1768, and incorporated into the
Administrative Code of 1916 — Act 2657 — as chapter 20 thereof,
and then in the Administrative Code of 1917 — Act 2711 — as
chapter 18 thereof, which, in turn, was amended by Act 3387,
approved on December 3, 1927. Sections 431 and 432 of said Code
of 1917, prescribing, respectively, the qualifications for and
disqualifications from voting, are quoted below. 44 In all of these
legislative acts, the provisions concerning the qualifications of
voters partook of the nature of a grant or recognition of the right of
suffrage, and, hence, of a denial thereof to those who lacked the
requisite qualification and possessed any of the statutory
disqualifications. In short, the history of section 1, Art. V of the
Constitution, shows beyond doubt than the same conferred — not
guaranteed — the authority to persons having the qualifications
prescribed therein and none of disqualifications to be specified in
ordinary laws and, necessary implication, denied such right to those
lacking any said qualifications, or having any of the aforementioned
disqualifications.
This view is further bolstered by the fact that the 1971
Constitutional Convention sought the submission to a plebiscite of
a "partial amendment" to said section 1 of Art. V of the 1935
Constitution, by reducing the voting age from twenty-one (21)
years to eighteen (18) years, which, however, did not materialize on
account of the decision of this Court in Tolentino v. Commission on
Elections, 45 granting the writs, of prohibition and injunction therein
applied for, upon the ground that, under the Constitution, all of the
amendments adopted by the Convention should be submitted in
"an election" or a single election, not separately or in several or
distinct elections, and that the proposed amendment sought to be
submitted to a plebiscite was not even a complete amendment, but
a "partial amendment" of said section 1, which could be amended
further, after its ratification, had the same taken place, so that the
aforementioned partial amendment was, for legal purposes, no
more than a provisional or temporary amendment. Said partial
amendment was predicated upon the generally accepted
contemporary construction that, under the 1935 Constitution,
persons below twenty-one (21) years of age could not exercise the
right of suffrage, without a previous amendment of the
Constitution.
Upon the other hand, the question, whether 18-year-old members
of barrio assemblies may vote in barrio assembly plebiscites is, to
say the least, a debatable one. Indeed, there seems to be a conflict
between the last paragraph of said section 6 of Rep. Act No.
3590, 46 pursuant to which the "majority vote of all the barrio
assembly members" (which include all barrio residents 18 years of
age or over, duly registered in the list of barrio assembly members)
is necessary for the approval, in an assembly plebiscite, of "any
budgetary, supplemental appropriations or special tax ordinances,"
whereas, according to the paragraph preceding the penultimate
one of said section, 47 "(a)ll duly registered barrio assembly
members qualified to vote" — who, pursuant to section 10 of the
same Act, must be citizens "of the Philippines, twenty-one years of
age or over, able to read and write," and residents the barrio
"during the six months immediately preceding election, duly
registered in the list of voters" and " otherwise disqualified ..." —
just like the provisions of present and past election codes of the
Philippines and Art. V of the 1935 Constitution — "may vote in the
plebiscite."
I believe, however, that the apparent conflict should resolved in
favor of the 21-year-old members of the assembly, not only
because this interpretation is in accord with Art. V the Constitution,
but, also, because provisions of a Constitution — particularly of a
written and rigid one, like ours generally accorded a mandatory
status — unless the intention to the contrary is manifest, which is
not so as regards said Art. V — for otherwise they would not have
been considered sufficiently important to be included in the
Fundamental Law of the land. 48 Besides, it would be illogical, if not
absurd, believe that Republic Act No. 3590 requires, for the most
important measures for which it demands — in addition to
Page 17 of 158
favorable action of the barrio council — the approval of barrio
assembly through a plebiscite, lesser qualifications than those
prescribed in dealing with ordinary measures for which such
plebiscite need not be held.
It is similarly inconceivable that those who drafted the 1935
Constitution intended section 1 of Art. V thereof to apply only to
elections of public officers, not to plebiscites for the ratification of
amendments to the Fundamental Law or revision thereof, or of an
entirely new Constitution, and permit the legislature to require
lesser qualifications for such ratification, notwithstanding the fact
that the object thereof much more important — if not
fundamental, such as the basic changes introduced in the draft of
the revised Constitution adopted by the 1971 Constitutional
Convention, which a intended to be in force permanently, or, at
least, for many decades, and to affect the way of life of the nation
— and, accordingly, demands greater experience and maturity on
the part of the electorate than that required for the election of
public officers, 49 whose average term ranges from 2 to 6 years.
It is admitted that persons 15 years of age or over, but below 21
years, regardless of whether or not they possessed the other
qualifications laid down in both the Constitution and the present
Election Code, 50 and of whether or not they are disqualified under
the provisions of said Constitution and Code, 51 or those of Republic
Act No. 3590, 52have participated and voted in the Citizens'
Assemblies that have allegedly ratified the new or revised
Constitution drafted by the 1971 Constitutional Convention.
In fact, according to the latest official data, the total number of
registered voters 21 years of age or over in the entire Philippines,
available in January 1973, was less than 12 million. Yet,
Proclamation No. 1102 states that 14,976,56 "members of all the
Barangays (Citizens Assemblies) voted for the adoption of the
proposed Constitution, as against ... 743,869 who voted for its
rejection," whereas, on the question whether or not the people still
wanted a plebiscite to be called to ratify the new Constitution, "...
14,298,814 answered that there was no need for a plebiscite and
that the vote of the Barangays (Citizens Assemblies) should be
considered as a vote in a plebiscite." In other words, it is conceded
that the number of people who allegedly voted at the Citizens'
Assemblies for exceeded the number of registered voters under the
Election Code in force in January 1973.

It is thus clear that the proceedings held in such Citizens'
Assemblies — and We have more to say on this point in subsequent
pages — were fundamentally irregular, in that persons lacking the
qualifications prescribed in section 1 of Art. V of the Constitution
were allowed to vote in said Assemblies. And, since there is no
means by which the invalid votes of those less than 21 years of age
can be separated or segregated from those of the qualified voters,
the proceedings in the Citizens' Assemblies must be considered null
and void. 53
It has been held that "(t)he power to reject an entire poll ... should
be exercised ... in a case where it is impossible to ascertain with
reasonable certainty the true vote," as where "it is impossible to
separate the legal votes from the illegal or spurious ... ." 54
In Usman v. Commission on Elections, et al., 55 We held:
Several circumstances, defying exact description
and dependent mainly on the factual milieu of the
particular controversy, have the effect of
destroying the integrity and authenticity of
disputed election returns and of avoiding
their prima facie value and character. If
satisfactorily proven, although in a summary
proceeding, such circumstances as alleged by the
affected or interested parties, stamp the election
returns with the indelible mark of falsity and
irregularity, and, consequently, of unreliability,
and justify their exclusion from the canvass.
Then, too, the 1935 Constitution requires "a majority of the votes
cast" for a proposed amendment to the Fundamental Law to be
"valid" as part thereof, and the term "votes cast" has a well-settled
meaning.
The term "votes cast" ... was held in Smith v.
Renville County Commissioners, 65 N.W. 956, 64
Minn. 16, to have been used as an equivalent of
"ballots cast." 56
The word "cast" is defined as "to deposit formally
or officially." 57
It seems to us that a vote is cast when
a ballot is deposited indicating a "choice." ... The
word "cast" means "deposit (a ballot) formally or
officially ... .
... In simple words, we would define a "vote cast"
as the exercise on a ballot of the choice of the
voter on the measure proposed. 58
In short, said Art. XV envisages — with the term "votes cast" —
choices made on ballots — not orally or by raising — by the persons
taking part in plebiscites. This is but natural and logical, for, since
the early years of the American regime, we had adopted the
Australian Ballot System, with its major characteristics,
namely, uniform official ballots prepared and furnished by the
Government and secrecy in the voting, with the advantage of
keeping records that permit judicial inquiry, when necessary, into
the accuracy of the election returns. And the 1935 Constitution has
been consistently interpreted in all plebiscites for the ratification
rejection of proposed amendments thereto, from 1935 to 1967.
Hence, the viva voce voting in the Citizens' Assemblies was and is
null and void ab initio.
b. How should the plebiscite be held? (COMELEC supervision
indispensable; essential requisites)
Just as essential as compliance with said Art. V of the 19
Constitution is that of Art. X thereof, particularly its sections 1 and
2. Indeed, section 1 provides that "(t)here shall be
an independent Commission on Elections ... ." The point to be
stressed here is the term "independent." Indeed, why was the term
used?
In the absence of said constitutional provision as to the
independence of the Commission, would it have been depends
upon either Congress or the Judiciary? The answer must be the
negative, because the functions of the Commission —
"enforcement and administration" of election laws — are neither
legislative nor judicial in nature, and, hence, beyond the field
allocated to either Congress or courts of justice. Said functions are
by their nature essentially executive, for which reason, the
Commission would be under the "control" of the President,
pursuant to section 10, paragraph (1) of Art. VII of the Constitution,
Page 18 of 158
if Art. X thereof did not explicitly declare that it (the Commission) is
an "independent" body. In other words, in amending the original
1935 Constitution, by inserting therein said Art. X, on the
Commission on Elections, the purpose was to make said
Commission independent principally of the Chief Executive.
And the reason therefor is, also, obvious. Prior to the creation of
the Commission on Elections as a constitutional organ, election
laws in the Philippines were enforced by the then Department of
the Interior, through its Executive Bureau, one of the offices under
the supervision and control of said Department. The same — like
other departments of the Executive Branch of the Government —
was, in turn, under the control of the Chief Executive, before the
adoption of the 1935 Constitution, and had been — until the
abolition of said Department, sometime ago — under the control of
the President of the Philippines, since the effectivity of said
Fundamental Law. Under the provisions thereof, the Executive
could so use his power of control over the Department of the
Interior and its Executive Bureau as to place the minority party at
such a great, if not decisive, disadvantage, as to deprive it, in effect,
of the opportunity to defeat the political party in power, and,
hence, to enable the same to perpetuate itself therein. To forestall
this possibility, the original 1935 Constitution was amended by the
establishment of the Commission on Elections as a constitutional
body independent primarily of the President of the Philippines.
The independence of the Commission was sought to be
strengthened by the long term of office of its members — nine (9)
years, except those first appointed 59 — the longest under the
Constitution, second only to that of the Auditor General 60; by
providing that they may not be removed from office except by
impeachment, placing them, in this respect, on the same plane as
the President, the Vice-President, the Justices of the Supreme Court
and the Auditor General; that they may not be reappointed; that
their salaries, "shall be neither increased nor diminished during
their term of office"; that the decisions the Commission "shall be
subject to review by the Supreme Court" only 61; that "(n)o pardon,
parole, or suspension sentence for the violation of any election law
may be granted without the favorable recommendation of the
Commission"62; and, that its chairman and members "shall not,
during the continuance in office, engage in the practice of any
profession or intervene, directly or indirectly, in the management
or control of any private enterprise which in anyway may affected
by the functions of their office; nor shall they, directly or indirectly,

be financially interested in any contract with the Government or
any subdivision or instrumentality thereof." 63 Thus, the framers of
the amendment to the original Constitution of 1935 endeavored to
do everything possible protect and insure the independence of
each member of the Commission.
With respect to the functions thereof as a body, section 2 of said
Art. X ordains that "(t)he Commission on Elections shall
have exclusive charge of the enforcement and administration all
laws relative to the conduct of elections," apart from such other
"functions which may be conferred upon it by law." It further
provides that the Commission "shall decide, save those involving
the right to vote, all administrative question affecting elections,
including the determination of the number and location of polling
places, and the appointment of election inspectors and of other
election officials." And, to forests possible conflicts or frictions
between the Commission, on one hand, and the other offices or
agencies of the executive department, on the other, said section 2
postulates that "(a)ll law enforcement agencies and
instrumentalities of the Government, when so required by the
Commission, shall act as its deputies for the purpose of insuring
free, orderly, and honest elections." Not satisfied with this, it
declares, in effect, that "(t)he decisions, orders, and ruling of the
Commission" shall not be subject to review, except by the Supreme
Court.
In accordance with the letter and spirit of said Art. X of the
Constitution, Rep. Act No. 6388, otherwise known as the Election
Code of 1971, implements the constitutional powers of the
Commission on Elections and grants additional powers thereto,
some of which are enumerated in sections 5 and 6 of said Act,
quoted below. 64 Moreover, said Act contains, inter alia, detailed
provisions regulating contributions and other (corrupt) practices;
the establishment of election precincts; the designation and
arrangement of polling places, including voting booths, to protect
the secrecy of the ballot; formation of lists of voters, the
identification and registration of voters, the proceedings therefor,
as well as for the inclusion in, or exclusion or cancellation from said
list and the publication thereof; the establishment of municipal,
provincial and files of registered voters; the composition and
appointment of board of election inspectors; the particulars of the
official ballots to be used and the precautions to be taken to insure
authenticity thereof; the procedure for the casting of votes; the
counting of votes by boards of inspectors; the rules for the
appreciation of ballots and the preparation and disposition of
election returns; the constitution and operation of municipal,
provincials and national boards of canvassers; the presentation of
the political parties and/or their candidates in each election
precinct; the proclamation of the results, including, in the case of
election of public officers, election contests; and the jurisdiction of
courts of justice in cases of violation of the provisions of said
Election Code and the penalties for such violations.
Few laws may be found with such meticulous and elaborate set of
provisions aimed at "insuring free, orderly, and honest election," as
envisaged in section 2 of Art. X of the Constitution. Yet, none of the
foregoing constitutional and statutory provisions was followed by
the so-called Barangays or Citizens' Assemblies. And no reasons
have been given, or even sought to be given therefor. In many, if
not most, instances, the election were held a viva voce, thus
depriving the electorate of the right to vote secretly — one of the
most, fundamental and critical features of our election laws from
time immemorial — particularly at a time when the same was
of utmost importance, owing to the existence of Martial Law.
In Glen v. Gnau, 65 involving the casting of many votes, openly,
without complying with the requirements of the law pertinent
thereto, it was held that the "election officers" involved "cannot be
too strongly condemned" therefor and that if they "could legally
dispense with such requirement ... they could with equal propriety
dispense with all of them, including the one that the vote shall be by
secret ballot, or even by ballot
at all ... ."
Moreover, upon the formal presentation to the Executive of the
proposed Constitution drafted by the 1971 Constitutional
Convention, or on December 1, 1972, Presidential Decree No. 73
(on the validity of which — which was contested in the plebiscite
cases, as well as in the 1972 habeas corpus cases 66 — We need not,
in the case of bar, express any opinion) was issued, calling a
plebiscite, to be held on January 15, 1973, at which the proposed
Constitution would be submitted to the people for ratification or
rejection; directing the publication of said proposed Constitution;
and declaring, inter alia, that "(t)he provision of the Election Code
of 1971, insofar as they are not inconsistent" with said decree —
excepting those "regarding right and obligations of political parties
and candidates" — "shall apply to the conduct of the plebiscite."
Indeed, section 2 of said Election Code of 1971 provides that "(a)ll
Page 19 of 158
elections of public officers except barrio officials and
plebiscites shall be conducted in the manner provided by this
Code." General Order No. 20, dated January 7, 1973, postponing
until further notice, "the plebiscite scheduled to be held on January
15, 1973," said nothing about the procedure to be followed in
plebiscite to take place at such notice, and no other order or decree
has been brought to Our attention, expressly or impliedly repealing
the provisions of Presidential Decree 73, insofar as said procedure
is concerned.
Upon the other hand, said General Order No. 20 expressly
suspended "the provisions of Section 3 of Presidential Decree No.
73 insofar as they allow free public discussion of proposed
Constitution ... temporarily suspending effects of Proclamation No.
1081 for the purposes of free open dabate on the proposed
Constitution ... ." This specific mention of the portions of the
decrees or orders or instructions suspended by General Order No.
20 necessarily implies that all other portions of said decrees, orders
or instructions — and, hence, the provisions of Presidential Decree
No. 73 outlining the procedure to be followed in the plebiscite for
ratification or rejection of the proposed Constitution — remained in
force, assuming that said Decree is valid.
It is claimed that by virtue of Presidential Decree No. 86-A — the
text of which is quoted below 67 — the Executive declared, inter
alia, that the collective views expressed in the Citizens' Assemblies
"shall be considered in the formulation of national policies or
programs and, wherever practicable, shall be translated into
concrete and specific decision"; that such Citizens' Assemblies "shall
consider vital national issues ... like the holding of the plebiscite on
the new Constitution ... and others in the future, which shall serve
as guide or basis for action or decision by the national
government"; and that the Citizens' Assemblies "shall conduct
between January 10 and 15, 1973, a referendum on important
national issues, including those specified in paragraph 2 hereof, and
submit the results thereof to the Department of Local Governments
and Community Development immediately thereafter, ... ." As in
Presidential Decree No. 86, this Decree No. 86-A does not and
cannot exclude the exercise of the constitutional supervisory power
of the Commission on Elections or its participation in the
proceedings in said Assemblies, if the same had been intended to
constitute the "election" or Plebiscite required Art. V of the 1935
Constitution. The provision of Decree No. 86-A directing the
immediate submission of the result thereof to the Department of

Local Governments Community Development is not necessarily
inconsistent with, and must be subordinate to the constitutional
power of the Commission on Elections to exercise its "exclusive
authority over the enforcement and administration of all laws to
the conduct of elections," if the proceedings in the Assemblies
would partake of the nature of an "election" or plebiscite for the
ratification or rejection of the proposed Constitution.
We are told that Presidential Decree No. 86 was further amended
by Presidential Decree No. 86-B, dated 1973, ordering "that
important national issues shall from time to time; be referred to
the Barangays (Citizens Assemblies) for resolution in accordance
with Presidential Decree No. 86-A dated January 5, 1973 and that
the initial referendum include the matter of ratification of the
Constitution by the 1971 Constitutional Convention" and that "(t)he
Secretary of the Department of Local Governments and Community
Development shall insure the implementation of this order." As in
the case of Presidential Decrees Nos. 86 and 86-A, the foregoing
directives do not necessarily exclude exercise of the powers vested
by the 1935 Constitution in the Commission on Elections, even if
the Executive had the authority to repeal Art. X of our Fundamental
Law — which he does not possess. Copy of Presidential Decree No.
86-B is appended hereto as Annex B hereof.
The point is that, such of the Barrio Assemblies as were held took
place without the intervention of the Commission on Elections, and
without complying with the provisions of the Election Code of 1971
or even of those of Presidential Decree No. 73. What is more, they
were held under the supervision of the very officers and agencies of
the Executive Department sought to be excluded therefrom by Art.
X of the 1935 Constitution. Worse still, said officers and agencies of
the 1935 Constitution would be favored thereby, owing to the
practical indefinite extension of their respective terms of office in
consequence of section 9 of the Transitory Provisions, found in Art.
XVII of the proposed Constitution, without any elections therefor.
And the procedure therein mostly followed is such that there is no
reasonable means of checking the accuracy of the returns files by
the officers who conducted said plebiscites. This is another patent
violation of Art. of the Constitution which can hardly be sanctioned.
And, since the provisions of this article form part of
the fundamental scheme set forth in the 1935 Constitution, as
amended, to insure the "free, orderly, and honest" expression of
the people's will, the aforementioned violation thereof renders null
and void the contested proceedings or alleged plebiscite in the
Citizens' Assemblies, insofar as the same are claimed to have
ratified the revised Constitution proposed by the 1971
Constitutional Convention. "... (a)ll the authorities agree that the
legal definition of an election, as well as that which is usually and
ordinarily understood by the term, is a choosing or as election by
those having a right to participate (in the selection) of those who
shall fill the offices, or of the adoption or rejection of any public
measure affecting the territory involved. 15 Cyc. 279; Lewis v.
Boynton, 25 Colo. 486, 55 Pac. 732; Saunders v. Haynes, 13 Cal.
145; Seaman v. Baughman, 82 Iowa 216, 47 N.W. 1091, 11 L.R.A.
354; State v. Hirsh, 125 Ind. 207, 24 N.E. 1062, 9 L.R.A. 170;
Bouvier's Law Dictionary. 68
IV
Has the proposed Constitution aforementioned
been approved by a majority of the people in
Citizens' Assemblies allegedly held
throughout the Philippines?
Respondents maintain the affirmative, relying upon Proclamation
No. 1102, the validity of which is precisely being contested by
petitioners herein. Respondents claim that said proclamation is
"conclusive" upon this Court, or is, at least, entitled to full faith and
credence, as an enrolled bill; that the proposed Constitution has
been, in fact, ratified, approved or adopted by the "overwhelming"
majority of the people; that Art. XV of the 1935 Constitution has
thus been "substancially" complied with; and that the Court refrain
from passing upon the validity of Proclamation No. 1102, not only
because such question is political in nature, but, also, because
should the Court invalidate the proclamation, the former would, in
effect, veto the action of the people in whom sovereignty resides
and from its power are derived.
The major flaw in this process of rationalization is that it assumes,
as a fact, the very premise on which it is predicated, and which,
moreover, is contested by the petitioners. As the Supreme Court of
Minnessota has aptly put it —
... every officer under a constitutional government
must act according to law and subject to its
restrictions, and every departure therefrom or
disregard thereof must subject him to the
Page 20 of 158
restraining and controlling of the people, acting
through the agency of the judiciary; for it must be
remembered that the people act through courts,
as well as through the executive or the
Legislature. One department is just as
representative as the other, and the judiciary is
the department which is charged with the special
duty of determining the limitations which the law
places upon all official action. ... .
Accordingly, the issue boils downs to whether or not the Executive
acted within the limits of his authority when he certified in
Proclamation No. 1102 "that the Constitution proposed by the
nineteen hundred and seventy-one (1971) Constitutional
Convention has been ratified by an overwhelming majority of all of
the votes cast by the members of all the Barangays (Citizens
Assemblies) throughout the Philippines and has thereby come into
effect."
In this connection, it is not claimed that the Chief Executive had
personal knowledge of the data he certified in said proclamation.
Moreover, Art. X of the 1935 Constitution was precisely inserted to
place beyond the Executive the power to supervise or even
exercise any authority whatsoever over "all laws relative to the
conduct of elections," and, hence, whether the elections are for the
choice or selection of public officers or for the ratification or
rejection of any proposed amendment, or revision of the
Fundamental Law, since the proceedings for the latter are, also,
referred to in said Art. XV as "elections".
The Solicitor General stated, in his argument before this Court, that
he had been informed that there was in each municipality a
municipal association of presidents of the citizens' assemblies for
each barrio of the municipality; that the president of each such
municipal association formed part of a provincial or city association
of presidents of such municipal associations; that the president of
each one of these provincial or city associations in turn formed part
of a National Association or Federation of Presidents of such
Provincial or City Associations; and that one Francisco Cruz from
Pasig, Rizal, as President of said National Association or Federation,
reported to the President of the Philippines, in the morning of
January 17, 1973, the total result of the voting in the citizens'
assemblies all over the country from January 10 to January 15,
1973. The Solicitor General further intimated that the said

municipal associations had reported the results of the citizens'
assemblies in their respective municipalities to the corresponding
Provincial Association, which, in turn, transmitted the results of the
voting in the to the Department of Local Governments and
Community Development, which tabulated the results of the voting
in the citizens' assemblies throughout the Philippines and then
turned them over to Mr. Franciso Cruz, as President or acting
President of the National Association or Federation, whereupon
Mr. Cruz, acting in a ceremonial capacity, reported said results
(tabulated by the Department of Governments and Community
Development) to the Chief Executive, who, accordingly, issued
Proclamation No. 1102.
The record shows, however, that Mr. Cruz was not even a
member of any barrio council since 1972, so that he could possibly
have been a member on January 17, 1973, of
a municipal association of presidents of barrio or ward citizens'
assemblies, much less of a Provincial, City or National Association or
Federation of Presidents of any such provincial or city associations.
Secondly, at the conclusion of the hearing of these cases February
16, 1973, and in the resolution of this Court of same date, the
Solicitor General was asked to submit, together with his notes on
his oral argument, a true copy of aforementioned report of Mr.
Cruz to the President and of "(p)roclamation, decree, instruction,
order, regulation or circular, if any, creating or directing or
authorizing creation, establishment or organization" of said
municipal, provincial and national associations, but neither a copy
of alleged report to the President, nor a copy of any
"(p)roclamation, decree, instruction, order, regulation or circular,"
has been submitted to this Court. In the absence of said report,
"(p)roclamation, decree, instruction," etc., Proclamation No. 1102 is
devoid of any factual and legalfoundation. Hence, the conclusion
set forth in the dispositive portion of said Proclamation No. 1102,
to the effect that the proposed new or revised Constitution had
been ratified by majority of the votes cast by the people, can not
possibly have any legal effect or value.
The theory that said proclamation is "conclusive upon Court is
clearly untenable. If it were, acts of the Executive and those of
Congress could not possibly be annulled or invalidated by courts of
justice. Yet, such is not the case. In fact, even a resolution of
Congress declaring that a given person has been elected President
or Vice-President of the Philippines as provided in the
69
Constitution, is not conclusive upon the courts. It is no
more than prima facie evidence of what is attested to by said
resolution. 70 If assailed directly in appropriate proceedings, such as
an election protest, if and when authorized by law, as it is in the
Philippines, the Court may receive evidence and declare, in
accordance therewith, who was duly elected to the office
involved. 71 If prior to the creation of the Presidential Electoral
Tribunal, no such protest could be filed, it was not because the
resolution of Congress declaring who had been elected President or
Vice-President was conclusive upon courts of justice, but because
there was no law permitting the filing of such protest and
declaring what court or body would hear and decide the same. So,
too, a declaration to the effect that a given amendment to the
Constitution or revised or new Constitution has been ratified by a
majority of the votes cast therefor, may be duly assailed in court
and be the object of judicial inquiry, in direct proceedings therefor
— such as the cases at bar — and the issue raised therein may and
should be decided in accordance with the evidence presented.
The case of In re McConaughy 72 is squarely in point. "As the
Constitution stood from the organization of the state" — of
Minnessota — "all taxes were required to be raised under the
system known as the 'general property tax.' Dissatisfaction with the
results of this method and the development of more scientific and
satisfactory methods of raising revenue induced the Legislature to
submit to the people an amendment to the Constitution which
provided merely that taxes shall be uniform upon the same class of
subjects. This proposed amendment was submitted at the general
election held in November, 1906, and in due time it was certified by
the state canvassing board and proclaimed by the Governor as
having been legally adopted. Acting upon the assumption that the
amendment had become a part of the Constitution, the Legislature
enacted statutes providing for a State Tax Commission and a
mortgage registry tax, and the latter statute, upon the same theory,
was held constitutional" by said Court. "The district court found
that the amendment had no in fact been adopted, and on this
appeal" the Supreme Court was "required to determine the
correctness of that conclusion."
Referring to the effect of the certification of the State Board of
Canvassers created by the Legislature and of theproclamation made
by the Governor based thereon, the Court held: "It will be noted
that this board does no more than tabulate the reports received
from the various county board and add up and certify the results.
Page 21 of 158
State v. Mason, 45 Wash. 234, 88 Pac. 126, 9 L.R.A. (U.S.) 1221. It
is settled law that the decisions of election officers, and canvassing
boards are not conclusive and that the final decision must rest with
the courts, unless the law declares that the decisions of the board
shall be final" — and there is no such law in the cases at bar. "...
The correctness of the conclusion of the state board rests upon the
correctness of the returns made by the county boards and it
is inconceivable that it was intended that this statement of result
should be final and conclusive regardless of the actual facts. The
proclamation of the Governor adds nothing in the way of
conclusiveness to the legal effect of the action of the canvassing
board. Its purpose is to formally notify the people of the state of
the result of the voting as found by the canvassing board. James on
Const. Conv. (4th Ed.) sec. 523."
In Bott v. Wartz, 73 the Court reviewed the statement of results of
the election made by the canvassing board, in order that the true
results could be judicially determined. And so did the court in Rice
v. Palmer. 74
Inasmuch as Art. X of the 1935 Constitution places under the
"exclusive" charge of the Commission on Elections, "the
enforcement and administration of all laws relative to the conduct
of elections," independently of the Executive, and there is not even
a certification by the Commission in support of the alleged results of
the citizens' assemblies relied upon in Proclamation No. 1102 —
apart from the fact that on January 17, 1973 neither the alleged
president of the Federation of Provincial or City Barangays nor the
Department of Local Governments had certified to the President
the alleged result of the citizens' assemblies all over the Philippines
— it follows necessarily that, from a constitutional and legal
viewpoint, Proclamation No. 1102 is not even prima facie evidence
of the alleged ratification of the proposed Constitution.
Referring particularly to the cases before Us, it will be noted that,
as pointed out in the discussion of the preceding topic, the new or
revised Constitution proposed by the 1971 Constitutional
Convention was not ratified in accordance with the provisions of
the 1935 Constitution. In fact, it has not even been, ratified in
accordance with said proposed Constitution, the minimum age
requirement therein for the exercise of the right of suffrage
being eighteen (18) years, apart from the fact that Art. VI of the
proposed Constitution requires "secret" voting, which was not
observed in many, if not most, Citizens' Assemblies.

Besides, both the 1935 Constitution and the proposed Constitution
require a "majority of the votes cast" in an election or plebiscite
called for the ratification of an amendment or revision of the first
Constitution or the effectivity of the proposed Constitution, and the
phrase "votes cast" has been construed to mean "votes made in
writing not orally, as it was in many Citizens' Assemblies. 75
Even counsel for Gil J. Puyat and Jose Roy, as respondents in L-
36165, asserts openly that Art. XV of the Constitution has not been
complied with, and since the alleged substantial compliance with
the requirements thereof partakes of the nature of a defense set up
by the other respondents in these cases, the burden of proving
such defense — which, if true, should be within their peculiar
knowledge — is clearly on such respondents. Accordingly, if despite
the extensive notes and documents submitted by the parties
herein, the members of the Court do not know or are not prepared
to say whether or not the majority of the people or of those who
took part in the Citizens' Assemblies have assented to the proposed
Constitution, the logical step would be to give due course to these
cases, require the respondents to file their answers, and the
plaintiffs their reply, and, thereafter, to receive the pertinent
evidence and then proceed to the determination of the issues
raised thereby. Otherwise, we would be placing upon the
petitioners the burden of disproving a defense set up by the
respondents, who have not so far established the truth of such
defense.
Even more important, and decisive, than the foregoing is the
circumstance that there is ample reason to believe that many, if not
most, of the people did not know that the Citizens' Assemblies
were, at the time they were held, plebiscites for the ratification or
rejection of the proposed Constitution. Hence, in Our decision in
the plebiscite cases, We said, inter alia:
Meanwhile, or on December 17, 1972, the
President had issued an order temporarily
suspending the effects of Proclamation No. 1081,
for the purpose of free and open debate on the
Proposed Constitution. On December 23, the
President announced the postponement of the
plebiscite for the ratification or rejection of the
Proposed Constitution. No formal action to this
effect was taken until January 7, 1973, when
General Order No. 20 was issued, directing "that
the plebiscite scheduled to be held on January 15,
1973, be postponed until further notice." Said
General Order No. 20, moreover, "suspended in
the meantime" the "order of December 17, 1972,
temporarily suspending the effects of
Proclamation No. 1081 for purposes of free and
open debate on the proposed Constitution.
In view of these events relative to the
postponement of the aforementioned plebiscite,
the Court deemed it fit to refrain, for the time
being, from deciding the aforementioned cases,
for neither the date nor the conditions under
which said plebiscite would be held were known
or announced officially. Then again, Congress was,
pursuant to the 1935 Constitution, scheduled to
meet in regular session on January 22, 1973, and
since the main objection to Presidential Decree
No. 73 was that the President does not have the
legislative authority to call a plebiscite and
appropriate funds therefor, which Congress
unquestionably could do, particularly in view of
the formal postponement of the plebiscite by the
President — reportedly after consultation with,
among others, the leaders of Congress and the
Commission on Elections — the Court deemed it
more imperative to defer its final action on these
cases.
And, apparently, the parties in said cases entertained the same
belief, for, on December 23, 1972 — four (4) days after the last
hearing of said cases 76 — the President announced
the postponement of the plebiscite scheduled by Presidential
Decree No. 73 to be held on January 15, 1973, after consultation
with the Commission on Elections and the leaders of Congress,
owing to doubts on the sufficiency of the time available to translate
the proposed Constitution into some local dialects and to comply
with some pre-electoral requirements, as well as to afford the
people a reasonable opportunity to be posted on the contents and
implications of said transcendental document. On January 7, 1973,
General Order No. 20 was issued formally, postponing said
plebiscite "until further notice." How can said postponement be
reconciled with the theory that the proceedings in the Citizens'
Assemblies scheduled to be held from January 10 to January 15,
Page 22 of 158
1973, were "plebiscites," in effect, accelerated, according to the
theory of the Solicitor General, for the ratification of the proposed
Constitution? If said Assemblies were meant to be the plebiscites or
elections envisaged in Art. XV of the Constitution, what, then, was
the "plebiscite" postponed by General Order No. 20? Under these
circumstances, it was only reasonable for the people who attended
such assemblies to believe that the same were not an "election" or
plebiscite for the ratification or adoption of said proposed
Constitution.
And, this belief is further bolstered up by the questions
propounded in the Citizens' Assemblies, namely:
[1] Do you like the New Society?
[2] Do you like the reforms under martial law?
[3] Do you like Congress again to hold sessions?
[4] Do you like the plebiscite to be held later?
[5] Do you like the way President Marcos is
running the affairs of the government? [Bulletin
Today, January 10, 1973; emphasis an additional
question.]
[6] Do you approve of the citizens assemblies as
the base of popular government to decide issues
of national interests?
[7] Do you approve of the new Constitution?
[8] Do you want a plebiscite to be called to ratify
the new Constitution?
[9] Do you want the elections to be held in
November, 1973 in accordance with the
provisions of the 1935 Constitution?
[10] If the elections would not be held, when do
you want the next elections to be called?

[11] Do you want martial law to continue?
[Bulletin Today, January 11, 1973]
To begin with, questions nos. 1, 2, 3, 4, 5, 6, 9, 10 and 11 are not
proper in a plebiscite for the ratification of a proposed Constitution
or of a proposed amendment thereto. Secondly, neither is the
language of question No. 7 — "Do you approve the new
Constitution?" One approves "of" the act of another which
does not need such approval for the effectivity of said act, which
the first person, however, finds to be good, wise satisfactory. The
approval of the majority of the votes cast in plebiscite is,
however, essential for an amendment to the Constitution to be
valid as part thereof. Thirdly, if the proceedings in the Citizens'
Assemblies constituted a plebiscite question No. 8 would have been
unnecessary and improper, regardless of whether question No. 7
were answered affirmatively or negatively. If the majority of the
answers to question No. 7 were in the affirmative, the proposed
Constitution would have become effective and no other plebiscite
could be held thereafter in connection therewith, even if the
majority of the answers to question No. 8 were, also, in the
affirmative. If the majority of the answers to question No. 7 were in
the negative, neither may another plebiscite be held, even if the
majority of the answers to question No. 8 were in the affirmative.
In either case, not more than one plebiscite could be held for the
ratification or rejection of the proposed Constitution. In short, the
insertion of said two (2) questions — apart from the other
questions adverted to above — indicates strongly that the
proceedings therein did not partake of the nature of a plebiscite or
election for the ratification or rejection of the proposed
Constitution.
Indeed, I can not, in good conscience, declare that the proposed
Constitution has been approved or adopted by the people in the
citizens' assemblies all over the Philippines, when it is, to my mind,
a matter of judicial knowledge that there have been no such
citizens' assemblies in many parts of Manila and suburbs, not to
say, also, in other parts of the Philippines. In a letter of Governor
Efren B. Pascual of Bataan, dated January 15, 1973, to the Chief
Executive, the former reported:
Thus, as late as January 10, 1973, the Bataan officials had
... This report includes a resumee (sic) of the
to suspend "all scheduled Citizens' Assembly meetings ..." and call
activities we undertook in effecting
all available officials "... to discuss with them the new set of
the referendum on the eleven questions you
guidelines and materials to be used ... ." Then, "on January 11 ...
wanted our people consulted on and the
Summary of Results thereof for each municipality
and for the whole province.
xxx xxx xxx
... Our initial plans and preparations, however,
dealt only on the original five questions.
Consequently, when we received an instruction on
January 10 to change the questions, we urgently
suspended all scheduled Citizens Assembly
meetings on that day and called all Mayors, Chiefs
of Offices and other government officials to
another conference to discuss with them the new
set of guidelines and materials to be used.
On January 11, ... another instruction from the top
was received to include the original five questions
among those to be discussed and asked in the
Citizens' Assembly meetings. With this latest
order, we again had to make modifications in our
instructions to all those managing and supervising
the holding of the Citizens' Assembly meetings
throughout the province. ... Aside from the
coordinators we had from the Office of the
Governor, the splendid cooperation and support
extended by almost all government officials and
employees in the province, particularly of the
Department of Education, PC and PACD
personnel, provided us with enough hands to
trouble shoot and implement sudden changes in
the instructions anytime and anywhere needed.
...
... As to our people, in general, their enthusiastic
participation showed their preference and
readiness to accept this new method of
government to people consultation in shaping up
government policies.
Page 23 of 158
another instruction from the top was received to include the
original five questions among those be discussed and asked in the
Citizens' Assembly meetings. With this latest order, we again had to
make modifications in our instructions to all those managing and
supervising holding of the Citizens' Assembly meetings throughout
province. ... As to our people, in general, their enthusiastic
participation showed their preference and readiness to accept the
new method of government to people consultation in shaping
up government policies."
This communication manifestly shows: 1) that, as late a January 11,
1973, the Bataan officials had still to discuss — not put into
operation — means and ways to carry out the changing instructions
from the top on how to organize the citizens' assemblies, what to
do therein and even what questions or topics to propound or touch
in said assemblies; 2) that the assemblies would involve no more
than consultations or dialogues between people and government
— not decisions be made by the people; and 3) that said
consultations were aimed only at "shaping up government policies"
and, hence could not, and did not, partake of the nature of a
plebiscite for the ratification or rejection of a proposed amendment
of a new or revised Constitution for the latter does not entail the
formulation of a policy of the Government, but the making
of decision by the people on the new way of life, as a nation, they
wish to have, once the proposed Constitution shall have been
ratified.
If this was the situation in Bataan — one of the provinces nearest to
Manila — as late as January 11, 1973, one can easily imagine the
predicament of the local officials and people in the remote barrios
in northern and southern Luzon, in the Bicol region, in the Visayan
Islands and Mindanao. In fact, several members of the Court,
including those of their immediate families and their household,
although duly registered voters in the area of Greater Manila,
were not even notified that citizens' assemblies would be held in
the places where their respective residences were located. In the
Prohibition and Amendment case, 77 attention was called to the
"duty cast upon the court of taking judicial cognizance of anything
affecting the existence and validity of any law or portion of the
Constitution ... ." In line with its own pronouncement in another
case, the Federal Supreme Court of the United States stressed,
in Baker v. Carr, 78 that "a court is not at liberty to shut its eyes to
an obvious mistake, when the validity of the law depends upon the
truth of what is declared."

In the light of the foregoing, I cannot see how the question under
consideration can be answered or resolved otherwise than in the
negative.
V No. 1081 placing the Philippines under Martial Law. Besides, by
Have the people acquiesced in the proposed Constitution?
It is urged that the present Government of the Philippines is now
and has been run, since January 17, 1971, under the Constitution
drafted by the 1971 Constitutional Convention; that the political
department of the Government has recognized said revised
Constitution; that our foreign relations are being conducted under
such new or revised Constitution; that the Legislative Department
has recognized the same; and that the people, in general, have, by
their acts or omissions, indicated their conformity thereto.
As regards the so-called political organs of the Government, gather
that respondents refer mainly to the offices under the Executive
Department. In a sense, the latter performs some functions which,
from a constitutional viewpoint, are politics in nature, such as in
recognizing a new state or government, in accepting diplomatic
representatives accredited to our Government, and even in
devising administrative means and ways to better carry into effect.
Acts of Congress which define the goals or objectives thereof, but
are either imprecise or silent on the particular measures to be
resorted to in order to achieve the said goals or delegate the power
to do so, expressly or impliedly, to the Executive. This,
notwithstanding, the political organ of a government that purports
to be republican is essentially the Congress or Legislative
Department. Whatever may be the functions allocated to the
Executive Department — specially under a written, rigid
Constitution with a republican system of Government like ours —
the role of that Department is inherently, basically and
fundamentally executive in nature — to "take care that the laws be
faithfully executed," in the language of our 1935 Constitution. 79
Consequently, I am not prepared to concede that the acts the
officers and offices of the Executive Department, in line with
Proclamation No. 1102, connote a recognition thereof o an
acquiescence thereto. Whether they recognized the proposed
Constitution or acquiesce thereto or not is something that cannot
legally, much less necessarily or even normally, be deduced from
Page 24 of 158
their acts in accordance therewith, because the are bound to obey 1. The "Governor of the State in swearing fidelity to it and
and act in conformity with the orders of the President, under proclaiming it, as directed thereby";
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
resolution, July 15, 1902, recognizing the Constitution ordained by
virtue of the very decrees, orders and instructions issued by the the Convention ...";
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
issuance of Proclamation No. 1102, on January 17, 1973 — putting its provisions into
declaring that the Constitution proposed by the 1971 Constitutional operation ...";
Convention has been ratified by the overwhelming majority of the
people — that he could not do under the authority he claimed to
4. The "judiciary in taking the oath prescribed thereby to support it
have under Martial Law, since September 21, 1972, except the
and by enforcing its provisions ..."; and
power of supervision over inferior courts and its personnel, which
said proposed Constitution would place under the Supreme Court,
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
of thousands throughout the State, and by voting, under its
continued to handle, this Court having preferred to maintain
provisions, at a general election for their representatives in the
the status quo in connection therewith pending final determination
Congress of the United States."
of these cases, in which the effectivity of the aforementioned
Constitution is disputed.
Note that the New Constitution of Virginia, drafted by a convention
whose members were elected directly by the people,
Then, again, a given department of the Government cannot
was not submitted to the people for ratification or rejection
generally be said to have "recognized" its own acts. Recognition
thereof. But, it was recognized, not by the convention itself, but
normally connotes the acknowledgment by a party of the acts
by other sectors of the Government, namely, the Governor; the
of another. Accordingly, when a subordinate officer or office of the
Legislature — not merely by individual acts of its members, but
Government complies with the commands of a superior officer or
by formal joint resolution of its two (2) chambers; by the judiciary;
office, under whose supervision and control he or it is, the former
and by the people, in the various ways specified above. What is
merely obeys the latter. Strictly speaking, and from a legal and
more, there was no martial law. In the present cases, none of the
constitutional viewpoint, there is no act of recognition involved
foregoing acts of acquiescence was present. Worse still, there is
therein. Indeed, the lower officer or office, if he or it acted
martial law, the strict enforcement of which was announced shortly
otherwise, would just be guilty of insubordination.
before the alleged citizens' assemblies. To top it all, in the Taylor
case, the effectivity of the contested amendment was not
Thus, for instance, the case of Taylor v. Commonwealth 80 — cited
contested judicially until about one (1) year after the amendment
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
pursuant to the provisions of the new Constitution. In the cases
people of the state to revise and amend the Constitution of 1869.
under consideration, the legality of Presidential Decree No. 73
The result of the work of that Convention has been recognized,
calling a plebiscite to be held on January 15, 1973, was impugned as
accepted and acted upon as the only valid Constitution of the
early as December 7, 1972, or five (5) weeks before the scheduled
State" by —
plebiscite, whereas the validity of Proclamation No. 1102 declaring
on January 17, 1973, that the proposed Constitution had been

ratified — despite General Order No. 20, issued on January 7, 1972,
formally and officially suspending the plebiscite until further notice
— was impugned as early as January 20, 1973, when L-36142 was
filed, or three (3) days after the issuance of Proclamation No. 1102.
It is further alleged that a majority of the members of our House of
Representatives and Senate have acquiesced in the new or revised
Constitution, by filing written statements opting to serve in the Ad
Interim Assembly established in the Transitory Provisions of said
Constitution. Individual acts of recognition by members of our
legislature, as well as of other collegiate bodies under the
government, are invalid as acts of said legislature or bodies, unless
its members have performed said acts in session duly assembled, or
unless the law provides otherwise, and there is no such law in the
Philippines. This is a well-established principle of Administrative
Law and of the Law of Public Officers, and no plausible reason has
been adduced to warrant departure therefrom. 81
Indeed, if the members of Congress were generally agreeable to the
proposed Constitution, why did it become necessary to padlock its
premises to prevent its meeting in session on January 22, 1973, and
thereafter as provided in the 1935 Constitution? It is true that,
theoretically, the members of Congress, if bent on discharging their
functions under said Constitution, could have met in any other
place, the building in which they perform their duties being
immaterial to the legality of their official acts. The force of this
argument is, however, offset or dissipated by the fact that, on or
about December 27, 1972, immediately after a conference between
the Executive, on the one hand, and members of Congress, on the
other, some of whom expressed the wish to meet in session on
January 22, 1973, as provided in the 1935 Constitution, a Daily
Express columnist (Primitivo Mijares) attributed to Presidential
Assistant Guillermo de Vega a statement to the effect that "'certain
members of the Senate appear to be missing the point in issue'
when they reportedly insisted on taking up first the question of
convening Congress." The Daily Express of that date, 82 likewise,
headlined, on its front page, a "Senatorial Plot Against 'Martial Law
Government' Disclosed". Then, in its issue of December 29, 1972,
the same paper imputed to the Executive an appeal "to diverse
groups involved in a conspiracy to undermine" his powers" under
martial law to desist from provoking a constitutional crisis ... which
may result in the exercise by me of authority I have not exercised."
No matter how good the intention behind these statement may
have been, the idea implied therein was too clear an ominous for
any member of Congress who thought of organizing, holding or
taking part in a session of Congress, not to get the impression that
he could hardly do so without inviting or risking the application of
Martial Law to him. Under these conditions, I do not feel justified in
holding that the failure of the members of Congress to meet since
January 22, 1973, was due to their recognition, acquiescence in or
conformity with the provisions of the aforementioned Constitution,
or its alleged ratification.
For the same reasons, especially because of Proclamation No. 1081,
placing the entire Philippines under Martial Law, neither am I
prepared to declare that the people's inaction as regards
Proclamation No. 1102, and their compliance with a number of
Presidential orders, decrees and/or instructions — some or many of
which have admittedly had salutary effects — issued subsequently
thereto amounts, constitutes or attests to a ratification, adoption
or approval of said Proclamation No. 1102. In the words of the
Chief Executive, "martial law connotespower of the gun,
meant coercion by the military,
and compulsion and intimidation." 83 The failure to use the gun
against those who comply with the orders of the party wielding the
weapon does not detract from the intimidation that Martial Law
necessarily connotes. It may reflect the good, reasonable and
wholesome attitude of the person who has the gun, either pointed
at others, without pulling the trigger, or merely kept in its holster,
but not without warning that he may or would use it if he deemed
it necessary. Still, the intimidation is there, and inaction or
obedience of the people, under these conditions, is not necessarily
an act of conformity or acquiescence. This is specially so when we
consider that the masses are, by and large, unfamiliar with the
parliamentary system, the new form of government introduced in
the proposed Constitution, with the particularity that it is not even
identical to that existing in England and other parts of the world,
and that even experienced lawyers and social scientists find it
difficult to grasp the full implications of some provisions
incorporated therein.
As regards the applicability to these cases of the "enrolled bill" rule,
it is well to remember that the same refers to a document certified
to the President — for his action under the Constitution — by the
Senate President and the Speaker of the House of Representatives,
and attested to by the Secretary of the Senate and the Secretary of
Page 25 of 158
the House of Representatives, concerning legislative measures
approved by the two Houses of Congress. The argument of the
Solicitor General is, roughly, this: If the enrolled bill is entitled to full
faith and credence and, to this extent, it is conclusive upon the
President and the judicial branch of the Government, why should
Proclamation No. 1102 merit less consideration than in enrolled
bill?
Before answering this question, I would like to ask the following: If,
instead of being certified by the aforementioned officers of
Congress, the so-called enrolled bill were certified by, say, the
President of the Association of Sugar Planters and/or Millers of the
Philippines, and the measure in question were a proposed
legislation concerning Sugar Plantations and Mills sponsored by said
Association, which even prepared the draft of said legislation, as
well as lobbied actually for its approval, for which reason the
officers of the Association, particularly, its aforementioned
president — whose honesty and integrity are unquestionable —
were present at the deliberations in Congress when the same
approved the proposed legislation, would the enrolled bill rule
apply thereto? Surely, the answer would have to be in the negative.
Why? Simply, because said Association President has absolutely no
official authority to perform in connection therewith, and, hence,
his certification is legally, as good as non-existent.
Similarly, a certification, if any, of the Secretary of the Department
of Local Governments and Community Development about the
tabulated results of the voting in the Citizens Assemblies
allegedly held all over the Philippines — and the records do not
show that any such certification, to the President of the Philippines
or to the President Federation or National Association of presidents
of Provincial Associations of presidents of municipal association
presidents of barrio or ward assemblies of citizens — would not,
legally and constitutionally, be worth the paper on which it is
written. Why? Because said Department Secretary is not the officer
designated by law to superintend plebiscites or elections held for
the ratification or rejection of a proposed amendment or revision of
the Constitution and, hence, to tabulate the results thereof. Worse
still, it is the department which, according to Article X of the
Constitution, should not and must not be all participate in said
plebiscite — if plebiscite there was.
After citing approvingly its ruling in United States v. Sandoval, 84 the
Highest Court of the United States that courts "will not stand

impotent before an obvious instance of a manifestly unauthorized
exercise of power." 85
I cannot honestly say, therefore, that the people impliedly or
expressly indicated their conformity to the proposed Constitution.
VI
Are the Parties entitled to any relief?
Before attempting to answer this question, a few words be said
about the procedure followed in these five (5) cases. In this
connection, it should be noted that the Court has not decided
whether or not to give due course to the petitions herein or to
require the respondents to answer thereto. Instead, it has required
the respondents to comment on the respective petitions — with
three (3) members of the voting to dismiss them outright — and
then considers comments thus submitted by the respondents as
motions to dismiss, as well as set the same for hearing. This was
due to the transcendental nature of the main issue raised, the
necessity of deciding the same with utmost dispatch, and the main
defense set up by respondents herein, namely, the alleged political
nature of said issue, placing the same, according to respondents,
beyond the ambit of judicial inquiry and determination. If this
defense was sustained, the cases could readily be dismissed; but,
owing to the importance of the questions involved, a reasoned
resolution was demanded by public interest. At the same time,
respondents had cautioned against a judicial inquiry into the merits
of the issues posed on account of the magnitude of the evil
consequences, it was claimed, which would result from a decision
thereon, if adverse to the Government.
As a matter of fact, some of those issues had been raised in the
plebiscite cases, which were dismissed as moot and academic,
owing to the issuance of Proclamation No. 1102 subsequently to
the filing of said cases, although before the rendition of judgment
therein. Still one of the members of the Court (Justice Zaldivar) was
of the opinion that the aforementioned issues should be settled in
said cases, and he, accordingly, filed an opinion passing upon the
merits thereof. On the other hand, three (3) members of the Court
— Justices Barredo, Antonio and Esguerra — filed separate opinions
favorable to the respondents in the plebiscite cases, Justice Barredo
holding "that the 1935 Constitution has pro tanto passed into
history and has been legitimately supplanted by the Constitution in
force by virtue of Proclamation 1102." 86 When the petitions at bar
were filed, the same three (3) members of the Court, consequently,
voted for the dismissal of said petitions. The majority of the
members of the Court did not share, however, either view,
believing that the main question that arose before the rendition of
said judgment had not been sufficiently discussed and argued as
the nature and importance thereof demanded.
The parties in the cases at bar were accordingly given every
possible opportunity to do so and to elucidate on and discuss said
question. Thus, apart from hearing the parties in oral argument for
five (5) consecutive days — morning and afternoon, or a total of
exactly 26 hours and 31 minutes — the respective counsel filed
extensive notes on their or arguments, as well as on such additional
arguments as they wished to submit, and reply notes or
memoranda, in addition to rejoinders thereto, aside from a sizeable
number of document in support of their respective contentions, or
as required by the Court. The arguments, oral and written,
submitted have been so extensive and exhaustive, and the
documents filed in support thereof so numerous and bulky, that,
for all intents and purposes, the situation is as if — disregarding
forms — the petitions had been given due course and the cases had
been submitted for decision.
Accordingly, the majority of the members of the Court believe that
they should express their views on the aforementioned issues as if
the same were being decided on the merits, and they have done so
in their individual opinion attached hereto. Hence, the resume of
the votes cast and the tenor of the resolution, in the last pages
hereof, despite the fact that technically the Court has not, as yet,
formally given due course to the petitions herein.
And, now, here are my views on the reliefs sought by the parties.
In L-36165, it is clear that we should not issue the writ
of mandamus prayed for against Gil J. Puyat and Jose Roy,
President and President Pro Tempore respectively of the Senate, it
being settled in our jurisdiction, based upon the theory of
separation of powers, that the judiciary will not issue such writ to
the head of a co-equal department, like the aforementioned
officers of the Senate.
Page 26 of 158
In all other respects and with regard to the other respondent in said
case, as well as in cases L-36142, L-36164, L-36236 and L-36283, my
vote is that the petitions therein should be given due course, there
being more than prima facie showing that the proposed
Constitution has not been ratified in accordance with Article XV of
the 1935 Constitution, either strictly, substantially, or has been
acquiesced in by the people or majority thereof; that said proposed
Constitution is not in force and effect; and that the 1935
Constitution is still the Fundamental Law of the Land, without
prejudice to the submission of said proposed Constitution to the
people at a plebiscite for its ratification or rejection in accordance
with Articles V, X and XV of the 1935 Constitution and the
provisions of the Revised Election Code in force at the time of such
plebiscite.
Perhaps others would feel that my position in these cases overlooks
what they might consider to be the demands of "judicial
statesmanship," whatever may be the meaning of such phrase. I am
aware of this possibility, if not probability; but "judicial
statesmanship," though consistent with Rule of Law, cannot
prevail over the latter. Among consistent ends or consistent values,
there always is a hierarchy, a rule of priority.
We must realize that the New Society has many achievements
which would have been very difficult, if not impossible, to
accomplish under the old dispensation. But, in and for the judiciary,
statesmanship should not prevail over the Rule of Law. Indeed, the
primacy of the law or of the Rule of Law and faithful adherence
thereto are basic, fundamental and essential parts of statesmanship
itself.
Resume of the Votes Cast and the Court's Resolution
As earlier stated, after the submittal by the members of the Court
of their individual opinions and/or concurrences as appended
hereto, the writer will now make, with the concurrence of his
colleagues, a resume or summary of the votes cast by each of them.
It should be stated that by virtue of the various approaches and
views expressed during the deliberations, it was agreed to
synthesize the basic issues at bar in broad general terms in five
questions for purposes of taking the votes. It was further agreed of
course that each member of the Court would expound in his

individual opinion and/or concurrence his own approach to the
stated issues and deal with them and state (or not) his opinion
thereon singly or jointly and with such priority, qualifications and
modifications as he may deem proper, as well as discuss thereon
other related issues which he may consider vital and relevant to the
cases at bar.
The five questions thus agreed upon as reflecting the basic issues
herein involved are the following:
1. Is the issue of the validity of Proclamation No. 1102 a justiciable,
or political and therefore non-justiciable, question?
2. Has the Constitution proposed by the 1971 Constitutional
Convention been ratified validly (with substantial, if not strict,
compliance) conformably to the applicable constitutional and
statutory provisions?
3. Has the aforementioned proposed Constitution acquiesced in
(with or without valid ratification) by the people?
4. Are petitioners entitled to relief? and
5. Is the aforementioned proposed Constitution in force?
The results of the voting, premised on the individual views
expressed by the members of the Court in their respect opinions
and/or concurrences, are as follows:
1. On the first issue involving the political-question doctrine Justices
Makalintal, Zaldivar, Castro, Fernando, Teehankee and myself, or
six (6) members of the Court, hold that the issue of the validity of
Proclamation No. 1102 presents a justiciable and non-political
question. Justices Makalintal and Castro did not vote squarely on
this question, but, only inferentially, in their discussion of the
second question. Justice Barredo qualified his vote, stating that
"inasmuch as it is claimed there has been approval by the people,
the Court may inquire into the question of whether or not there has
actually been such an approval, and, in the affirmative, the Court
should keep hands-off out of respect to the people's will, but, in
negative, the Court may determine from both factual and legal
angles whether or not Article XV of the 1935 Constitution been
complied with." Justices Makasiar, Antonio, Esguerra, or three (3)
members of the Court hold that the issue is political and "beyond
the ambit of judicial inquiry."
2. On the second question of validity of the ratification, Justices
Makalintal, Zaldivar, Castro, Fernando, Teehankee and myself, or
six (6) members of the Court also hold that the Constitution
proposed by the 1971 Constitutional Convention was not validly
ratified in accordance with Article XV, section 1 of the 1935
Constitution, which provides only one way for ratification, i.e., "in
an election or plebiscite held in accordance with law and
participated in only by qualified and duly registered voters. 87
Justice Barredo qualified his vote, stating that "(A)s to whether or
not the 1973 Constitution has been validly ratified pursuant to
Article XV, I still maintain that in the light of traditional concepts
regarding the meaning and intent of said Article, the referendum in
the Citizens' Assemblies, specially in the manner the votes therein
were cast, reported and canvassed, falls short of the requirements
thereof. In view, however, of the fact that I have no means of
refusing to recognize as a judge that factually there was voting and
that the majority of the votes were for considering as approved the
1973 Constitution without the necessity of the usual form of
plebiscite followed in past ratifications, I am constrained to hold
that, in the political sense, if not in the orthodox legal sense, the
people may be deemed to have cast their favorable votes in the
belief that in doing so they did the part required of them by Article
XV, hence, it may be said that in its political aspect, which is what
counts most, after all, said Article has been substantially complied
with, and, in effect, the 1973 Constitution has been constitutionally
ratified."
Justices Makasiar, Antonio and Esguerra, or three (3) members of
the Court hold that under their view there has been in effect
substantial compliance with the constitutional requirements for
valid ratification.
3. On the third question of acquiescence by the Filipino people in
the aforementioned proposed Constitution, no majority vote has
been reached by the Court.
Four (4) of its members, namely, Justices Barredo, Makasiar,
Antonio and Esguerra hold that "the people have already accepted
the 1973 Constitution."
Page 27 of 158
Two (2) members of the Court, namely, Justice Zaldivar and myself
hold that there can be no free expression, and there has even been
no expression, by the people qualified to vote all over the
Philippines, of their acceptance or repudiation of the proposed
Constitution under Martial Law. Justice Fernando states that "(I)f it
is conceded that the doctrine stated in some American decisions to
the effect that independently of the validity of the ratification, a
new Constitution once accepted acquiesced in by the people must
be accorded recognition by the Court, I am not at this stage
prepared to state that such doctrine calls for application in view of
the shortness of time that has elapsed and the difficulty of
ascertaining what is the mind of the people in the absence of the
freedom of debate that is a concomitant feature of martial law." 88
Three (3) members of the Court express their lack of knowledge
and/or competence to rule on the question. Justices Makalintal and
Castro are joined by Justice Teehankee in their statement that
"Under a regime of martial law, with the free expression of
opinions through the usual media vehicle restricted, (they) have no
means of knowing, to the point of judicial certainty, whether the
people have accepted the Constitution." 89
4. On the fourth question of relief, six (6) members of the Court,
namely, Justices Makalintal, Castro, Barredo, Makasiar, Antonio and
Esguerra voted to DISMISS the petition. Justice Makalintal and
Castro so voted on the strength of their view that "(T)he effectivity
of the said Constitution, in the final analysis, is the basic and
ultimate question posed by these cases to resolve which
considerations other than judicial, an therefore beyond the
competence of this Court, 90 are relevant and unavoidable." 91
Four (4) members of the Court, namely, Justices Zaldivar, Fernando,
Teehankee and myself voted to deny respondents' motion to
dismiss and to give due course to the petitions.
5. On the fifth question of whether the new Constitution of 1973 is
in force:
Four (4) members of the Court, namely, Justices
Barredo, Makasiar, Antonio and Esguerra hold
that it is in force by virtue of the people's
acceptance thereof;

Four (4) members of the Court, namely, Justices
Makalintal, Castro, Fernando and Teehankee cast
no vote thereon on the premise stated in their
votes on the third question that they could not
state with judicial certainty whether the people
have accepted or not accepted the Constitution;
and
Two (2) members of the Court, namely, Justice
Zaldivar and myself voted that the Constitution
proposed by the 1971 Constitutional Convention
is not in force;
with the result that there are not enough votes to declare that the
new Constitution is not in force.
ACCORDINGLY, by virtue of the majority of six (6) votes of Justices
Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra with
the four (4) dissenting votes of the Chief Justice and Justices
Zaldivar, Fernando and Teehankee, all the aforementioned cases
are hereby dismissed. This being the vote of the majority, there is
no further judicial obstacle to the new Constitution being
considered in force and effect.
It is so ordered.
Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra, JJ.,
concur.
ANNEX A
PERTINENT PORTIONS OF THE MINNESSOTA SUPREME COURT
DECISION ON THE CASE IN RE McCONAUGHY
"(a) An examination of the decisions shows that the courts have
almost uniformly exercised the authority to determine the validity of
the proposal, submission, or ratification of constitutional
amendments. It has been judicially determined whether a proposed
amendment received the constitutional majority of votes (Dayton v.
St. Paul, 22 Minn. 400; Rice v. Palmer, 78 Ark. 432, 96 S.W. 396;
Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl. 744, 881, 45 L.R.A. 251; State
v. Foraker, 46 Ohio St. 677, 23 N.E. 49l; 6 L.R.A. 422; Tecumseh
National Bank V. Saunders, 51 Neb. 801, 71 N.W. 779; Green v.
State Board, 5 Idaho, 130, 47 Pac. 259, 95 Am. St. Rep. 169; In re
Denny, 156 Ind. 104, 59 N.E. 359, 51 L.R.A. 722; Knight v. Shelton
[C.C.] 134 Fed. 423); whether a proposed amendment is a single
amendment, within the constitutional requirement that every
amendment must be separately submitted (State v. Powell, 77
Miss. 543, 27 South. 927; Gabbert v. Chicago, etc., R. Co., 171 Mo.
84, 70 S.W. 891; State v. Timme, 54 Wis. 318, 11 N.W. 785; In re
Denny, 156 Ind. 104, 59 N.E. 359, 51 L.R.A. 722; Lobaugh v. Cook,
127 Iowa, 181, 102 N.W. 1121; People v. Sours, 31 Colo. 369, 74
Pac. 167, 102 Am. St. Rep. 34; State v. Board, 34 Mont. 426, 87 Pac.
450; State v. Winnett [Neb.] 110 N.W. 1113, 10 L.R.A. [N.S.] 149);
whether the failure to enter the resolution of submission upon the
legislative journals invalidates the amendment (Koehler v. Hill, 60
Iowa, 543,14 N.W. 738,15 N.W. 609; Oakland Paving Co. v. Hilton,
69 Cal. 479, 11 Pac. 3; West v. State, 50 Fla. 154, 39 South. 412;
Durfee v. Harper, 22 Mont. 354, 56 Pac. 56; State v. Tufly, 19 Nev.
391, 12 Pac. 835, 3 Am. St. Rep. 895); whether the description of the
amendment and the form of the ballot are sufficient (Russell v.
Croy, 164 M 69, 63 S.W. 849; State v. Winnett [ Neb.] 110 N.W.
1113, L.R.A. [N.S.] 149; Murphy Chair Co. v. Attorney General
[Mich.] 112 N.W. 127); whether the method of submission
sufficient (Lovett v. Ferguson,, 10 S.D. 44, 71 N.W. 765; Russell v.
Croy, 164 Mo. 69, 63 S.W. 849); whether the publication of the
amendment or of a notice relative to it is sufficient (Com. v. Griest,
196 Pa. 396, 46 Atl. 505, 50 L.R.A. 568; Russell v. Croy, 164 Mo. 69,
63 S.W. 849); whether the submission may be well by resolution as
by a legislative act approved by the executive (Com. v. Griest, 196
Pa. 396, 46 Atl. 505, 50 L.R. 568; Warfield vi Vandiver, 101 Md. 78,
60 Atl. 538; Edward Lesueur, 132 Mo. 410, 33 S.W. 1130, 31 L.R.A.
815; Hays v. Hays, 5 Idaho, 154, 47 Pac. 732; State v. Dahl, 6 N.D.
81, 6 N.W. 418, 34 L.R.A. 97); at what election the amendment be
submitted (People v. Curry, 130 Cal. 82, 62 Pac. 516).
In Rich v. Board of Canvassers, 100 Mich. 458, 59 N.W. 183, the
court said: "It is contended that the determination of the question
whether an amendment to the Constitution has been carried
involves the exercise of political, and not judicial, power. If this be
so, it follows that the promulgation of any purported amendment
by the executive or any executive department is final, and that the
action cannot be questioned by the judiciary; but, with reference to
the conditions precedent to submitting a proposed amendment to a
vote of the people, it has been repeatedly held, by courts of the
highest respectability, that it is within the power of the judiciary to
Page 28 of 158
inquire into the question, even in a collateral proceeding. ... It is to
be noted that under section 1 of article 20 of the Constitution of
the state no amendment can become a part of the
Constitution until ratified by a vote of the people. One prerequisite
is equally as essential as the other. The amendment must first
receive the requisite majority in the Legislature, and afterwards be
adopted by the requisite vote. ... It is the fact of a majority vote
which makes the amendment a part of the Constitution."
"In considering the cases it is necessary to note whether in the
particular case the court was called upon to determine
between rival governments, or whether the Legislature, or some
board or official, had legally performed the duty imposed by the
Constitution or statutes. In re State v. McBride, 4 Mo. 303, 29 Am.
Dec. 636, it was held that the General Assembly, under the power
granted by the Constitution, could change the Constitution only in
the manner prescribed by it, and that it was the duty of the court to
determine whether all prerequisites had been complied with.
In Collier v. Frierson, 24 Ala. 100, it was held that a Constitution can
be changes only by the people in convention or in a mode
described by the Constitution itself, and that if the latter mode is
adopted every requisite of the Constitution must be observed. 'It has
been said," says the court, "that certain acts are to be done, certain
requisitions are to be observed, before a change can be effected;
but to what purpose are these acts required, or these requisitions
enjoined, if the Legislature or any other department of the
government can dispense with them. To do so would be to violate
the instrument which they are sworn to support; and every
principle of public law and sound constitutional policy requires the
court to pronounce against every amendment which is shown not to
have been made in accordance with the rules prescribed by the
fundamental law.'
"In State v. Swift, 69 Ind. 505, it was said that: 'The people of a state
may form an original Constitution, or abrogate an old one and form
a new one, at any time, without any political restriction, except the
Constitution of the United States, but if they undertake to add an
amendment, by the authority of legislation to a Constitution
already in existence, they can do it only by the method pointed out
by the Constitution to which the amendment is added. The power
to amend a Constitution by legislative action does not confer the
power to break it, any more than it confers the power to legislate
on any other subject contrary to its prohibitions.' So, in State v.
Timme, 54 Wis. 318, 11 N.W. 785, it was held that no amendments

can be made to the Constitution of the state without a compliance
with the provisions thereof, both in the passage of such amendment
by the Legislature and the manner of submitting it to the people.
The courts have not all agreed as to the strictness of compliance
which should be required.
"In the Prohibition and Amendment Case, 24 Kan. 700, the
court determined judicially whether an amendment to the
Constitution had been legally adopted. After approving the
statement quoted from Collier v. Frierson, supra, that 'we
entertain no doubt that, to change the Constitution in an other
mode than by a convention, every requisite which is demanded by
the instrument itself must be observed, and the omission of any one
is fatal to the amendment,' the court held that, 'as substance of
right is grander and more potent than methods of form,' there had
been substantial compliance with the constitutional requirement
that a proposed amendment to the Constitution must be entered at
length on the legislative journal. It appears that the joint resolution
making submission simply provided that a proposition should be
submitted to the electors at the general election of 1880. It did not
declare that the machinery of the general election law should
control, or that any particular officers or board would receive,
count, or canvass the votes cast. But the existing election machinery
was adequate, and the votes were received, counted, and
canvassed, and the result declared as fully as though it had been in
terms so ordered. These methods had been followed in the
adoption of previous amendments, and was held that, conceding
the irregularity of the proceedings the Legislature and the doubtful
scope of the provisions for the election, yet in view of the very
uncertainty of such provision the past legislative history of similar
propositions, the universal prior acquiescence in the same forms of
procedure and the popular and unchallenged acceptance of the
legal pendency before the people of the question of the
amendment for decision, and in view of the duty cast upon the
court taking judicial knowledge of anything affecting the existence
and validity of any law or portion of the Constitution, it must be
adjudged that the proposed amendment became part of the
Constitution. The effect was to hold that a provision of the
Constitution requiring the proposed amendment to be entered in
full on the journals was directory, and not mandatory.
This liberal view was approved in State v. Winnett (Neb.) 110 N.
1113, 10 L.R.A. (N.S.) 149, and People v. Sours, 31 Colo. 369, Pac.
167, 102 Am. St. Rep. 34. But it has not been universally accepted.
"In Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 Pac. 3, the court, in
commenting upon the Kansas case said: 'The reasoning by which
the learned court reached the conclusion it did is not based on any
sound legal principles, but contrary to them. Neither the
argument nor the conclusion can command our assent or approval.
The argument is illogical, and based on premises which are without
any sound foundation, and rests merely on assumption.' See, also,
the well-considered case of Kadderly v. Portland, 44 Or. 118, 74
Pac. 710, 75 Pac. 222. All these cases concede the jurisdiction of the
court to determine whether, in submitting a proposed amendment
to the people, the Legislature legally observed the constitutional
provisions as to the manner of procedure. In Livermore v. Waite,
102 Cal. 113, 36 Pac. 424, 25 L.R.A. 312, the court, at the instance
of a citizen and a taxpayer, restrained the Secretary of State from
taking steps to submit to the people a proposed amendment to the
Constitution agreed to by the Legislature on the ground that the
Legislature had not acted in conformity with the Constitution and
that the proposed amendment was of such a character that it could
not properly become a part of the Constitution. The Supreme Court
of Colorado, in People v. Sours, supra, refused to exercise this
authority.
"The entire question received elaborate consideration in Koehler v.
Hill, 60 Iowa, 543, 14 N.W. 738, 15 N.W. 609. The amendment,
which concededly had been adopted by the people, had not, before
its submission, been entered in full upon the legislative journals, as
required by the Constitution, and it was held that this was
a material variance in both form and substance from the
constitutional requirements, and that the amendment did not,
therefore, become a part of the Constitution. As to the claim that
the question was political, and not judicial, it was said that, while it
is not competent for courts to inquire into the validity of the
Constitution and the form of government under which they
themselves exist, and from which they derive their powers,
yet, where the existing Constitution prescribes a method for its own
amendment, an amendment thereto, to be valid, must be adopted
in strict conformity to that method; and it is the duty of the courts
in a proper case, when an amendment does not relate to their own
power or functions, to inquire whether, in the adoption of the
amendment, the provisions of the existing Constitution have been
observed, and, if not, to declare the amendment invalid and of no
force. This case was followed in State v. Brookhart, 113 Iowa, 250,
84 N.W. 1064.
Page 29 of 158
"In University v. McIver, 72 N.C. 76, the question whether a
proposed amendment to the Constitution had been legally adopted
was treated as a judicial question. By the Constitution a proposed
amendment was required to be approved by Legislatures before its
submission to the people. In this instance a bill was passed which
contained 17 amendments. The next Legislature rejected 9 and
adopted 8 of the amendments, and submitted them to the
people. The majority of the people voted for their adoption; but it
was contended that the Constitution contemplated and required
that the same bill and the same amendments, without change,
should approved by both Legislatures, and that it did not follow
because the second Legislature adopted separately 8 out of
17 amendments adopted by the first Legislature, it would have
adopted the 17, or any of them, if they had been voted upon the
second in the form adopted by the first body. The substance of the
contention was that there had not been a concurrence of
the twoLegislatures on the same amendments, according to the
letter and spirit of the Constitution. The court held that the power
of the Legislature in submitting amendments could not be
distinguished from the powers of convention, and that, as the
people had spoken and ratified the amendments, they became a
part of the Constitution.
"In Westinghausen v. People, 44 Mich. 265, 6 N.W. 641, it was held
that prior to 1876 a proposed amendment to Constitution could not
be submitted to the people at any other than a general election;
but, as the amendment under consideration had been
submitted after the Constitution been changed, it had been legally
submitted and adopted.
"In State v. Powell, 77 Miss. 543, 27 South. 927, the question
whether an amendment to the Constitution had been legally
submitted and adopted by the people was held to be judicial,
and not political, in its nature. The amendment under
consideration changed the Constitution by providing for an elective,
instead of an appointive, judiciary. It was contented that the
amendments had been improperly submitted and adopted by a
majority of the qualified voters voting at election, as required by
the Constitution. The law did direct how the result of the election
should be determined. The Legislature by joint resolution recited
that the election had been duly held throughout the state, and, as it
appeared from the returns made to the Secretary of State, that
21,169 votes were cast in favor of, and 8,643 votes against, the
amendment, it resolved 'that said amendment be, and hereby

is, inserted into the Constitution of the state of Mississippi as a part
of the Constitution.' In fact, the amendment was not submitted in
the manner prescribed by the Constitution, and it did not receive a
majority of all the qualified voters voting at the election. It was
argued that the rules prescribed by the Constitution "are all for the
guidance of the Legislature, and from the very nature of the thing
the Legislature must be the exclusive judge of all questions to be
measured or determined by these rules. Whether the question be
political, and certainly a legislative one, or judicial, to be
determined by the courts, this section of rules, not only of
procedure, but of final judgment as well, confides to the separate
magistracy of the legislative department full power to hear,
consider, and adjudge that question. The Legislature puts the
question to the qualified electors. The qualified electors answer
back to the Legislature. "If it shall appear" to the Legislature that its
question has been answered in the affirmative, the amendment is
inserted and made a part of the Constitution. The Governor and the
courts have no authority to speak at any stage of the proceedings
between the sovereign and the Legislature, and when the matter is
thus concluded it is closed, and the judiciary is as powerless to
interfere as the executive.' But it was held that the question
whether the proposition submitted to the voters constituted one,
or more than one, amendment, whether the submission was
according to the requirements of the Constitution, and whether the
proposition was in fact adopted, were all judicial, and not political,
questions. 'We do not,' said Chief Justice Whitfield, 'seek a
jurisdiction not imposed upon us by the Constitution. We could not,
if we would, escape the exercise of that jurisdiction which the
Constitution has imposed upon us. In the particular instance in
which we are now acting, our duty to know what the Constitution
of the state is, and in accordance with our oaths to support and
maintain it in its integrity, imposed on us a most difficult and
embarrassing duty, one which we have not sought, but one which,
like all others, must be discharged."
"In Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl. 744, 881, 45 L.R.A. 251, it
was held that it was the duty of the judicial department of the
government to determine whether the legislative department or its
officers had observed the constitutional injunctions in attempting to
amend the Constitution, and to annul their acts if they had not done
so. The case is an interesting and well-considered one. The
Constitution provided the manner in which proposed amendments
should be submitted to the people, but did not provide a method
for canvassing the votes. The Legislature having agreed to certain
proposed amendments, passed an act for submitting the same to
the people. This statute provided for the transmission to the
Secretary of State of certificate showing the result of the voting
throughout the state, and made it the duty of the Governor at the
designated time summon four or more Senators, who, with the
Governor, should constitute a board of state canvassers to canvass
and estimate the votes for and against each amendment. This
board was to determine and declare which of the proposed
amendments had been adopted and to deliver a statement of the
results to the Secretary of State, and "any proposed amendment,
which by said certificate and determination of the board of
canvassers shall appear to have received in its favor the majority of
all the votes cast in the state for and against said proposed
amendment, shall from the time of filing such certificate be and
become an amendment to and a part of the Constitution of the
state; and it shall be the duty of the Governor of the state
forthwith, after such a determination, to issue a proclamation
declaring which of the said proposed amendments have been
adopted by the people." This board was required to file a statement
of the result of the election, and the Governor to issue his
proclamation declaring that the amendment had been adopted and
become a part of the Constitution. At the instance of a taxpayer the
Supreme Court allowed a writ of certiorari to remove into the court
for review the statement of the results of the election made by the
canvassing board, in order that it might be judicially
determined whether on the facts shown in that statement the
board had legally determined that the proposed amendment had
been adopted. The Supreme Court decided that the concurrence of
the board of state canvassers and the executive department of the
government in their respective official functions placed the subject-
matter beyond the cognizance of the judicial department of the
state. The Court of Appeals, after a full review of the
authorities, reversed this decision, and held that the questions
were of a judicial nature, and properly determinable by the court
on their merits. Mr. Justice Dixon, after stating the facts, said: 'It
thus becomes manifest that there was present in the Supreme
Court, and is now pending in this court, every element tending to
maintain jurisdiction over the subject-matter, unless it be true, as
insisted, that the judicial department of the government has not
the right to consider whether the legislative department and its
agencies have observed constitutional injunctions in attempting to
amend the Constitution, and to annul their acts in case that they
have not done so. That such a proposition is not true seems to be
indicated by the whole history of jurisprudence in this country.' The
Page 30 of 158
court, after considering the case on the merits, held that the proper
conclusion had been drawn therefrom, and that the amendment in
question was legally submitted and adopted.
"The recent case of Rice v. Palmer, 78 Ark. 432, 96 S.W. 396,
presented the identical question which we have under
consideration. In reference to the contention that the Constitution
intended to delegate to the Speaker of the House of
Representatives the power to determine whether an amendment
had been adopted, and that the question was political, and not
judicial, the court observed: "The argument has often been made in
similar cases to the courts, and it is found in many dissenting
opinions; but, with probably a few exceptions, it is not found in
any prevailing opinion."
"In State v. Tooker, 15 Mont. 8, 37 Pac. 840, 25 L.R.A. 560, it was
held that the constitutional requirement of publication of a
proposed constitutional provision for three months prior to the
election at which it is to be submitted to the people
is mandatory and that noncompliance therewith renders the
adoption of an amendment of no effect."
ANNEX B
MALACAÑANG
MANILA
BY THE PRESIDENT OF THE PHILIPPINES
PRESIDENTIAL DECREE NO. 86-B
Defining Further the Role of Barangays (Citizens Assemblies)
WHEREAS, since their creation pursuant to Presidential Decree No.
86 dated December 31, 1972, the Barangays (Citizens Assemblies)
have petitioned the Office of the President to submit to them for
resolution important national issues;
WHEREAS, one of the questions persistently mention refers to the
ratification of the Constitution proposed by the 1971 Constitutional
Convention;
 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;

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the

Philippines, by virtue of the powers in me vested by the
Constitution, do hereby order that important national issues shall
from time to time be referred to the Barangays (Citizens
Assemblies) for resolution in accordance with Presidential Decree
No. 86-A dated January 5, 1973 an that the initial referendum shall
include the matter of ratification of the Constitution proposed by
the 1971 Constitutional Convention.

The Secretary of the Department of Local Government and

Community Development shall insure the implementation of this
Order.

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

By the President:

(SGD.) ALEJANDRO MELCHOR Executive Secretary


Separate Opinions
MAKALINTAL, J., concurring:
CASTRO, J., concurring:
The preliminary question before this Court was whether or not the
petitioners had made out a sufficient prima faciecase in their petitions to
justify their being given due course. Considering on the one hand the
urgency of the matter and on the other hand its transcendental
importance, which suggested the need for hearing the side of the
respondents before that preliminary question was resolved, We required
them to submit their comments on the petitions. After the comments were
filed We considered them as motions to dismiss so that they could be orally
argued. As it turned out, the hearing lasted five days, morning and
afternoon, and could not have been more exhaustive if the petitions had
been given due course from the beginning.
The major thrust of the petitions is that the act of the Citizens Assemblies
as certified and proclaimed by the President on January 17, 1973
(Proclamation No. 1102) was not an act of ratification, let alone a valid one,
of the proposed Constitution, because it was not in accordance with the
existing Constitution (of 1935) and the Election Code of 1971. Other
grounds are relied upon by the petitioners in support of their basic
proposition, but to our mind they are merely subordinate and peripheral.
Article XV, Section 1, of the 1935 Constitution provides that amendments
(proposed either by Congress in joint session or by a Convention called by it
for the purpose) "shall be valid part of this Constitution when approved by
a majority of votes cast at an election at which the amendments submitted
to the people for their ratification." At the time Constitution was approved
by the Constitutional Convention on February 8, 1935, and ratified in a
plebiscite held on following May 14, the word "election" had already a
definite meaning in our law and jurisprudence. It was not a vague and
amorphous concept, but a procedure prescribed by statute ascertaining
the people's choices among candidates for public offices, or their will on
important matters submitted to the pursuant to law, for approval. It was in
this sense that word was used by the framers in Article XV (also in Articles
VI and VII), and in accordance with such procedure that plebiscites were
held to ratify the very same Constitution in 1935 as well as the subsequent
amendments thereto, thus: in 1939 (Ordinance appended to the
Constitution); 1940 (establishment of a bicameral legislature; eligibility of
the President and the Vice President for re election; creation of the
Commission of Elections); 1947 (Parity Amendment); and 1967 (increase in
membership of the House of Representatives and eligibility of members of
Congress to run for the Constitutional Convention without forfeiture of
their offices).
The Election Code of 1971, in its Section 2, states that "all elections of
public officers except barrio officials andplebiscites shall be conducted in
the manner provided by this Code." This is a statutory requirement
designed, as were the other election laws previously in force, to carry out
the constitutional mandate relative to the exercise of the right suffrage,
and with specific reference to the term "plebiscites," the provision of
Article XV regarding ratification of constitutional amendments.
The manner of conducting elections and plebiscites provided by the Code is
spelled out in other sections thereof. Section 99 requires that qualified
voters be registered in a permanent list, the qualifications being those set
forth in Article V, Section 1, of the 1935 Constitution on the basis of age
(21), literacy and residence. These qualifications are reiterated in Section
101 of the Election Code. Section 102 enumerates the classes of persons
disqualified to vote. Succeeding sections prescribe the election
paraphernalia to be used, the procedure for registering voters, the records,
of registration and the custody thereof, the description and printing of
official ballots, the actual casting of votes and their subsequent counting by
the boards of inspectors, the rules for appreciation of ballots, and then the
canvass and proclamation of the results.
With specific reference to the ratification of the 1972 draft Constitution,
several additional circumstances should be considered:
(1) This draft was prepared and approved by a Convention which had been
convened pursuant to Resolution No. 2 passed by Congress on March 16,
1967, which provides:
Sec. 7. The amendments proposed by the Convention
shall be valid and considered part of the Constitution
when approved by a majority of the votes cast in an
election at which they are submitted to the people for
their ratification pursuant to Article XV of the
Constitution.
(2) Article XVII, Section 16, of the draft itself states:
Sec. 16. This Constitution shall take effect immediately
upon its ratification by a majority of the votes cast in a
plebiscite called for the purpose and, except as herein
provided, shall supersede the Constitution of nineteen
hundred and thirty-five and all amendments thereto.
The same procedure is prescribed in Article XVI, Section 2, for the
ratification of any future amendment to or revision of the said
Constitution.
Page 32 of 158
(3) After the draft Constitution was approved by the Constitutional
Convention on November 30, 1972 the said body adopted Resolution No.
5843, proposing "to President Ferdinand E. Marcos that a decree be issued
calling aplebiscite for the ratification of the proposed New Constitution on
such appropriate date as he shall determine and providing for the
necessary funds therefor." Pursuant to said Resolution the President issued
Decree No. 73 on the same day, calling a plebiscite to be held on January
15, 1973, at which the proposed Constitution "shall be submitted to the
people for ratification or rejection." The Decree had eighteen (18) sections
in all, prescribing in detail the different steps to be taken to carry out the
process of ratification, such as: (a) publication of the proposed Constitution
in English and Pilipino; (b) freedom of information and discussion; (c)
registration of voters: (d) appointment of boards of election inspectors and
designation of watchers in each precinct; (e) printing of official ballots; (f)
manner of voting to insure freedom and secrecy thereof; (g) canvass of
plebiscite returns; and (h) in general, compliance with the provisions of the
Election Code of 1971, with the Commission on Elections exercising its
constitutional and statutory powers of supervision of the entire process.
There can hardly be any doubt that in everybody's view — from the
framers of the 1935 Constitution through all the Congresses since then to
the 1971 Constitutional Convention — amendments to the Constitution
should be ratified in only one way, that is, in an election or plebiscite held
in accordance with law and participated in only by qualified and duly
registered voters. Indeed, so concerned was this Court with the importance
and indispensability of complying with the mandate of the (1935)
Constitution in this respect that in the recent case of Tolentino vs.
Commission on Elections, No. L-34150, October 16, 1971 (41 SCRA 702), a
resolution of the (1971) Constitutional Convention submitting a proposed
amendment for ratification to a plebiscite to be held in November 1971
was declared null and void. The amendment sought to reduce the voting
age from twenty-one to eighteen years and was approved by the
Convention for submission to a plebiscite ahead of and separately from
other amendments still being or to be considered by it, so as to enable the
youth to be thus enfranchised to participate in the plebiscite for the
ratification of such other amendments later. This Court held that such
separate submission was violative of Article XV, Section 1, of the
Constitution, which contemplated that "all the amendments to be
proposed by the same Convention must be submitted to the people in a
single "election" or plebiscite." * Thus a grammatical construction based on
a singular, instead of plural, rendition of the word "election" was
considered a sufficient ground to rule out the plebiscite which had been
called to ratify a proposed amendment in accordance with the procedure
and under all the safeguards provided in the Election Law.
In the cases now before Us what is at issue is not merely the ratification of
just one amendment, as in Tolentino vs. COMELEC, but the ratification of
an entire charter setting up a new form of government; and the issue has
 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?
QUESTION No. 4
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
QUESTION No. 5
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.
COMMENTS ON
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
QUESTION No. 1
"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

the 1935 Constitution nor in accordance with the Election Code of 1971.
The referendum can by no means be considered as the plebiscite
contemplated in Section 2 of said Code and in Article XVII, Section 16, of
the draft Constitution itself, or as the election intended by Congress when
it passed Resolution No. 2 on March 16, 1967 calling a Convention for the
revision of the 1935 Constitution. The Citizens Assemblies were not limited
to qualified, let alone registered voters, but included all citizens from the
age of fifteen, and regardless of whether or not they were illiterates,
feeble-minded, or ex convicts * — these being the classes of persons
expressly disqualified from voting by Section 102 of the Election Code. In
short, the constitutional and statutory qualifications were not considered
in the determination of who should participate. No official ballots were
used in the voting; it was done mostly by acclamation or open show of
hands. Secrecy, which is one of the essential features of the election
process, was not therefore observed. No set of rules for counting the votes
or of tabulating them and reporting the figures was prescribed or followed.
The Commission on Elections, which is the constitutional body charged
with the enforcement and administration of all laws relative to the conduct
of elections, took no part at all, either by way of supervision or in the
assessment of the results.
It has been suggested that since according to Proclamation No. 1102 the
overwhelming majority of all the members of the Citizens Assemblies had
voted for the adoption of the proposed Constitution there was a
substantial compliance with Article XV, Section 1, of the 1935 Constitution
and with the Election Code of 1971. The suggestion misses the point
entirely. It is of the essence of a valid exercise of the right of suffrage that
not only must a majority or plurality of the voters carry the day but that the
same must be duly ascertained in accordance with the procedure
prescribed by law. In other words the very existence of such majority or
plurality depends upon the manner of its ascertainment, and to conclude
that it exists even if it has not been ascertained according to law is simply
to beg the issue, or to assume the very fact to be established. Otherwise no
election or plebiscite could be questioned for non-compliance with the
provisions of the Election Law as long as it is certified that a majority of the
citizens had voted favorably or adversely on whatever it was that was
submitted to them to vote upon.
However, a finding that the ratification of the draft Constitution by the
Citizens Assemblies, as certified by the President in Proclamation No. 1102,
was not in accordance with the constitutional and statutory procedure laid
down for the purpose does not quite resolve the questions raised in these
cases. Such a finding, in our opinion, is on a matter which is essentially
justiciable, that is, within the power of this Court to inquire into. It imports
nothing more than a simple reading and application of the pertinent
provisions of the 1935 Constitution, of the Election Code and of other
related laws and official acts. No question of wisdom or of policy is
involved. But from this finding it does not necessarily follow that this Court
may justifiably declare that the Constitution has not become effective, and
for that reason give due course to these petitions or grant the writs herein
prayed for. The effectivity of the said Constitution, in the final analysis, is
the basic and ultimate question posed by these cases, to resolve which
considerations other than judicial, and therefore beyond the competence
of this Court, are relevant and unavoidable.
Several theories have been advanced respectively by the parties. The
petitioners lay stress on the invalidity of the ratification process adopted by
the Citizens Assemblies and on that premise would have this Court grant
the reliefs they seek. The respondents represented by the Solicitor
General, whose theory may be taken as the official position of the
Government, challenge the jurisdiction of this Court on the ground that the
questions raised in the petitions are political and therefore non-justiciable,
and that in any case popular acquiescence in the new Constitution and the
prospect of unsettling acts done in reliance thereon should caution against
interposition of the power of judicial review. Respondents Gil J. Puyat and
Jose Roy (in L-36165), in their respective capacities as President and
President Pro Tempore of the Senate of the Philippines, and through their
counsel, Senator Arturo Tolentino, likewise invoke the political question
doctrine, but on a ground not concurred in by the Solicitor General,
namely, that approval of the 1973 Constitution by the people was made
under a revolutionary government, in the course of a successful political
revolution, which was converted by act of the people to the present de
jure government under the 1973 Constitution."
Heretofore, constitutional disputes which have come before this Court for
adjudication proceeded on the assumption, conceded by all, that the
Constitution was in full force and effect, with the power and authority of
the entire Government behind it; and the task of this Court was simply to
determine whether or not the particular act or statute that was being
challenged contravened some rule or mandate of that Constitution. The
process employed was one of interpretation and synthesis. In the cases at
bar there is no such assumption: the Constitution (1935) has been
derogated and its continued existence as well as the validity of the act of
derogation is issue. The legal problem posed by the situation is aggravated
by the fact that the political arms of the Government — the Executive
Departments and the two Houses of Congress — have accepted the new
Constitution as effective: the former by organizing themselves and
discharging their functions under it, and the latter by not convening on
January 22, 1973 or at any time thereafter, as ordained by the 1935
Constitution, and in the case of a majority of the members by expressing
their option to serve in the Interim National Assembly in accordance with
Article XVIII, Section 2, of the 1973 Constitution. *
The theory advanced by Senator Tolentino, as counsel for respondents
Puyat and Roy, may be taken up and restated at same length if only
because it would constitute, if sustained, the most convenient ground for
Page 34 of 158
the invocation of the political-question doctrine. In support of his theory,
Senator Tolentino contends that after President Marcos declared martial
law on September 21, 1972 (Proclamation No. 1081) he established a
revolutionary government when he issued General Order No. 1 the next
day, wherein he proclaimed "that I shall govern the nation and direct the
operation of the entire government, including all its agencies and
instrumentalities, in my capacity, and shall exercise all the powers and
prerogatives appurtenant and incident to my position as such Commander-
in-Chief of all the Armed Forces of the Philippines." By this order, it is
pointed out, the Commander-in-Chief of the Armed Forces assumed all the
powers of government — executive, legislative, and judicial; and thereafter
proceeded to exercise such powers by a series of Orders and Decrees
which amounted to legislative enactments not justified under martial law
and, in some instances, trenched upon the domain of the judiciary, by
removing from its jurisdiction certain classes of cases, such as "those
involving the validity, legality, or constitutionality of Proclamation No.
1081, or of any decree, order or act issued, promulgated or performed by
me or by my duly designated representative pursuant thereto." (General
Order No. 3 as amended by General Order No. 3-A, dated September 24,
1972.) The ratification by the Citizens Assemblies, it is averred, was the
culminating act of the revolution, which thereupon converted the
government into a de jure one under the 1973 Constitution.
If indeed it be accepted that the Citizens Assemblies had ratified the 1973
Constitution and that such ratification as well as the establishment of the
government thereunder formed part of a revolution, albeit peaceful, then
the issue of whether or not that Constitution has become effective and, as
necessary corollary, whether or not the government legitimately functions
under it instead of under the 1935 Constitution, is political and therefore
non-judicial in nature. Under such a postulate what the people did in the
Citizen Assemblies should be taken as an exercise of the ultimate sovereign
power. If they had risen up in arms and by force deposed the then existing
government and set up a new government in its place, there could not be
the least doubt that their act would be political and not subject to judicial
review but only to the judgment of the same body politic act, in the
context just set forth, is based on realities. If a new government gains
authority and dominance through force, it can be effectively challenged
only by a stronger force; judicial dictum can prevail against it. We do not
see that situation would be any different, as far as the doctrine of judicial
review is concerned, if no force had been resorted to and the people, in
defiance of the existing Constitution but peacefully because of the absence
of any appreciable opposition, ordained a new Constitution and succeeded
in having the government operate under it. Against such a reality there can
be no adequate judicial relief; and so courts forbear to take cognizance of
the question but leave it to be decided through political means.
The logic of the political-question doctrine is illustrated in statement of the
U.S. Supreme Court in a case * relied upon, curiously enough, by the

Solicitor General, who disagrees with the revolutionary government theory
of Senator Tolentino. The case involved the issue of which of two opposing
governments struggling for supremacy in the State of Rhode Island was the
lawful one. The issue had previously come up in several other cases before
the courts of the State, which uniformly held that the inquiry belonged to
the political power and not to the judicial. Commenting on the ruling thus
arrived at, the U.S. Supreme Court said: "And if a State court should enter
upon the inquiry proposed in this case, and should come to the conclusion
that the government under which it acted had been put aside and
displaced by an opposing government, it would cease to be a court, and
incapable of pronouncing a judicial decision upon the question it
undertook to try. If it decides at all as a court, it necessarily affirms the
existence and authority of the government under which it is exercising
judicial power." In other words, since the court would have no choice but
to decide in one way alone in order to be able to decide at all, the question
could not be considered proper for judicial determination.
It should be noted that the above statement from Luther vs. Borden would
be applicable in the cases at bar only on the premise that the ratification of
the Constitution was a revolutionary act and that the government now
functioning it is the product of such revolution. However, we are not
prepared to agree that the premise is justified.
In the first, place, with specific reference to the questioned ratification,
several significant circumstances may be noted. (1) The Citizens Assemblies
were created, according to Presidential Decree No. 86, "to broaden the
base of citizen participation in the democratic process and to afford ample
opportunities for the citizenry to express their views on important national
issues." (2) The President announced, according to the Daily Express of
January 2, 1973, that "the referendum will be in the nature of a loose
consultation with the people." (3) The question, as submitted to them on
the particular point at issue here, was "Do you a approve of the
Constitution?" (4) President Marcos, in proclaiming that the Constitution
had been ratified, stated as follows: "(S)ince the referendum results show
that more than ninety-five (95) per cent of the members of the Barangays
(Citizens Assemblies) are in favor of the new Constitution, the Katipunan ng
mga Barangay has strongly recommended that the new Constitution
should already be deemed ratified by the Filipino people." (5) There was
not enough time for the Citizens Assemblies to really familiarize
themselves with the Constitution, much less with the many other subjects
that were submitted to them. In fact the plebiscite planned for January 15,
1973 under Presidential Decree No. 73 had been postponed to an
indefinite date, the reasons for the postponement being, as attributed to
the President in the newspapers, that "there was little time to campaign
for or against ratification" (Daily Express, Dec. 22, 1972); that he would
base his decision (as to the date, of the plebiscite) on the compliance by
the Commission (on Elections) on the publication requirement of the new
Charter and on the position taken by national leaders" (Daily Express, Dec.
23, 1972); and that "the postponement would give us more time to debate
on the merits of the Charter." (Bulletin Today, Dec. 24, 1972.)
The circumstances above enumerated lead us to the conclusion that the
Citizens Assemblies could not have understood the referendum to be for
the ratification of the Constitution, but only for the expression of their
views on a consultative basis. Indeed, if the expression of those views had
been intended as an act of ratification (or of rejection as a logical corollary)
— there would have been no need for the Katipunan ng mga Barangay to
recommend that the Constitution should already be deemed ratified, for
recommendation imports recognition of some higher authority in whom
the final decision rests.
But then the President, pursuant to such recommendation, did proclaim
that the Constitution had been ratified and had come into effect. The more
relevant consideration, therefore, as far as we can see, should be as to
what the President had in mind in convening the Citizens Assemblies,
submitting the Constitution to them and proclaiming that the favorable
expression of their views was an act of ratification. In this respect
subjective factors, which defy judicial analysis and adjudication, are
necessarily involved.
In positing the problem within an identifiable frame of reference we find
no need to consider whether or not the regime established by President
Marcos since he declared martial law and under which the new
Constitution was submitted to the Citizens Assemblies was a revolutionary
one. The pivotal question is rather whether or not the effectivity of the said
Constitution by virtue of Presidential Proclamation No. 1102, upon the
recommendation of the Katipunan ng mga Barangay, was intended to be
definite and irrevocable, regardless of non-compliance with the pertinent
constitutional and statutory provisions prescribing the procedure for
ratification. We must confess that after considering all the available
evidence and all the relevant circumstances we have found no reasonably
reliable answer to the question. On one hand we read, for instance, the
following public statements of the President:
Speaking about the proclamation of martial law, he said:
I reiterate what I have said in the past: there is no
turning back for our people.
We have committed ourselves to this revolution. We
have pledged to it our future, our fortunes, our lives,
our destiny. We have burned our bridges behind us. Let
no man misunderstand the strength of our resolution.
(A Report to the Nation, Jan. 7, 1973.)
Page 35 of 158
On the occasion of the signing of Proclamation No. 1102 on January 17,
1973, the President said the following, among other things:
... We can, perhaps delimit the power of the people to
speak on legal matters, on justiciable matters, on
matters that may come before the experts and
interpreters of the law. But we cannot disqualify the
people from speaking on what we and the people
consider purely political matters especially those that
affect the fundamental law of the land.
... The political questions that were presented to the
people are exactly those that refer to the form of
government which the people want ... The implications
of disregarding the people's will are too awesome to be
even considered. For if any power in government
should even dare to disregard the people's will there
would be valid ground for revolt.
... Let it be known to everybody that the people have
spoken and they will no longer tolerate any attempt to
undermine the stability of their Republic; they will rise
up in arms not in revolt against the Republic but in
protection of the Republic which they have installed. It
is quite clear when the people say, we ratify the
Constitution, that they mean they will not discard, the
Constitution.
On January 19, 1973 the Daily Express published statement of the
President made the day before, from which the following portion is
quoted:
... the times are too grave and the stakes too high for
us permit the customary concessions to traditional
democratic process to hold back our people's clear and
unequivocal resolve and mandate to meet and
overcome the extraordinary challenges presented by
these extraordinary times.
On the same occasion of the signing of Proclamation No. 1102 the
President made pointed reference to "the demand of some of our citizens
... that when all other measures should fail, that the President be directed
to organize and establish a Revolutionary Government," but in the next
breath added: "... if we do ratify the Constitution, how can we speak of
Revolutionary Government? They cannot be compatible ..." "(I)t is my
feeling," he said, "that the Citizens' Assemblies which submitted this
recommendation merely sought articulate their impatience with the status

quo that has brought about anarchy, confusion and misery to the masses I assure you that I am utilizing this power vested in me
..." The only alternatives which the President clearly implied by the by the Constitution to save the Republic and reform our
foregoing statements were the ratification of the new Constitution and the society...
establishment of a revolutionary government, the latter being
unnecessary, in his opinion, because precisely the Constitution had been I have had to use this constitutional power in order that
ratified. The third obvious alternative was entirely ruled out, namely, a we may not completely lose the civil rights and
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
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.
revolutionary government, because that would be the only other way to
carry out the reforms he had envisioned and initiated — reforms which, in
(Vital Documents, pp. 1-12; emphasis supplied).
all fairness and honesty, must be given credit for the improved quality of
life in its many aspects, except only in the field of civil liberties.
In the report of an interview granted by the President to the Newsweek
If there is any significance, both explicit and implicit, and certainly Magazine (published in the issue of January 29, 1973), the following
unmistakable, in the foregoing pronouncements, it is that the step taken in appears:
connection with the ratification of the Constitution was meant to be
irreversible, and that nothing anyone could say would make the least xxx xxx xxx
difference. And if this is a correct and accurate assessment of the situation,
then we would say that since it has been brought about by political action 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
and dominance, the matter lies beyond the power of judicial review. be in serious trouble if you run into
critical problems with your
On the other hand, by avowals no less significant if not so emphatic in programs?
terms, President Marcos has professed fealty to the Constitution. In
"Today's Revolution: Democracy" he says: R. I have never gotten off the
constitutional track. Everything I am
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
a democratic society, revolution is of necessity, that instead of 18-year-olds voting,
constitutional, peaceful, and legal. we have allowed 15-year-olds the
right to vote. But the 15-year-olds
In his TV address of September 23, 1972, President Marcos told the nation: of today are high-school students, if
not graduates, and they are better
informed than my contemporaries
I have proclaimed martial law in accordance with the
at that age. On the matter of
powers vested in the President by the Constitution of
whether it is constitutional to
the Philippines.
proclaim martial law, it is
constitutional because the
xxx xxx xxx Constitution provides for it in the
event of invasion, insurrection,
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
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
xxx xxx xxx least there is a danger of rebellion
Page 36 of 158
because so many of our soldiers
have been killed. You must
remember this (martial law
provision) was lifted from the
American legislation that was the
fundamental law of our country.
xxx xxx xxx
In the light of this seeming ambivalence, the choice of what course of
action to pursue belongs to the President. We have earlier made reference
to subjective factors on which this Court, to our mind, is in no position to
pass judgment. Among them is the President's own assessment of the will
of the people as expressed through the Citizens Assemblies and of the
importance of the 1973 Constitution to the successful implementation of
the social and economic reforms he has started or envisioned. If he should
decide that there is no turning back, that what the people recommended
through the Citizens Assemblies, as they were reported to him, demand
that the action he took pursuant thereto be final and irrevocable, then
judicial review is out of the question.
In articulating our view that the procedure of ratification that was followed
was not in accordance with the 1935 Constitution and related statutes, we
have discharged our sworn duty as we conceive it to be. The President
should now perhaps decide, if he has not already decided, whether
adherence to such procedure is weighty enough a consideration, if only to
dispel any cloud of doubt that may now and in the future shroud the
nation's Charter.
In the deliberations of this Court one of the issues formulated for
resolution is whether or not the new Constitution, since its submission to
the Citizens Assemblies, has found acceptance among the people, such
issue being related to the political question theory propounded by the
respondents. We have not tarried on the point at all since we find no
reliable basis on which to form a judgment. Under a regime of martial law,
with the free expression of opinions through the usual media vehicles
restricted, we have no means of knowing, to the point of judicial certainty,
whether the people have accepted the Constitution. In any event, we do
not find the issue decisive insofar as our vote in these cases is concerned.
To interpret the Constitution — that is judicial. That the Constitution
should be deemed in effect because of popular acquiescence — that is
political, and therefore beyond the domain of judicial review.
We therefore vote not to give due course to the instant petitions.
BARREDO, J., concurring:

As far as I am concerned, I regard the present petitions as no more than
mere reiterations of the Supplemental Petitions filed by Counsel Lorenzo
M. Tañada on January 15, 1973 in the so called Plebiscite Cases decided by
this Court on January 22, 1978. Of course, there are amplifications of some
of the grounds previously alleged and in the course of the unprecedented
five-day hearing that was held from February 12 to 16 last, more extensive
and illuminating arguments were heard by Us, but, in my estimation, and
with due recognition of the sincerety, brilliance and eloquence of counsels,
nothing more cogent and compelling than what had already been
previously presented by Counsel Tañada is before Us now. Accordingly, I
cannot see any reason why I should change the position I took in regard to
the earlier cases. I reiterate, therefore, the vote I cast when these petitions
were initially considered by the Court; namely, to dismiss them.
In view, however, of the transcendental importance of the issues before
the Court and the significance to our people and in history of the individual
stands of the members of the Court in relation to said issues and to the
final outcome of these cases, and considering that I reserved before the
filing of a more extended opinion, I will take this opportunity to explain
further why I hold that the 1973 Constitution is already in force, if only to
clarify that apart from the people's right of revolution to which I made
pointed reference in my previous opinion, I can see now, after further
reflection, that the vote of the people in the referendum in the Citizens
Assemblies held on January 10 to 15, 1973, upon the result of which
Proclamation 1102 is based, may be viewed more importantly as a political
act than as a purely legal one with the result that such vote to consider the
1973 Constitution as ratified without the necessity of holding a plebiscite in
the form followed in the previous ratification plebiscites in 1935 of the
Constitution itself, 1937 of women's suffrage, 1939 of the amendments to
the Ordinance Appended to the Constitution, 1940 of the re-election of the
President, the bicameral legislature and the Commission on Elections, 1947
of the parity amendment and 1967, rejecting the proposed increase in the
members of the House of Representatives and eligibility of members of
Congress to the Constitutional Convention, may be deemed as a valid
ratification substantially in compliance with the basic intent of Article XV of
the 1935 Constitution. If indeed this explanation may be considered as a
modification of my rationalization then, I wish to emphasize that my
position as to the fundamental issue regarding the enforceability of the
new Constitution is even firmer now than ever before. As I shall elucidate
anon, paramount considerations of national import have led me to the
conviction that the best interests of all concerned would be best served by
the Supreme Court holding that the 1973 Constitution is now in force, not
necessarily as a consequence of the revolutionary concept previously
suggested by me, but upon the ground that as a political, more than as a
legal, act of the people, the result of the referendum may be construed as
a compliance with the substantiality of Article XV of the 1935 Constitution.
I of the writ of habeas corpus insofar as activities connected with the
The facts that gave rise to these proceedings are historical and well known.
Generally, they may be taken judicial notice of. They revolve around the
purported ratification of the Constitution of 1973 declared in Proclamation
1102 issued by the President on January 17, 1973.
Pursuant to a joint resolution of the Congress sitting as a constituent
assembly approved on March 16, 1967, delegates to a constitutional
convention to propose amendments to the Constitution of 1935 were
elected in accordance with the implementing law, Republic Act 6132, on
November 10, 1970. Known as the Constitutional Convention of 1971, the
assembly began its sessions on June 1, 1971. After encountering a lot of
difficulties, due to bitter rivalries over important positions and committees
and an incomprehensible fear of overconcentrating powers in their
officers, the delegates went about their work in comparatively slow pace,
and by the third quarter of 1972 had finished deliberations and second-
reading voting only on an insignificant number of proposals — until
September 21, 1972, when the President, not altogether unexpectedly, yet
abruptly, issued Proclamation 1081 declaring martial law throughout the
country. An attempt was made to have the Convention recessed until after
the lifting of martial law, and not long after the motion of Delegate Kalaw
to such effect was turned down, the activities within the assembly shifted
to high gear. As if unmindful of the arrest and continued detention of
several of its members, the convention gathered swift momentum in its
work, and on November 30, 1972, it approved by overwhelming vote the
draft of a complete constitution, instead of mere specific amendments of
particular portions of the Constitution of 1935. Needless to say, before
martial law was declared, there was full and unlimited coverage of the
workings in the convention by the mass media. At the same time, public
debates and discussions on various aspects of proposed amendments were
not uncommon.
Earlier, on November 22, 1972, the Convention had Resolution No. 5843
proposing "to President Ferdinand Marcos that a decree be issued calling a
plebiscite for ratification of the proposed new Constitution on appropriate
date as he shall determine and providing for necessary funds therefor."
Acting under this authority, December 1, 1972, the President issued
Presidential Decree No. 73 submitting the draft constitution for ratification
by the people at a plebiscite set for January 15, 1973. This order contained
provisions more or less similar to the plebiscite laws passed by Congress
relative to the past plebiscites held in connection with previous proposed
amendments.
In connection with the plebiscite thus contemplated, General Order No. 17
was issued ordering and enjoining the authorities to allow and encourage
public and free discussions on proposed constitution. Not only this,
subsequently, under date of December 17, 1972, the President ordered the
suspension the effects of martial law and lifted the suspension of privilege
Page 37 of 158
ratification of the draft constitution were concerned. These two orders
were not, however, to last very long. On January 7, 1973, the President,
invoking information related to him that the area of public debate and
discussion had opened by his previous orders was being taken advantage
of by subversive elements to defeat the purposes for which they were
issued and to foment public confusion, withdrew said orders and enjoined
full and stricter implementation of martial law.
In the meantime, the President had issued on December 3, 1972
Presidential Decree No. 86 creating Citizens Assemblies "so as to afford
ample opportunities for the citizenry to express their views on important
national issues" and one of the questions presented to said assemblies
was: "Do you like the plebiscite on the proposed Constitution to be held
later" So, the same order of January 7, 1973, General Order No. 20, the
President ordered, "that the plebiscite scheduled to be held January 15,
1973, be postponed until further notice".
In the meanwhile also, on January 5, 1973, the President issued
Presidential Decree, No. 86-A providing as follows:
PRESIDENTIAL DECREE NO. 86-A
STRENGTHENING AND DEFINING THE ROLE OF
BARANGAYS (CITIZENS ASSEMBLIES)
WHEREAS, on the basis of preliminary and initial
reports from the field as gathered from barangays
(citizens assemblies) that have so far been established,
the people would like to decide for themselves
questions or issues, both local and national, affecting
their day-to-day lives and their future;
WHEREAS, the barangays (citizens assemblies) would
like themselves to be the vehicle for expressing the
views of the people on important national issues;
WHEREAS, such barangays (citizens assemblies) desire
that they be given legal status and due recognition as
constituting the genuine, legitimate and valid
expression of the popular will; and
WHEREAS, the people would like the citizens
assemblies to conduct immediately a referendum on
certain specified questions such as the ratification of
the new Constitution, continuance of martial law, the
convening of Congress on January 22, 1973, and the

elections in November 1973 pursuant to the 1935
Constitution.
NOW, THEREFORE, I, FERDINAND E. MARCOS, President
of the Philippines, by virtue of the powers vested in me
by the Constitution as Commander-in-Chief of all
Armed Forces of the Philippines, do hereby declare as
part of the law of the land the following:
1. The present barangays (citizens assemblies) are
created under Presidential Decree No. 86 dated
December 31, 1972, shall constitute the base for citizen
participation in governmental affairs and their
collective views shall be considered in the formulation
of national policies or programs and, wherever
practicable, shall be translated into concrete and
specific decision;
2. Such barangays (citizens assemblies) shall consider
vital national issues now confronting the country, like
the holding of the plebiscite on the new Constitution,
the continuation of martial rule, the convening of
Congress on January 22, 1973, and the holding of
elections in November 1973, and others in the future,
which shall serve as guide or basis for action or decision
by the national government;
3. The barangays (citizens assemblies) shall conduct
between January 10 and 15, 1973, a referendum on
important national issues, including those specified in
paragraph 2 hereof, and submit results thereof to the
Department of Local Governments Community
Development immediately thereafter, pursuant to
express will of the people as reflected in the reports
gathered from the many thousands of barangays
(citizens assemblies) throughout the country.
4. This Decree shall take effect immediately.
Done in the City of Manila, this 5th day of January, in
the year of Our Lord, nineteen hundred and seventy
three.
And on January 7, 1973, this was followed by Presidential Decree No. 86-B
reading thus:
PRESIDENTIAL DECREE NO. 86-B
DEFINING FURTHER THE ROLE OF BARANGAYS (CITIZENS
ASSEMBLIES)
WHEREAS, since their creation pursuant to Presidential
Decree No. 86 dated December 31, 1972, the
Barangays (Citizens Assemblies) have petitioned the
Office of the President to submit them for resolution
important national issues;
WHEREAS, one of the questions persistently mentioned
refers to the ratification of the Constitution proposed
by the 1971 Constitutional Convention;
WHEREAS, on the basis of the said petitions, it is
evident that the people believe that the submission of
the proposed Constitution to the Citizens Assemblies or
Barangays should be taken as a plebiscite in itself in
view of the fact that freedom of debate has always
been limited to the leadership in political, economic
and social fields, and that it is now necessary to bring
this down to the level of the people themselves
through the Barangays or Citizens Assemblies;
NOW THEREFORE, I, FERDINAND E. MARCOS, President
of the Philippines, by virtue of the powers in me vested
by the Constitution, do hereby order that important
national issues shall from time to time be referred to
the Barangays (Citizens Assemblies) for resolution in
accordance with Presidential Decree No. 86-A dated
January 5, 1973 and that the initial referendum shall
include the matter of ratification of the Constitution
proposed by the 1971 Constitutional Convention.
The Secretary of the Department of Local Governments
and Community Development shall insure the
implementation of this Order.
Done in the City of Manila, this 7th day of January in
the year of Our Lord, nineteen hundred and seventy-
three.
And so it was that by January 10, 1973, when the Citizens Assemblies thus
created started the referendum which was held from said date to January
15, 1973, the following questions were submitted to them:
(1) Do you like the New Society?
Page 38 of 158
(2) Do you like the reforms under martial law?
(3) Do you like Congress again to hold sessions?
(4) Do you like the plebiscite to be held later?
(5) Do you like the way President Marcos is running the
affairs of the government?.
but on January 11, 1973, six questions were added as follows:
(1) Do you approve of the citizens assemblies as the
base of popular government to decide issues of
national interests?
(2) Do you approve of the New Constitution?
(3) Do you want a plebiscite to be called to ratify the
new Constitution?
(4) Do you want the elections to be held in November,
1973 in accordance with the provisions of the 1935
Constitution?
(5) If the elections would not be held, when do you
want it to be called?
(6) Do you want martial law to continue?
It is not seriously denied that together with the question the voters were
furnished "comments" on the said questions more or less suggestive of the
answer desired. It may assumed that the said "comments" came from
official sources, albeit specifically unidentified. As petitioners point out, the
most relevant of these "comments" were the following:
COMMENTS ON
xxx xxx xxx
QUESTION No. 2
But we do not want the Ad Interim
Assembly to be convoke. Or if it is
to be convened at all, it should not
be done so until after at least seven

(7) years from the approval of the
New Constitution by the Citizens
Assemblies.
QUESTION No. 3
The vote of the Citizens Assemblies
should already be considered the
plebiscite on the New Constitution.
If the Citizens Assemblies approve
of the new Constitution then the
new Constitution should be
deemed ratified.
The Solicitor General claims, and there seems to be showing otherwise,
that the results of the referendum were determined in the following
manner:
Thereafter, the results of the voting were collated and
sent to the Department of Local Governments. The
transmission of the results was made by telegram,
telephone, the provincial government SSB System in
each province connecting all towns; the SSB
communication of the PACD connecting most
provinces; the Department of Public Information
Network System; the Weather Bureau Communication
System connecting all provincial capitals and the
National Civil Defense Network connecting all
provincial capitals. The certificates of results were then
flown to Manila to confirm the previous figures
received by the aforementioned means of
transmission. The certificates of results tallied with the
previous figures taken with the exception of few cases
of clerical errors.
The Department adopted a system of regionalizing the
receiving section of the Citizens Assemblies operation
at the Department wherein the identity of the barrio
and the province was immediately given to a staff in
charge of each region. Every afternoon at 2:00 o'clock,
the 11 regions submitted the figures they received
from the field to the central committee to tabulate the
returns. The last figures were tabulated at 12 midnight
of January 16, 1973 and early morning of January 17,
1973 and were then communicated to the President by
the Department of Local Governments.
The development culminated in the issuance by the President of
Proclamation 1102 on January 17, 1973. Said proclamation reads:
PROCLAMATION NO. 1102 ANNOUNCING THE
RATIFICATION BY THE FILIPINO PEOPLE OF THE
CONSTITUTION PROPOSED BY THE 1971
CONSTITUTIONAL CONVENTION.
WHEREAS, the Constitution proposed by the nineteen
hundred seventy-one Constitutional Convention is
subject to ratification by the Filipino people;
WHEREAS, Citizens Assemblies were created in barrios
in municipalities and in districts/wards in chartered
cities pursuant to Presidential Decree No. 6, dated
December 31, 1972, composed of all persons who are
residents of the barrio, district or ward for at least six
months, fifteen years of age or over, citizens of the
Philippines and who are registered in the list of Citizen
Assembly members kept by the barrio, district or ward
secretary;
WHEREAS, the said Citizens Assemblies were establish
precisely to broaden the base of citizen participation in
the democratic process and to afford ample
opportunity for the citizen to express their views on
important national issues;
WHEREAS, responding to the clamor of the people an
pursuant to Presidential Decree No. 86-A, dated
January 5, 1973, the following questions were posed
before Citizens' Assemblies or Barangays: Do you
approve of the New Constitution? Do you still want a
plebiscite to be called to ratify the new Constitution?
WHEREAS, fourteen million nine hundred seventy-six
thousand five hundred sixty one (14,976,561) members
of all the Barangays (Citizens Assemblies) voted for the
adoption of the proposed Constitution, as against
seven hundred forty-three thousand eight hundred
sixty nine (743,869) who voted for its rejection; while
on the question as to whether or not the people would
still like a plebiscite to be called to ratify the new
Constitution fourteen million two hundred ninety-eight
thousand eight hundred fourteen (14,298,814)
answered that there was no need for plebiscite and
Page 39 of 158
that the vote of the Barangays (Citizens Assemblies)
should be considered as a vote in a plebiscite;
WHEREAS, since the referendum results show that
more than ninety-five (95) percent of the members of
the Barangays (Citizen Assemblies) are in favor of the
New Constitution, the Katipunan ng Mga Barangay has
strongly recommended that the new Constitution
should already be deemed ratified by the Filipino
people;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President
of the Philippines, by virtue of the powers in me vested
by the Constitution, do hereby certify and proclaim that
the Constitution proposed by the nineteen hundred
and seventy-one (1971) Constitutional Convention has
been ratified by an overwhelmingly majority of all of
the votes cast by the members of all the Barangays
(Citizens Assemblies) throughout the Philippines, and
has thereby come into effect.
IN WITNESS WHEREOF, I have hereunto set my hand
and caused the seal of the Republic of the Philippines
to be affixed.
Done in the City of Manila, this 17th day of January, in
the year of Our Lord, nineteen hundred and seventy-
three.
The first attempt to question the steps just enumerated taken by the
President was in the so-called Plebiscite Cases, ten in number, which were
filed by different petitioners during the first half of December 1972.1 Their
common target then was Presidential Decree No. 73, but before the said
cases could be decided, the series of moves tending in effect to make them
moot and academic insofar as they referred exclusively to the said
Presidential Decree began to take shape upon the issuance of Presidential
Decree No. 86-A, quoted above. And when Presidential Decree No. 86-B,
also above quoted, was issued and the six additional questions which were
first publicized on January 11, 1973 were known, together with the
"comments", petitioners sensed that a new and unorthodox procedure was
being adopted to secure approval by the people of the new Constitution,
hence Counsel Tañada, not being satisfied with the fate of his urgent
motion for early decision of the above ten cases dated January 12, 1973,
filed on January 15, 1973, his supplemental motion seeking the prohibition
against and injunction of the proceedings going on. Principal objective was
to prevent that the President be furnished the report of the results of the
referendum and thereby disable him from carrying out what petitioners
were apprehensively foreseeing would be done — the issuance of some

kind of proclamation, order or decree, declaring that the new Constitution
had been ratified. Reacting swiftly, the Court resolved on the same day,
January 15, which was Monday, to consider the supplemental motion as a
supplemental petition and to require the respondents to answer the same
the next Wednesday, January 17th, before the hour of the hearing of the
petition which set for 9:30 o'clock in the morning of that day. The details
what happened that morning form part of the recital of facts the decision
rendered by this Court in the ten cases on January 22, 1973 and need not
be repeated here. Suffice it to state no that before the hearing could be
closed and while Counsel Tañada was still insisting on his prayer for
preliminary injunction or restraining order, the Secretary of Justice arrived
and personally handed to the Chief Justice a copy Proclamation 1102 which
had been issued at about 11:00 o'clock that same morning. In other words,
the valiant and persistent efforts of petitioners and their counsels were
overtaken by adverse developments, and in the mind of the majority of the
members of the Court, the cases had become academic. For my part, I took
the view that even on the basis of the supplemental petition and the
answer thereto filed by respondents, the Court could already decide on the
fundamental issue of the validity Proclamation 1102, as Justices Zaldivar,
Antonio and Esguerra also believed, inasmuch as Counsel Tañada's
pleading and argument had anticipated its issuance, but the majority felt it
was not ready to resolve the matter, for lack, according them, of full
ventilation, and so, the decision reserved petitioners the filing of the
"appropriate" cases, evidently, the present ones.
II
At the threshold, I find myself confronted by a matter which, although
believed to be inconsequential by my learned brethren, I strongly feel
needs special attention. I refer to the point raised by Counsel Arturo M.
Tolentino for respondent Gil J. Puyat and Jose Roy, who have been sued as
President and President Pro Tempore of the Senate, to the effect that
change in the composition of the Supreme Court provided for the 1973
Constitution, from the 11-man tribunal under the 1935 Constitution to a
15-man Court, makes of these cases which were filed after January 17,
1973 the date when Proclamation 1102 declared the new Constitution as
ratified, political nature and beyond our jurisdiction. The main
consideration submitted in this connection is that inasmuch as the number
votes needed for a decision of this Court has been increased from six to
eight in ordinary cases and from eight to ten for the declaration of
unconstitutionality of a treaty, executive agreement 2 or law, the Court
would have to resolve first as a prejudicial question whether the Court is
acting in these cases as the 15-man or the 11-man Court, in which event, it
would be faced with the dilemma that if it acts either as the former or as
the latter, it would be prejudging the very matter in issue one way or the
other, and, in effect, it would be choosing between two constitutions,
which is a political determination not within the Court's competence.
While I agree that the problem is at first blush rather involved, I do not
share the view that the premises laid down by counsel necessarily preclude
this Court from taking a definite stand on whether the Court is acting in
these cases as the 15-Man or the 11-man Court. I feel very strongly that
the issue should not be ignored or dodged, if only to make the world know
that the Supreme Court of the Philippines is never incognizant of the
capacity in which it is acting, much less lacking in courage or wisdom to
resolve an issue that relates directly to its own composition. What a
disgrace it would be to admit that this Supreme Court does not know, to
use a common apt expression, whether it is fish or fowl. Withal, scholars
and researchers who might go over our records in the future will inevitably
examine minutely how each of us voted and upon what considerations we
have individually acted, and, indeed, doubts may arise as to whether or
not, despite the general result we might announce, there had been the
requisite number of votes for a valid collegiate action.
For instance, it may be argued that the present cases do not involve an
issue of unconstitutionality, hence, if we are acting as the 11-man Court,
only six votes would suffice to declare Proclamation 1102 ineffective, and if
upon analysis of our respective opinions it should be inferable therefrom
that six of us have considered the matter before the Court as justiciable
and at the same time have found the procedure of ratification adopted in
Presidential Decrees 86-A and 86-B and related orders of the President as
not being in conformity with Article XV of the old Constitution, a cloud
would exist as to efficacy of the dispositive portion of Our decision dismiss
these cases, even if we have it understood that by the vote of justices in
favor of such dismissal, We intended to mean the implementation or
enforcement of the new Constitution now being done could continue.
Be that as it may, I am against leaving such an important point open to
speculation. By nature I am averse to ambiguity and equivocation and as a
member of the Supreme Court, last thing I should knowingly countenance
is uncertainty as to the juridical significance of any decision of the Court
which is precisely being looked upon as the haven in which doubts are
supposed to be authoritatively dispelled. Besides, from very nature of
things, one thing is indubitably beyond dispute — we cannot act in both
capacities of a 15-man and an 11-man Court at the same time, in like
manner that it is inconceivable that the 1935 and 1973 Constitution can be
considered by Us both in force. Our inescapable duty is to make a choice
between them, according to what law and other considerations inherent to
our function dictate. I cannot bear the thought that someone may
someday say that the Supreme Court of the Philippines once decided a
case without knowing the basis of its author to act or that it was ever
wanting in judicial courage to define the same.
Accordingly, with full consciousness of my limitations but compelled by my
sense of duty and propriety to straighten out this grave of issue touching
on the capacity in which the Court acting in these cases, I hold that we
Page 40 of 158
have no alternative but adopt in the present situation the orthodox rule
that when validity of an act or law is challenged as being repugnant
constitutional mandate, the same is allowed to have effect until the
Supreme Court rules that it is unconstitutional. Stated differently, We have
to proceed on the assumption that the new Constitution is in force and
that We are acting in these cases as the 15-man Supreme Court provided
for there Contrary to counsel's contention, there is here no prejudgment
for or against any of the two constitutions. The truth of matter is simply
that in the normal and logical conduct governmental activities, it is neither
practical nor wise to defer the course of any action until after the courts
have ascertained their legality, not only because if that were to be the rule,
the functioning of government would correspondingly be undesirably
hesitative and cumbersome, but more importantly, because the courts
must at the first instance accord due respect to the acts of the other
departments, as otherwise, the smooth running of the government would
have to depend entirely on the unanimity of opinions among all its
departments, which is hardly possible, unless it is assumed that only the
judges have the exclusive prerogative of making and enforcing the law,
aside from being its sole interpreter, which is contrary to all norms of
juridical and political thinking. To my knowledge, there is yet no country in
the world that has recognized judicial supremacy as its basic governmental
principle, no matter how desirable we might believe the idea to be.
Indeed, it is not hard to visualize the difficulty if not absurdity of Our acting
on the assumption that this Court is still functioning under the 1935
Constitution. It is undeniable that the whole government, including the
provincial, municipal and barrio units and not excluding the lower courts
up to the Court of Appeals, is operating under the 1973 Constitution.
Almost daily, presidential orders and decrees of the most legislative
character affecting practically every aspect of governmental and private
activity as well as the relations between the government and the citizenry
are pouring out from Malacañang under the authority of said Constitution.
On the other hand, taxes are being exacted and penalties in connection
therewith are being imposed under said orders and decrees. Obligations
have been contracted and business and industrial plans have been and are
being projected pursuant to them. Displacements of public officials and
employees in big numbers are going on in obedience to them. For the ten
justices of the Supreme Court to constitute an island of resistance in the
midst of these developments, which even unreasoning obstinacy cannot
ignore, much less impede, is unimaginable, let alone the absurd and
complicated consequences such a position entails in the internal workings
within the judiciary amount its different components, what with the lower
courts considering such orders and decrees as forming part of the law of
the land in making their orders and decisions, whereas the Supreme Court
is holding, as it were, their effectivity at bay if it is not being indifferent to
or ignoring them.

It is suggested that the President, being a man of law, committed to abide
by the decision of the Supreme Court, and if the Court feels that it cannot
in the meantime consider the enforcement of the new Constitution, he can
wait for its decision. Accepting the truth of this assertion, it does
necessarily follow that by this attitude of the President, considers the
Supreme Court as still operating under the Constitution. Quite on the
contrary, it is a fact that he has given instructions for the payment of the
justices in accordance with the rate fixed in the New Constitution. Not only
that, official alter ego, the Secretary of Justice, has been shoving this Court,
since January 18, 1973, all matters related to the administrative
supervision of the lower courts which by the new charter has been
transferred from the Department of Justice to the Supreme Court, and as
far as I know, President has not countermanded the Secretary's steps in
that direction. That, on the other hand, the President has not augmented
the justices of the Court to complete the prescribed number of fifteen is, in
my appraisal, of no consequence considering that with the presence of ten
justices who are the Court now, there is a working quorum, and the
addition of new justices cannot in anyway affect the voting on the
constitutional questions now before Us because, while there sufficient
justices to declare by their unanimous vote illegality of Proclamation 1102,
the votes of the justices to added would only be committed to upholding
the same, since they cannot by any standard be expected to vote against
legality of the very Constitution under which they would be appointed.
Moreover, what makes the premise of presumptive valid preferable and,
even imperative, is that We are dealing here with a whole constitution that
radically modifies or alters only the form of our government from
presidential parliamentary but also other constitutionally institutions vitally
affecting all levels of society. It is, to mind, unrealistic to insist on that,
fundamentally, the 1973 Constitution is the same 1935 Constitution, with a
few improvements. A cursory perusal of the former should convince
anyone that it is in essence a new one. While it does retain republicanism
as the basic governmental tenet, the institutional changes introduced
thereby are rather radical and its social orientation is decidedly more
socialistic, just as its nationalistic features are somewhat different in
certain respects. One cannot but note that the change embraces practically
every part of the old charter, from its preamble down to its amending and
effectivity clauses, involving as they do the statement of general principles,
the citizenship and suffrage qualifications, the articles on the form of
government, the judiciary provisions, the spelling out of the duties and
responsibilities not only of citizens but also of officers of the government
and the provisions on the national economy as well as the patrimony of the
nation, not to mention the distinctive features of the general provisions.
What is more, the transitory provisions notably depart from traditional and
orthodox views in that, in general, the powers of government during the
interim period are more or less concentrated in the President, to the
extent that the continuation or discontinuance of what is now practically a
one-man-rule, is even left to his discretion. Notably, the express ratification
of all proclamations, orders, decrees and acts previously issued or done by
the President, obviously meant to encompass those issued during martial
law, is a commitment to the concept of martial law powers being
implemented by President Marcos, in defiance of traditional views and
prevailing jurisprudence, to the effect that the Executive's power of
legislation during a regime of martial law is all inclusive and is not limited
to the matters demanded by military necessity. In other words, the new
constitution unlike any other constitution countenances the institution by
the executive of reforms which normally is the exclusive attribute of the
legislature.
Withal, the best proofs that by its expressed and implied intent, the
Constitution of 1973 is a new one, are that (1) Section 16 of its Article XVII
which provides that this constitution shall "supersede the Constitution of
nineteen hundred and thirty-five and all amendments thereto" and (2) its
transitory provisions expressly continue the effectivity of existing laws,
offices and courts as well as the tenure of all incumbent officials, not
adversely affected by it, which would have been unnecessary if the old
constitution were being merely amended.
The new Constitution, in its Section 10, Article XVII, provides that "(T)he
incumbent members of the Judiciary (which include the Chief Justice and
Associate Justices of Supreme Court) may continue in office (under the
constitution) until they reach the age of seventy years, etc." By virtue of
the presumptive validity of the new charter, all of form part of the 15-man-
Court provided for therein correspondingly, We have in legal
contemplation, ceased in the meanwhile to be members of the 11-man-
Court in the 1935 Constitution. Should the Court finally decide that the
Constitution is invalid, then We would automatically revert to our positions
in the 11-man- Court, otherwise, We would just continue to be in our
membership in the 15-man-Court, unless We feel We cannot in conscience
accept the legality of existence. On the other hand, if it is assumed that We
are the 11-man-Court and it happens that Our collective decision is in favor
of the new constitution, it would be problematical for any dissenting justice
to consider himself as included automatically in the 15-man-Court, since
that would tantamount to accepting a position he does not honestly
believe exists.
III
In brief, the main contention of the petitioners is that Proclamation 1102 is
invalid because the ratification of the 1973 Constitution it purports to
declare as having taken place as a result of the referendum above-referred
to is ineffective since it cannot be said on the basis of the said referendum
that said Constitution has been "approved by a majority of the votes cast at
an election" in the manner prescribed by Article XV the Constitution of
1935. More specifically, they maintain that the word "election" in the said
Article has already acquired a definite accepted meaning out of the
consistent holding in the past of ratification plebiscites, and accordingly, no
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other form of ratification can be considered contemplated by the framers
of the Old Constitution than that which had been followed 1935, 1937,
1939, 1940, 1946 and 1967, the last three or four which were held under
the supervision of the Commission on Elections. Furthermore, they
emphatically deny the veracity of the proclaimed results of the referendum
because, according to them the referendum was a farce and its results
were manufactured or prefabricated, considering that Mr. Francisco Cruz,
who is supposed to have submitted the final report to the President, which
served as basis for Proclamation 1102, had no official authority to render
the same, and it is inconceivable and humanly impossible for anyone to
have been able to gather, tabulate and canvass the 15 million votes
allegedly reported within the short period of time employed. Of course,
they also contend that in any event, there was no proper submission
because martial law per se creates constructive duress which deprives the
voters of the complete freedom needed for the exercise of their right of
choice and actually, there was neither time nor opportunity for real debate
before they voted.
On the other hand, the position of the Solicitor General as counsel for the
respondents is that the matter raised in the petitions is a political one
which the courts are not supposed to inquire into, and, anyway, there has
been a substantial compliance with Article XV of the 1935 Constitution,
inasmuch as, disregarding unessential matters of form, the undeniable fact
is that the voting in the referendum resulted in the approval by the people
of the New Constitution.
I need not dwell at length on these variant positions of the parties. In my
separate opinion in the Plebiscite Cases, I already made the observation
that in view of the lack of solemnity and regularity in the voting as well as
in the manner of reporting and canvassing conducted in connection with
the referendum, I cannot say that Article XV of the Old Constitution has
been complied with, albeit I held that nonetheless, the Constitution of
1973 is already in force. In order, however, to make myself clearer on some
relevant points, I would like to add a few considerations to what I have
already said in the former cases.
In my opinion in those cases, the most important point I took into account
was that in the face of the Presidential certification through Proclamation
1102 itself that the New Constitution has been approved by a majority of
the people and having in mind facts of general knowledge which I have
judicial notice of, I am in no position to deny that the result of the
referendum was as the President had stated. I can believe that the figures
referred to in the proclamation may not accurate, but I cannot say in
conscience that all of them are manufactured or prefabricated, simply
because I saw with own eyes that people did actually gather and listen
discussions, if brief and inadequate for those who are abreast of current
events and general occurrences, and that they did vote. I believe I can
safely say that what I have seen have also been seen by many others

throughout the country and unless it can be assumed, which honestly, I do
not believe to be possible, that in fact there were actually no meetings held
and no voting done in more places than those wherein there were such
meetings and votings, I am not prepared to discredit entirely the
declaration that there was voting and that the majority of the votes were
in favor of the New Constitution. If in fact there were substantially less
than 14 million votes of approval, the real figure, in my estimate, could still
be significant enough and legally sufficient to serve as basis for a valid
ratification.
It is contended, however, that the understanding was that the referendum
among the Citizens Assemblies was to be in the nature merely of a loose
consultation and not an outright submission for purposes of ratification. I
can see that at the outset, when the first set of questions was released,
such may have been the idea. It must not be lost sight of, however, that if
the newspaper reports are to be believed, and I say this only because
petitioners would consider the newspapers as the official gazettes of the
administration, the last set of six questions were included precisely
because the reaction to the idea of mere consultation was that the people
wanted greater direct participation, thru the Citizens Assemblies, in
decision-making regarding matters of vital national interest. Thus, looking
at things more understandingly and realistically the two questions
emphasized by counsel, namely, (1) Do yo approve of the New
Constitution? and (2) Do you want plebiscite to be called to ratify the new
Constitution? should be considered no longer as loose consultations but as
direct inquiries about the desire of the voters regarding the matters
mentioned. Accordingly, I take it that if the majority had expressed
disapproval of the new Constitution, the logical consequence would have
been the complete abandonment of the idea of holding any plebiscite at
all. On the other hand, it is very plain to see that since the majority has
already approved the new Constitution, a plebiscite would be superfluous.
Clear as these rationalizations may be, it must have been thought that if
the holding of a plebiscite was to be abandoned, there should be a direct
and expressed desire of the people to such effect in order to forestall as
much as possible any serious controversy regarding the non-holding of the
plebiscite required by the letter of Section 16 of Article XVII, the effectivity
clause, of the new Constitution. Oddly enough, the "comments"
accompanying the questions do strongly suggest this view. And as it turned
out, the majority found no necessity in holding a plebiscite.
In connection with the question, Do you approve of the New Constitution?
capital is being made of the point that as so framed, the thrust of the said
question does not seek an answer of fact but of opinion. It is argued that it
would have been factual were it worded categorically thus — Do you
approve the New Constitution? The contention would have been weighty
were it not unrealistic. I remember distinctly that the observation
regarding the construction of the subject question was not originally made
by any of the talented counsels for petitioners. It came from Mr. Justice
Fred Ruiz Castro whose mastery of the English language can rightly be the
cause of envy of even professors of English. None of the other members of
the Court, as far as I can recall, ever noticed how the said question is
phrased, or if anyone of Us did, I am not aware that he gave it more than
passing attention. What I mean is that if neither any of the distinguished
and learned counsels nor any member of the Court understood the said
question otherwise than calling for a factual answer instead of a mere
opinion, how could anyone expect the millions of unlettered members of
the Citizens Assemblies to have noticed the point brought out by Justice
Castro? Truth to tell, I myself did not realize the difference until Justice
Castro gave it emphasis. Besides, reading the question in the light of the
accompanying "comment" corresponding to it in particular, I am certain
that any one who answered the same understood it in no other sense than
a direct inquiry as to whether or not, as a matter of fact, he approves the
New Constitution, and naturally, affirmative answer must be taken as a
categorical vote of approval thereof, considering, particularly, that
according to the reported result of the referendum said answer was even
coupled with the request that the President defer the convening of the
Interim National Assembly.
It is also contended that because of this reference in answer to that
question to the deferment of the convening of the interim assembly, the
said answer is at best a conditional approval not proper nor acceptable for
purposes of ratification plebiscite. The contention has no basis. In interest
of accuracy, the additional answer proposed in pertinent "comment" reads
as follows: "But we do not want Ad Interim Assembly to be convoked etc."
On the assumption that the actual answer, as reported, was of similar
tenor, it is not fair to ascribe to it the imposition of a condition. At most,
the intention is no more than a suggestion or a wish.
As regards said "comments", it must be considered that a martial law was
declared, the circumstances surrounding making of the Constitution
acquired a different and more meaningful aspect, namely, the formation of
a new society. From the point of view of the President and on the basis of
intelligence reports available to him, the only way to meet situation
created by the subversive elements was to introduce immediately effective
reforms calculated to redeem the people from the depth of retrogression
and stagnation caused by rampant graft and corruption in high places,
influence peddling, oligarchic political practices, private armies, anarchy,
deteriorating conditions of peace and order, the so inequalities widening
the gap between the rich and the poor, and many other deplorable long
standing maladies crying for early relief and solution. Definitely, as in the
case of rebellious movement that threatened the Quirino Administration,
the remedy was far from using bullets alone. If a constitution was to be
approved as an effective instrument towards the eradication of such grave
problems, it had to be approved without loss of time and sans the
cumbersome processes that, from the realistic viewpoint, have in the past
obstructed rather than hastened the progress of the people. Stated
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otherwise, in the context of actualities, the evident objective in having a
new constitution is to establish new directions in the pursuit of the
national aspirations and the carrying out of national policies. Only by
bearing these considerations in mind can the "comments" already referred
to be properly appreciated. To others said "comments" may appear as
evidence of corruption of the will of those who attended the assemblies,
but actually, they may also be viewed in the same light as the sample
ballots commonly resorted to in the elections of officials, which no one can
contend are per se means of coercion. Let us not forget that the times are
abnormal, and prolonged dialogue and exchange of ideas are not generally
possible, nor practical, considering the need for faster decisions and more
resolute action. After all voting on a whole new constitution is different
from voting on one, two or three specific proposed amendments, the
former calls for nothing more than a collective view of all the provisions of
the whole charter, for necessarily, one has to take the good together with
the bad in it. It is rare for anyone to reject a constitution only because of a
few specific objectionable features, no matter how substantial, considering
the ever present possibility that after all it may be cured by subsequent
amendment. Accordingly, there was need to indicate to the people the
paths open to them in their quest for the betterment of their conditions,
and as long as it is not shown that those who did not agree to the
suggestions in the "comments" were actually compelled to vote against
their will, I am not convinced that the existence of said "comments" should
make any appreciable difference in the court's appraisal of the result of the
referendum.
I must confess that the fact that the referendum was held during martial
law detracts somehow from the value that the referendum would
otherwise have had. As I intimated, however, in my former opinion, it is
not fair to condemn and disregard the result of the referendum barely
because of martial law per se. For one thing, many of the objectionable
features of martial law have not actually materialized, if only because the
implementation of martial law since its inception has been generally
characterized by restraint and consideration, thanks to the expressed
wishes of the President that the same be made "Philippine style", which
means without the rigor that has attended it in other lands and other
times. Moreover, although the restrictions on the freedom of speech, the
press and movement during martial law do have their corresponding
adverse effects on the area of information which should be open to a
voter, in its real sense what "chills" his freedom of choice and mars his
exercise of discretion is suspension of the privilege of the writ of habeas
corpus. The reason is simply that a man may freely and correctly vote even
if the needed information he possesses as to the candidates or issues being
voted upon is more or less incomplete, but when he is subject to arrest and
detention without investigation and without being informed of the cause
thereof, that is something else which may actually cause him to cast a
captive vote. Thus it is the suspension of the writ of habeas
corpus accompanying martial law that can cause possible restraint on the
freedom choice in an election held during martial law. It is a fact, however,

borne by history and actual experience, that in the Philippines, the
suspension of the privilege of the writ habeas corpus has never produced
any chilling effect upon the voters, since it is known by all that only those
who run afoul the law, saving inconsequential instances, have any cause
for apprehension in regard to the conduct by them of the normal activities
of life. And so it is recorded that in the elections 1951 and 1971, held while
the privilege of writ of habeas corpus was under suspension, the Filipino
voters gave the then opposition parties overwhelming if not sweeping
victories, in defiance of the respective administrations that ordered the
suspensions.
At this juncture, I think it is fit to make it clear that I am not trying to show
that the result of the referendum may considered as sufficient basis for
declaring that the New Constitution has been ratified in accordance with
the amending clause of the 1935 Constitution. I reiterate that in point of
law, I find neither strict nor substantial compliance. The foregoing
discussion is only to counter, if I may, certain impression regarding the
general conditions obtaining during and in relation to the referendum
which could have in one way or another affected the exercise of the
freedom of choice and the use of discretion by the members of the Citizens
Assemblies, to the end that as far as the same conditions may be relevant
in my subsequent discussions of the acceptance by the people of the New
Constitution they may also be considered.
IV
It is my sincere conviction that the Constitution of 1973 has been accepted
or adopted by the people. And on this premise, my considered opinion is
that the Court may no longer decide these cases on the basis of purely
legal considerations. Factors which are non-legal but nevertheless
ponderous and compelling cannot be ignored, for their relevancy is
inherent in the issue itself to be resolved.
In my opinion in the Plebiscite Cases, I joined my colleagues in holding that
the question of whether or not there was proper submission under
Presidential Decree No. 73 is justiciable, and I still hold that the propriety of
submission under any other law or in any other form is constitutionally a fit
subject for inquiry by the courts. The ruling in the decided cases relied
upon by petitioners are to this effect. In view, however, of the factual
background of the cases at bar which include ratification itself, it is
necessary for me to point out that when it comes to ratification, I am
persuaded that there should be a boundary beyond which the competence
of the courts no longer has any reason for being, because the other side is
exclusively political territory reserved for their own dominion by the
people.
The main basis of my opinion in the previous cases was acceptance by the
people. Others may feel there is not enough indication of such acceptance
in the record and in the circumstances the Court can take judicial notice of.
For my part, I consider it unnecessary to be strictly judicial in inquiring into
such fact. Being personally aware, as I have already stated, that the Citizens
Assemblies did meet and vote, if irregularly and crudely, it is not for me to
resort, for the purposes of these cases, to judicial tape and measure, to
find out with absolute precision the veracity of the total number of votes
actually cast. After all, the claims that upon a comparison of conflicting
reports, cases of excess votes may be found, even if extrapolated will not,
as far as I can figure out, suffice to overcome the outcome officially
announced. Rather than try to form a conclusion out of the raw evidence
before Us which the parties did not care to really complete, I feel safer by
referring to the results announced in the proclamation itself. Giving
substantial allowances for possible error and downright manipulation, it
must not be overlooked that, after all, their having been accepted and
adopted by the President, based on official reports submitted to him in due
course of performance of duty of appropriate subordinate officials,
elevated them to the category of an act of a coordinate department of the
government which under the principle separation of powers is clothed with
presumptive correctness or at least entitled to a high degree of
acceptability, until overcome by better evidence, which in these cases does
not exist. In any event, considering that due to the unorthodoxy of the
procedure adopted and the difficulty of an accurate checking of all the
figures, I am unable to conceive of any manageable means of acquiring
information upon which to predicate a denial, I have no alternative but to
rely on what has been officially declared. At this point, I would venture to
express the feeling that if it were not generally conceded that there has
been sufficient showing of the acceptance in question by this time, there
would have been already demonstrative and significant indications of a
rather widespread, if not organized resistance in one form or another.
Much as they are to be given due recognition as magnificent
manifestations of loyalty and devotion to principles, I cannot accord to the
filing of these cases as indicative enough of the general attitude of the
people.
It is true that in the opinion I had the privilege of penning the Court in
Tolentino vs. Comelec, 41 SCRA 702, I made strong and unequivocal
pronouncements to the effect that any amendment to the Constitution of
1935, to be valid, must appear to have been made in strict conformity with
the requirements of Article XV thereof. What is more, that decision
asserted judicial competence to inquire into the matter of compliance or
non compliance as a justiciable matter. I still believe in the correctness of
those views and I would even add that I sincerely feel it reflects the spirit of
the said constitutional provision. Without trying to strain any point
however, I, submit the following considerations in the context of the
peculiar circumstances of the cases now at bar, which are entirely different
from those in the backdrop of the Tolentino rulings I have referred to.
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1. Consider that in the present case what is involved is not just an
amendment of a particular provision of an existing Constitution; here, it is,
as I have discussed earlier above, an entirely new Constitution that is being
proposed. This important circumstance makes a great deal of difference.
No less than counsel Tolentino for herein respondents Puyat and Roy, who
was himself the petitioner in the case I have just referred to is, now inviting
Our attention to the exact language of Article XV and suggesting that the
said Article may be strictly applied to proposed amendments but may
hardly govern the ratification of a new Constitution. It is particularly
stressed that the Article specifically refers to nothing else but
"amendments to this Constitution" which if ratified "shall be valid as part
of this Constitution." Indeed, how can a whole new constitution be by any
manner of reasoning an amendment to any other constitution and how can
it, if ratified, form part of such other constitution? In fact, in the Tolentino
case I already somehow hinted this point when I made reference in the
resolution denying the motion for reconsideration to the fact that Article
XV must be followed "as long as any amendment is formulated and
submitted under the aegis of the present Charter." Said resolution even
added. "(T)his is not to say that the people may not, in the exercise of their
inherent revolutionary powers, amend the Constitution or promulgate an
entirely new one otherwise.".
It is not strange at all to think that the amending clause of a constitution
should be confined in its application only to proposed changes in any part
of the same constitution itself, for the very fact that a new constitution is
being adopted implies a general intent to put aside the whole of the old
one, and what would be really incongrous is the idea that in such an
eventuality, the new Constitution would subject its going into effect to any
provision of the constitution it is to supersede, to use the language
precisely of Section 6, Article XVII, the effectivity clause, of the New
Constitution. My understanding is that generally, constitutions are self-
born, they very rarely, if at all, come into being, by virtue of any provision
of another constitution. 3 This must be the reason why every constitution
has its own effectivity clause, so that if, the Constitutional Convention had
only anticipated the idea of the referendum and provided for such a
method to be used in the ratification of the New Constitution, I would have
had serious doubts as to whether Article XV could have had priority of
application.
2. When an entirely new constitution is proposed to supersede the existing
one, we cannot but take into consideration the forces and the
circumstances dictating the replacement. From the very nature of things,
the proposal to ordain a new constitution must be viewed as the most
eloquent expression of a people's resolute determination to bring about a
massive change of the existing order, a meaningful transformation of the
old society and a responsive reformation of the contemporary institutions
and principles. Accordingly, should any question arise as to its effectivity

and there is some reasonable indication that the new charter has already
received in one way or another the sanction of the people, I would hold
that the better rule is for the courts to defer to the people's judgment, so
long as they are convinced of the fact of their approval, regardless of the
form by which it is expressed provided it be reasonably feasible and
reliable. Otherwise stated, in such instances, the courts should not bother
about inquiring into compliance with technical requisites, and as a matter
of policy should consider the matter non-justiciable.
3. There is still another circumstance which I consider to be of great
relevancy. I refer to the ostensible reaction of the component elements,
both collective and individual, of the Congress of the Philippines. Neither
the Senate nor the House of Representatives has been reported to have
even made any appreciable effort or attempt to convene as they were
supposed to do under the Constitution of 1935 on January 22, 1973 for the
regular session. It must be assumed that being composed of experienced,
knowledgeable and courageous members, it would not have been difficult
for said parliamentary bodies to have conceived some ingenious way of
giving evidence of their determined adherence to the Constitution under
which they were elected. Frankly, much as I admire the efforts of the
handful of senators who had their picture taken in front of the padlocked
portals of the Senate chamber, I do not feel warranted to accord such act
as enough token of resistance. As counsel Tolentino has informed the
court, there was noting to stop the senators and the congressmen to meet
in any other convenient place and somehow officially organize themselves
in a way that can logically be considered as a session, even if nothing were
done than to merely call the roll and disperse. Counsel Tolentino even
pointed out that if there were not enough members to form a quorum, any
smaller group could have ordered the arrest of the absent members. And
with particular relevance to the present cases, it was not constitutionally
indispensable for the presiding officers to issue any call to the members to
convene, hence the present prayers for mandamus have no legal and
factual bases. And to top it all, quite to the contrary, the records of the
Commission on Elections show that at least 15 of 24 senators and over 95
out of less than 120 members of the House of Representatives, have
officially and in writing exercised the option given to them to join the
Interim National Assembly under the New Constitution, thereby
manifesting their acceptance of the new charter.
Now, having these facts in mind, and it being obvious that of the three
great departments of the government under the 1935 Constitution, two,
the Executive and the Legislative, have already accepted the New
Constitution and recognized its enforceability and enforcement, I cannot
see how this Supreme Court can by judicial fiat hold back the political
developments taking place and for the sake of being the guardian of the
Constitution and the defender of its integrity and supremacy make its
judicial power prevail against the decision of those who were duly chosen
by the people to be their authorized spokesmen and representatives. It is
not alone the physical futility of such a gesture that concerns me. More
than that, there is the stark reality that the Senators and the Congressmen,
no less than the President, have taken the same oath of loyalty to the
Constitution that we, the Justices, have taken and they are, therefore,
equally bound with Us to preserve and protect the Constitution. If as the
representatives of the people, they have already opted to accept the New
Constitution as the more effective instrument for fulfillment of the national
destiny, I really wonder if there is even any idealistic worth in our
desperately clinging by Ourselves alone to Our sworn duty vis-a-vis the
1935 Constitution. Conscious of the declared objectives of the new
dispensation and cognizant of the decisive steps being with the least loss of
time, towards their accomplishment, cannot but feel apprehensive that
instead of serving the best interests of our people, which to me is in reality
the real meaning of our oath of office, the Court might be standing in the
way of the very thing our beloved country needs to retrieve its past glory
and greatness. In other words, it is my conviction that what these cases
demand most of all is not a decision demonstrative of our legal erudition
and Solomonic wisdom but an all rounded judgment resulting from the
consideration of all relevant circumstances, principally the political, or, in
brief, a decision more political than legal, which a court can render only by
deferring to the apparent judgment of the people and the announcement
thereof by the political departments of the government and declaring the
matter non-justiciable.
4. Viewed from the strictly legal angle and in the light of judicial methods
of ascertainment, I cannot agree with the Solicitor General that in the legal
sense, there has been at least substantial compliance with Article XV of the
1935 Constitution, but what I can see is that in a political sense, the
answers to the referendum questions were not given by the people as legal
conclusions. I take it that when they answered that by their signified
approval of the New Constitution, they do not consider it necessary to hold
a plebiscite, they could not have had in mind any intent to do what was
constitutionally improper. Basically accustomed to proceed along
constitutional channels, they must have acted in the honest conviction that
what was being done was in conformity with prevailing constitutional
standards. We are not to assume that the sovereign people were indulging
in a futile exercise of their supreme political right to choose the
fundamental charter by which their lives, their liberties and their fortunes
shall be safeguarded. In other words, we must perforce infer that they
meant their decision to count, and it behooves this Court to render
judgment herein in that context. It is my considered opinion that viewed
understandingly and realistically, there is more than sufficient ground to
hold that, judged by such intent and, particularly, from the political
standpoint, the ratification of the 1973 Constitution declared in
Proclamation 1102 complies substantially with Article XV of the 1935
Charter, specially when it is considered that the most important element of
the ratification therein contemplated is not in the word "election", which
conceivably can be in many feasible and manageable forms but in the word
"approved" which may be said to constitute the substantiality of the whole
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article, so long as such approval is reasonably ascertained. In the last
analysis, therefore, it can be rightly said, even if only in a broad sense, that
the ratification here in question was constitutionally justified and
justifiable.
5. Finally, if any doubt should still linger as to the legitimacy of the New
Constitution on legal grounds, the same should be dispelled by viewing the
situation in the manner suggested by Counsel Tolentino and by the writer
of this opinion in his separate opinion, oft-referred to above, in the
Plebiscite Cases — that is, as an extra constitutional exercise by the people,
under the leadership of President Marcos, of their inalienable right to
change their fundamental charter by any means they may deem
appropriate, the moment they are convinced that the existing one is no
longer responsive to their fundamental, political and social needs nor
conducive to the timely attainment of their national destiny. This is not
only the teaching of the American Declaration of Independence but is
indeed, a truth that is self-evident. More, it should be regarded as implied
in every constitution that regardless of the language of its amending
clause, once the people have given their sanction to a new charter, the
latter may be deemed as constitutionally permissible even from the point
of view of the preceding constitution. Those who may feel restrained to
consider this view out of respect to the import of Tolentino vs.
Comelec, supra., would be well advised to bear in mind that the case was
decided in the context of submission, not accomplished ratification.
V
The language of the disputed amending clause of the 1935 Constitution
should not be deemed as the be all and end all the nation. More important
than even the Constitution itself with all its excellent features, are the
people living under it — their happiness, their posterity and their national
destiny. There is nothing that cannot be sacrificed in the pursuit of these
objectives, which constitute the totality of the reasons for national
existence. The sacred liberties and freedom enshrined in it and the
commitment and consecration thereof to the forms of democracy we have
hitherto observed are mere integral parts of this totality; they are less
important by themselves.
What seems to me to be bothering many of our countrymen now is that by
denying the present petitions, the Court would be deemed as sanctioning,
not only the deviations from traditional democratic concepts and principles
but also the qualified curtailment of individual liberties now being
practiced, and this would amount, it is feared, to a repudiation of our oath
to support and defend the Constitution of 1935. This is certainly something
one must gravely ponder upon. When I consider, however, that the
President, the Vice President, the members of both Houses of Congress,
not to speak of all executive departments and bureaus under them as well
as all the lower courts, including the Court of Appeals have already

accepted the New Constitution as an instrument of a meaningful
nationwide-all-level change in our government and society purported to
make more realistic and feasible, rather than idealistic and cumbersomely
deliberative, the attainment of our national aspirations, I am led to wonder
whether or not we, as members of the Supreme Court are being true to
our duty to our people by refusing to follow suit and accept the realities of
the moment, despite our being convinced of the sincerity and laudableness
of their objectives, only because we feel that by the people's own act of
ratifying the Constitution of 1935, they have so encased themselves within
its provisions and may, therefore, no longer take measures to redeem
themselves from the situation brought about by the deficiencies of the old
order, unless they act in strict conformity therewith. I cannot believe that
any people can be so stifled and enchained. In any event, I consider it a
God-given attribute of the people to disengage themselves, if necessary,
from any covenant that would obstruct their taking what subsequently
appears to them to be the better road to the promotion and protection of
their welfare. And once they have made their decision in that respect,
whether sophisticatedly or crudely, whether in legal form or otherwise,
certainly, there can be no court or power on earth that can reverse them.
I would not be human if I should be insensitive to the passionate and
eloquent appeals of Counsels Tañada and Salonga that these cases be
decided on the basis of conscience. That is exactly what I am doing. But if
counsel mean that only by granting their petitions can this Court be
worthily the bulwark of the people's faith in the government, I cannot
agree, albeit my admiration and respect are all theirs for their zeal and
tenacity, their industry and wisdom, their patriotism and devotion to
principle. Verily, they have brought out everything in the Filipino that these
cases demand.
In times of national emergencies and crises, not arising from foreign
invasion, we need not fear playing opposite roles, as long as we are all
animated by sincere love of country and aim exclusively at the attainment
of the national destiny. Our heroes of the past, Rizal, Bonifacio, Aguinaldo,
Antonio Luna, Mabini and so also with our patriots of the recent
generations, Quezon, Osmeña, Roxas, Laurel and Recto, to mention only
some of them, had their differences of views — and they did not hesitate
to take diametrically opposing sides — that even reached tragic
proportions, but all of them are admired and venerated.
It is my faith that to act with absolute loyalty to our country and people is
more important than loyalty to any particular precept or provision of the
Constitution or to the Constitution itself. My oath to abide by the
Constitution binds me to whatever course of action I feel sincerely is
demanded by the welfare and best interests of the people.
In this momentous juncture of our history, what is imperative is national
unity. May God grant that the controversies the events leading to these
cases have entail will heal after the decision herein is promulgated, so that
all us Filipinos may forever join hands in the pursuit of our national destiny.
IN VIEW OF ALL THE FOREGOING, I vote to dismiss these petitions
for mandamus and prohibition without costs.
MAKASIAR, J., concurring:
Assuming, without conceding, that Article XV of the 1935 Constitution
prescribes a procedure for the ratification of constitutional amendments or
of a new Constitution and that such procedure was no complied with, the
validity of Presidential Proclamation No. 1102 is a political, not a justiciable,
issue; for it is inseparably or inextricably link with and strikes at, because it
is decisive of, the validity of ratification and adoption of, as well as
acquiescence of people in, the 1973 Constitution and the legitimacy of the
government organized and operating thereunder. And being political, it is
beyond the ambit of judicial inquiry, tested by the definition of a political
question enunciated in Tañada, et. al. vs. Cuenco, et al. (103 Phil. 1051),
aside from the fact the this view will not do violence to rights vested under
the new Constitution, to international commitments forged pursuant
thereto and to decisions rendered by the judicial as well as quasi-judicial
tribunals organized and functioning or whose jurisdiction has been altered
by the 1973 Constitution and the government established thereunder, and
will dissipate any confusion in the minds of the citizenry, who have been
obeying the mandates of the new Constitution, as well as exercising the
rights and performing the obligations defined by the new Constitution, and
decrees and orders issued in implementation of the same and cooperating
with the administration in the renovation of our social, economic and
political system as re-structured by the 1973 Constitution and by the
implementing decrees and orders (see Miller vs. Johnson, 18 SW 522, 522-
526, 1892).
In 1957, Mr. Chief Justice Roberto Concepcion, then Associate Justice, in
behalf of the Court, defined a political question as one which, under the
Constitution, is "to be decided by the people in their sovereign capacity, or
in regard to which full discretionary authority had been delegated to the
Legislature or Executive branch of the government." (Tañada, et al. vs.
Cuenco, et al., supra).
Article XV of the 1935 Constitution provides: "Such amendments shall be
valid as part of this Constitution when approved by a majority of the votes
cast at an election at which the amendments are submitted to the people
for ratification." Under Article XV of the 1935 Constitution, the power to
propose constitutional amendments is vested in Congress or in a
constitutional convention; while the power to ratify or reject such
proposed amendments or new Constitution is reserved by the sovereign
people. The nullification of Proclamation No. 1102 would inevitably render
inoperative the 1973 Constitution, which is in fact the express prayer of the
Page 45 of 158
petitioners in G.R. No. L-36164. Regardless of the modality of submission or
ratification or adoption — even if it deviates from or violates the procedure
delineated therefore by the old Constitution — once the new Constitution
is ratified, adopted and/or acquiesced in by the people or ratified even by a
body or agency not duly authorized therefor but is subsequently adopted
or recognized by the people and by the other official organs and
functionaries of the government established under such a new
Constitution, this Court is precluded from inquiring into the validity of such
ratification, adoption or acquiescence and of the consequent effectivity of
the new Constitution. This is as it should be in a democracy, for the people
are the repository of all sovereign powers as well as the source of all
governmental authority (Pole vs. Gray, 104 SO 2nd 841 [1958]). This basic
democratic concept is expressly restated in Section 1 of Article II of the
Declaration of Principles of the 1935 and 1973 Constitutions, thus:
"Sovereignty resides in the people and all government authority emanates
from them."
The legality of the submission is no longer relevant; because the
ratification, adoption and/or acquiescence by the people cures any
infirmity in its submission or any other irregularities therein which are
deemed mandatory before submission as they are considered merely
directory after such ratification or adoption or acquiescence by the people.
As Mr. Justice Brewer, then of the Kansas State Supreme Court and later
Associate Justice of the Federal Supreme Court, stated in re Prohibitory
Amendment Cases (24 Kansas 700 & 710 Reprint 499, 506): "The two
important, vital elements of the Legislature and a majority of the popular
vote. Beyond these, other provisions are mere machineries and forms. They
may not be disregarded, because by them certainty as to the essentials is
secured. But they are not themselves the essentials." (Cited in Larken vs.
Gronna, 285 NW 59, 61-64, 1939).
This was the ruling by the American Supreme Court in the 1939 case
of Coleman vs. Miller (307 U.S. 433, 83 L.ed. 1385), where Chief Justice
Hughes, speaking for the majority, stated that:
... Thus the political departments of the government
dealt with the effect of both previous rejection and
attempted withdrawal and determined that both were
ineffectual in the presence of an actual ratification ... .
This decision by the political departments of the
Government as to the validity of the adoption of the
Fourteenth amendment has been accepted.
We think that in accordance with this historic
precedent the question of the efficacy of ratifications
by state legislatures, in the light of previous rejection or
attempted withdrawal, should be regarded as a
political question pertaining to the political

departments, with the ultimate authority in the
Congress in the exercise of its control over the
promulgation of the adoption of the amendment.
This view was likewise emphasized by Mr. Justice Black in his concurring
opinion, in which Mr. Justices Roberts, Frankfurter, and Douglas join, thus:
The Constitution grants Congress exclusive power to
control submission of constitutional amendments. Final
determination by Congress that ratification by three-
fourths of the States has taken place "is conclusive
upon the courts." In the exercise of that power,
Congress, of course, is governed by the Constitution.
However, whether submission, intervening procedure
or Congressional determination of ratification conforms
to the commands of the Constitution, calls for decisions
by a "political department" of questions of a type which
this Court has frequently designated "political." And
decision of a "political question" by the "political
department" to which the Constitution has committed
it "conclusively binds the judges, as well as all other
officers, citizens and subjects of...government."
Proclamation under authority of Congress that an
amendment has been ratified will carry with it a solemn
assurance by the Congress that ratification has taken
place as the Constitution commands. Upon this
assurance a proclaimed amendment must be accepted
as a part of the Constitution, leaving to the judiciary its
traditional authority of interpretation. To the extent
that the Court's opinion in the present case even
impliedly assumes a power to make judicial
interpretation of the exclusive constitutional authority
of Congress over submission and ratification of
amendments, we are unable to agree... (American
Constitutional Issues, by Pritchett, 1962 Ed., p. 44).
The doctrine in the aforesaid case of Coleman vs. Miller was adopted by
Our Supreme Court in toto in Mabanag vs. Lopez Vito (78 Phil. 1).
The ruling in the cases of Gonzales vs. Comelec, et al. (L-28224, Nov. 29,
1967, 21 SCRA 774) and Tolentino vs. Comelec, et al. (L-34150, Oct. 16,
1971, 41 SCRA 702) on which petitioners place great reliance — that the
courts may review the propriety of a submission of a proposed
constitutional amendment before the ratification or adoption of such
proposed amendment by the sovereign people, hardly applies to the cases
at bar; because the issue involved in the aforesaid cases refers to only the
propriety of the submission of a proposed constitutional amendment to
the people for ratification, unlike the present petitions, which challenge
inevitably the validity of the 1973 Constitution after its ratification or
adoption thru acquiescence by the sovereign people. As heretofore stated,
it is specious and pure sophistry to advance the reasoning that the present
petitions pray only for the nullification of the 1973 Constitution and the
government operating thereunder.
It should be stressed that even in the Gonzales case, supra, We held that:
Indeed, the power to amend the Constitution or to
propose amendments thereto is not included in the
general grant of legislative powers to Congress. It is
part of the inherent powers of the people — as the
repository of sovereignty in a republican state, such as
ours — to make, and hence, to amend their own
Fundamental Law. Congress may propose amendments
to the same explicitly grants such power. Hence, when
exercising the same, it is said that Senators and
Members of the House of Representatives act, not as
members, but as component elements of a constituent
assembly. When acting as such, the members
of Congress derive their authority from the
Constitution, unlike the people, when performing the
same function, for their authority does not emanate
from the Constitution — they are the very source of all
powers of government, including the Constitution itself.
(21 SCRA 787)
We did not categorically and entirely overturn the doctrine in Mabanag vs.
Lopez Vito (78 Phil. 1) that both the proposal to amend and the ratification
of such a constitutional amendment are political in nature forming as they
do the essential parts of one political scheme — the amending process. WE
merely stated therein that the force of the ruling in the said case
of Mabanag vs. Lopez Vito has been weakened by subsequent cases. Thus,
We pronounced therein:
It is true that in Mabanag vs. Lopez Vito, this Court
characterizing the issue submitted thereto as a political
one, declined to pass upon the question whether or not
a given number of votes cast in Congress in favor of a
proposed amendment to the Constitution — which was
being submitted to the people for ratification —
satisfied the three fourths vote requirement of the
fundamental law. The force of this precedent has been
weakened, however, by Suanes vs. Chief Accountant of
the Senate, Avelino vs. Cuenco, Tañada vs. Cuenco and
Macias vs. Commission on Elections. In the first, we
held the officers and employees of the Senate Electoral
Tribunal are supervision and control, not of that of the
Page 46 of 158
Senate President, claimed by the latter; in the second,
this Court proceeded to determine the number of
Senators necessary for a quorum in the Senate; in the
third we nullified the election, by Senators belonging to
the party having the largest number of votes in said
chamber purporting to act on behalf of the party
having the second largest number of votes therein, of
two (2) Senators belonging to the first party, as
members, for the second party, of the Senate Electoral
Tribunal; and in the fourth, we declared
unconstitutional an act of Congress purporting to
apportion the representative districts for the House of
Representatives, upon the ground that the
apportionment had not been made as may be possible
according to the number of inhabitants of each
province. Thus we rejected the theory advanced in
these four (4) cases, that the issues therein raised were
political questions the determination of which is
beyond judicial review. (21 SCRA pp. 785-786);
for which reason We concluded
In short, the issue whether or not a resolution of
Congress before acting as a constituent assembly —
violates the Constitution is essentially justiciable, not
political, and, hence, subject to judicial review, and to
the extent that this view may be inconsistent with the
stand taken in Mabanag vs. Lopez Vito, the latter
should be deemed modified accordingly. (p. 787,
emphasis supplied.)
In the Tolentino case, supra, We reiterated the foregoing statements (41
SCRA 703-714).
The inevitable consequence therefore is that the validity of the ratification
or adoption of or acquiescence by the people in the 1973 Constitution,
remains a political issue removed from the jurisdiction of this Court to
review.
One more word about the Gonzales and Tolentino cases. Both primarily
stressed on the impropriety of the submission of a proposed constitutional
amendment. Courts do not deal with propriety or wisdom or absence of
either of an official act or of a law. Judicial power concerns only with the
legality or illegality, constitutionality or unconstitutionality of an act: it
inquires into the existence of power or lack of it. Judicial wisdom is not to
be pitted against the wisdom of the political department of the
government.

The classic example of an illegal submission that did not impair the validity
of the ratification or adoption of a new Constitution is the case of the
Federal Constitution of the United States. It should be recalled that the
thirteen (13) original states of the American Union — which succeeded in
liberating themselves from England after the revolution which began on
April 19, 1775 with the skirmish at Lexington, Massachusetts and ended
with the surrender of General Cornwallis at Yorktown, Virginia, on October
19, 1781(Encyclopedia Brit., Vol. I, 1933 Ed., p. 776) — adopted their
Articles of Confederation and Perpetual Union, that was written from 1776
to 1777 and ratified on March 1, 1781 (Encyclopedia Brit., Vol. II, 1966 Ed.,
p. 525). About six thereafter, the Congress of the Confederation passed a
resolution on February 21, 1787 calling for a Federal Constitutional
Convention "for the sole and express purpose of revising the articles of
confederation ... ." (Appendix I, Federalist, Modern Library ed., p. 577,
emphasis supplied).
The Convention convened at Philadelphia on May 14, 1787. Article XIII of
the Articles of Confederation and Perpetual Union stated specifically:
The articles of this confederation shall be inviolably
observed in every state, and the union shall be
perpetual; nor shall any alterations at any time
hereafter be made in any of them; unless such
alteration be agreed to in a congress of the united
states, and be afterwards confirmed by the legislatures
of every state. (See the Federalist, Appendix II, Modern
Library Ed., 1937, p. 584; emphasis supplied.)
But the foregoing requirements prescribed by the Articles of Confederation
and Perpetual Union for the alteration for the ratification of the Federal
Constitution as drafted by the Philadelphia Convention were not followed.
Fearful the said Federal Constitution would not be ratified by the
legislatures as prescribed, the Philadelphia Convention adopted a
resolution requesting the Congress of the Confederation to pass a
resolution providing that the Constitution should be submitted to elected
state conventions and if ratified by the conventions in nine (9) states, not
necessarily in all thirteen (13) states, the said Constitution shall take effect.
Thus, history Professor Edward Earle Mead of Princeton University
recorded that:
It would have been a counsel of perfection to consign
the new constitution to the tender mercies of the
legislatures of each and all of the 13 states. Experience
clearly indicated that ratification then would have had
the same chance as the scriptural camel passing
through the eye of a needle. It was therefore
determined to recommend to Congress that the new
Constitution be submitted to conventions in the several
states especially elected to pass upon it and that,
furthermore, the new government should go into effect
if and when it should be ratified by nine of the thirteen
states ... . (The Federalist, Modern Library Ed., 1937,
Introduction by Edward Earle Mead, pp. viii-ix;
emphasis supplied)
Historian Samuel Eliot Morison similarly recounted:
The Convention, anticipating that the influence of many
state politicians would be Antifederalist, provided for
ratification of the Constitution by popularly elected
conventions in each state. Suspecting that Rhode
Island, at least, would prove recalcitrant, it declared
that the Constitution would go into effect as soon as
nine states ratified. The convention method had the
further advantage that judges, ministers, and others
ineligible to state legislatures, could be elected to a
convention. The nine-state provision was, of course,
mildly revolutionary. But the Congress of the
Confederation, still sitting in New York to carry on
federal government until relieved, formally submitted
the new constitution to the states and politely faded
out before the first presidential inauguration. (The
Oxford History of the Am. People, by Samuel Eliot
Morison, 1965 ed., p. 312).
And so the American Constitution was ratified by nine (9) states on June
21, 1788 and by the last four states on May 29, 1790 (12 C.J. p. 679
footnote, 16 C.J.S., 27. — by the state conventions and not by all thirteen
(13) state legislatures as required by Article XIII of the Articles of
Confederation and Perpetual Union aforequoted — and in spite of the fact
that the Federal Constitution as originally adopted suffers from two basic
infirmities, namely, the absence of a bill of Rights and of a provision
affirming the power of judicial review.
The liberties of the American people were guaranteed by subsequent
amendments to the Federal Constitution. The doctrine of judicial review
has become part of American constitutional law only by virtue of a judicial
pronouncement by Chief Justice Marshall in the case of Marbury vs.
Madison (1803, 1 Cranch 137).
Until this date, no challenge has been launched against the validity of the
ratification of the American Constitution, nor against the legitimacy of the
government organized and functioning thereunder.
Page 47 of 158
In the 1946 case of Wheeler vs. Board of Trustees (37 SE 2nd 322, 326-330),
which enunciated the principle that the validity of a new or revised
Constitution does not depend on the method of its submission or
ratification by the people, but on the fact or fiat or approval or adoption or
acquiescence by the people which fact of ratification or adoption or
acquiescence is all that is essential, the Court cited precisely the case of the
irregular revision and ratification by state conventions of the Federal
Constitution, thus:
No case identical in its facts with the case now under
consideration has been called to our attention, and we
have found none. We think that the principle which we
apply in the instant case was very clearly applied in the
creation of the constitution of the United States. The
convention created by a resolution of Congress had
authority to do one thing, and one only, to wit, amend
the articles of confederation. This they did not do, but
submitted to the sovereign power, the people, a new
constitution. In this manner was the constitution of the
United States submitted to the people and it became
operative as the organic law of this nation when it had
been properly adopted by the people.
Pomeroy's Constitutional Law, p. 55, discussing the
convention that formulated the constitution of the
United States, has this to say: "The convention
proceeded to do, and did accomplish, what they were
not authorized to do by a resolution of Congress that
called them together. That resolution plainly
contemplated amendments to the articles of
confederation, to be submitted to and passed by the
Congress, and afterwards ratified by all the State
legislatures, in the manner pointed out by the existing
organic law. But the convention soon became convinced
that any amendments were powerless to effect a cure;
that the disease was too deeply seated to be reached
such tentative means. They saw that the system they
were called to improve must be totally abandoned, and
that the national idea must be re-established at the
center of their political society. It was objected by some
members, that they had no power, no authority, to
construct a new government. They had no authority, if
their decisions were to be final; and no authority
whatsoever, under the articles of confederation, to
adopt the course they did. But they knew that their
labors were only to be suggestions; and that they as
well as any private individuals, and any private
individuals as well as they, had a right to propose a plan

of government to the people for their adoption. They
were, in fact, a mere assemblage of private citizens,
and their work had no more binding sanction than a
constitution drafted by Mr. Hamilton in his office would
have had. The people, by their expressed will,
transformed this suggestion, this proposal, into an
organic law, and the people might have done the same
with a constitution submitted to them by a single
citizen."
xxx xxx xxx
... When the people adopt a completely revised or new
constitution, the framing or submission of the
instrument is not what gives it binding force and effect.
The fiat of the people and only the fiat of the people,
can breathe life into a constitution.
xxx xxx xxx
... We do not hesitate to say that a court is never
justified in placing by implication a limitation upon the
sovereign. This would be an authorized exercise of
sovereign power by the court. In State v. Swift, 69 Ind.
505, 519, the Indiana Supreme Court said: "The people
of a State may form an original constitution, or
abrogate an old one and form a new one, at any time,
without any political restriction except the constitution
of the United States; ... ." (37 SE 327-328, 329,
emphasis supplied.)
In the 1903 case of Weston vs. Ryan, the Court held:
It remains to be said that if we felt at liberty to pass
upon this question, and were compelled to hold that
the act of February 23, 1887, is unconstitutional and
void, it would not, in our opinion, by any means follow
that the amendment is not a part of our state
Constitution. In the recent case of Taylor vs.
Commonwealth (Va.) 44 S.E. 754, the Supreme Court of
Virginia hold that their state Constitution of 1902,
having been acknowledged and accepted by the officers
administering the state government, and by the people,
and being in force without opposition, must be
regarded as an existing Constitution irrespective of the
question as to whether or not the convention which
promulgated it had authority so to do without
submitting it to a vote of the people. In Brittle v. People,
2 Neb. 198, is a similar holding as to certain provisions
of the Nebraska Constitution of 1886, which were
added by the Legislature at the requirement of
Congress, though never submitted to the people for
their approval." (97 NW 349-350; emphasis supplied).
Against the decision in the Wheeler case, supra, confirming the validity of
the ratification and adoption of the American Constitution, in spite of the
fact that such ratification was in clear violation of the prescription on
alteration and ratification of the Articles of Confederation and Perpetual
Union, petitioners in G.R. No. L-36165 dismissed this most significant
historical fact by calling the Federal Constitution of the United States as a
revolutionary one, invoking the opinion expressed in Vol. 16, Corpus Juris
Secundum, p. 27, that it was a revolutionary constitution because it did not
obey the requirement that the Articles of Confederation and Perpetual
Union can be amended only with the consent of all thirteen (13) state
legislatures. This opinion does not cite any decided case, but merely refers
to the footnotes on the brief historic account of the United States
Constitution on p. 679 of Vol. 12, CJS. Petitioners, on p. 18 of their main
Notes, refer US to pp. 270-316 of the Oxford History of the American
People, 1965 Ed. by Samuel Eliot Morison, who discusses the Articles of
Confederation and Perpetual Union in Chapter XVIII captioned
"Revolutionary Constitution Making, 1775 1781" (pp. 270-281). In Chapter
XX on "The Creative Period in Politics, 1785-1788," Professor Morison
delineates the genesis of the Federal Constitution, but does not refer to it
even implicitly as revolutionary constitution (pp. 297-316). However, the
Federal Constitution may be considered revolutionary from the view point
of McIver if the term revolution is understood in "its wider sense to
embrace decisive changes in the character of government, even though
they do not involve the violent overthrow of an established order, ... ."
(R.M. MacIver, The Web of Government, 1965 ed., p. 203).
It is rather ridiculous to refer to the American Constitution as a
revolutionary constitution. The Articles of Confederation and Perpetual
Union that was in force from July 12, 1776 to 1788, forged as it was during
the war of independence was a revolutionary constitution of the thirteen
(13) states. In the existing Federal Constitution of the United States which
was adopted seven (7) or nine (9) years after the thirteen (13) states won
their independence and long after popular support for the government of
the Confederation had stabilized was not a product of a revolution. The
Federal Constitution was a "creation of the brain and purpose of man" in
an era of peace. It can only be considered revolutionary in the sense that it
is a radical departure from its predecessor, the Articles of Confederation
and Perpetual Union.
It is equally absurd to affirm that the present Federal Constitution of the
United States is not the successor to the Articles of Confederation and
Page 48 of 158
Perpetual Union. The fallacy of the statement is so obvious that no further
refutation is needed.
As heretofore stated, the issue as to the validity of Proclamation No. 1102
strikes at the validity and enforceability of the 1973 Constitution and of the
government established and operating thereunder. Petitioners pray for a
declaration that the 1973 Constitution is inoperative (L-36164). If
Proclamation No. 1102 is nullified, then there is no valid ratification of the
1973 Constitution and the inevitable conclusion is that the government
organized and functioning thereunder is not a legitimate government.
That the issue of the legitimacy of a government is likewise political and
not justiciable, had long been decided as early as the 1849 case of Luther
vs. Borden (7 How. 1, 12 L.ed., 581), affirmed in the 1900 case of Taylor vs.
Beckham (178 U.S. 548, 44 L.ed. 1187) and re-enunciated in 1912 in the
case of Pacific States Telephone and Telegraph Company vs. Oregon (223
U.S. 118, 133-151, 56 L.ed. 377-386). Because it reaffirmed the
pronouncements in both Borden and Beckham cases, it is sufficient for us
to quote the decision in Pacific States Telephone and Telegraph Co., supra,
penned by Mr. Chief Justice White, who re-stated:
In view of the importance of the subject, the apparent
misapprehension on one side and seeming
misconception on the other, suggested by the
argument as to the full significance of the previous
doctrine, we do not content ourselves with a mere
citation of the cases, but state more at length than we
otherwise would the issues and the doctrine expounded
in the leading and absolutely controlling case — Luther
v. Borden, 7 How. 1, 12 L.ed. 581.
xxx xxx xxx
... On this subject it was said (p. 38):
"For if this court is authorized to enter upon this
inquiry, proposed by the plaintiff, and it should be
decided that the character government had no legal
existence during the period of time above mentioned,
— if it had been annulled by the adoption of the
opposing government, — then the laws passed by its
legislature during that time were nullities; its taxes
wrongfully collected, its salaries and compensations to
its officers illegally paid ; its public accounts improperly
settled and the judgments and sentences of its courts in
civil and criminal cases null and void, and the officers

who carried their decisions into operation answerable
as trespassers, if not in some cases as criminals."
xxx xxx xxx
"The fourth section of the fourth article of the
Constitution of the United States shall guarantee to
every state in the Union a republican form of
government, and shall protect each of them against
invasion; and on the application of the Legislature or of
the Executive (when the legislature cannot be
convened) against domestic violence.
"Under this article of the Constitution it rests with
Congress to decide what government is established one
in a state. For, as the United State guarantee to each
state a republican government, Congress must
necessarily decide what government is established in
the state before it can determine whether it is
republican or not. And when the senators and
representatives of a state are admitted into the
Councils of the Union, the authority of the government
under which they were appointed, as well as its
republican character, is recognized by the proper
constitutional authority. And its decision is binding on
every other department of the government, and could
not be questioned in a judicial tribunal. It is true that
the contest in this case did not last long enough to
bring the matter to this issue; and as no senators or
representatives were elected under the authority of
the government of which Mr. Dorr was the head,
Congress was not called upon to decide the
controversy. Yet the right to decide is placed there and
not in the courts."
xxx xxx xxx
... We do not stop to cite other cases which indirectly or
incidentally refer to the subject, but conclude by
directing attention to the statement by the court,
speaking through Mr. Chief Justice Fuller, in Taylor vs.
Beckham, 178 U.S. 548, 44 L.ed. 1187, 20 Sup. Ct. Rep.
890, 1009, where, after disposing of a contention made
concerning the 14th Amendment, and coming to
consider a proposition which was necessary to be
decided concerning the nature and effect of the
guaranty of S 4 of article 4, it was said (p. 578):
Page 49 of 158
"But it is said that the 14th Amendment must be read The Constitution of 1902 was ordained and proclaimed
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
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 legislature cannot be convened), against domestic swearing fidelity to it and proclaiming it, as directed
violence." thereby; by the Legislature in its formal official act
adopting a joint resolution, July 15, 1902, recognizing
xxx xxx xxx the Constitution ordained by the convention which
assembled in the city of Richmond on the 12th day of
June 1901, as the Constitution of Virginia; by the
"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
v. Borden, 7 How. 1, 12 L.ed. 581. In that case it was
under it and putting its provisions into operation but
held that the question, which of the two opposing
the judiciary in taking the oath prescribed thereby to
governments of Rhode Island, namely, the charter
support and by enforcing its provisions; and by the
government or the government established by a
people in their primary capacity by peacefully accepting
voluntary convention, was the legitimate one, was a
it and acquiescing in it, registering as voters under it to
question for the determination of the political
the extent of thousands through the state, and by
department; and when that department had decided,
voting, under its provisions, at a general election for
the courts were bound to take notice of the decision
their representatives in the Congress of the United
and follow it."
States. (p. 755).
xxx xxx xxx
The Court in the Taylor case above-mentioned further said:
As the issues presented, in their very essence, are,
While constitutional procedure for adoption or
and have long since by this Court been, definitely
proposal to amend the constitution must be duly
determined to be political and governmental, and
followed, without omitting any requisite steps, courts
embraced within the scope of the scope of the powers
should uphold amendment, unless satisfied that the
conferred upon Congress, and not, therefore within the
Constitution was violated in submitting the proposal.
reach of judicial power, it follows that the case
... Substance more than form must be regarded in
presented is not within our jurisdiction, and the writ of
considering whether the complete constitutional system
error must therefore be, and it is, dismissed for want of
for submitting the proposal to amend the constitution
jurisdiction. (223 U.S. pp. 142-151; emphasis supplied).
was observed.
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
submitting the same to the people for ratification, becomes valid, when
recognized, accepted and acted upon the by Chief of State and other There may be technical error in the manner in which a
government functionaries, as well as by the people. In the 1903 case proposed amendment is adopted, or in its
of Taylor vs. Commonwealth (44 SE 754-755), the Court ruled: advertisement, yet, if followed, unobjected to, by
approval of the electors, it becomes part of the
Constitution. Legal complaints to the submission may
The sole ground urged in support of the contention
be made prior to taking the vote, but, if once
that Constitution proclaimed in 1902 is invalid is that it
sanctioned, the amendment is embodied therein, and
was ordained and promulgated by the convention
cannot be attacked, either directly or collaterally,
without being submitted for ratification or rejection by
because of any mistake antecedent thereto. Even
the people of the commonwealth.
though it be submitted at an improper time, it is

effective for all purposes when accepted by the
majority. Armstrong v. King, 281 Pa. 207, 126 A. 263.
(130 A 409).
Even if the act of the Constitutional Convention is beyond its authority,
such act becomes valid upon ratification or adoption or acquiescence by
the people. Thus, in the 1905 case of Ex parte Birmingham and A.R.
Company (42 SO pp. 118 & 123), the Alabama Supreme Court upheld this
principle and stated that: "The authorities are almost uniform that this
ratification of an unauthorized act by the people (and the people are the
principal in this instance) renders the act valid and binding."
It has likewise been held that it is not necessary that voters ratifying the
new Constitution are registered in the book of voters; it is enough that they
are electors voting on the new Constitution. (Bott vs. Wurts, 40 A 740
[1899]; 45 LRA 251, emphasis supplied).
In the 1956 case of Thomson vs. Peoples State Bank (75 NW 2nd 370, 375),
the Supreme Court of Wisconsin ruled that "irregularity in the procedure
for the submission of the proposed constitutional amendment will not
defeat the ratification by the people."
Again, in the 1958 case of Swaim vs. Tuscaloosa County (103 SO 2nd 769),
the Alabama Supreme Court pronounced that "the irregularity in failing to
publish the proposed constitutional amendment once in each of the 4
calendar weeks next preceding the calendar week in which the election
was held or once in each of the 7-day periods immediately preceding the
day of the election as required by the Constitution, did not invalidate the
amendment which was ratified by the people."
The same principle was reiterated in 1961 by the Mississippi Supreme Court
in Barnes, et al. v. Ladner (131) SO 2nd 45 462), where they admitted
irregularities or illegalities committed in the procedure for submission of
the proposed constitutional amendment to the people for ratification
consisted of: "(a) the alleged failure of the county election commissioners
of the several counties to provide a sufficient number of ballot boxes
'secured by good and substantial locks,' as provided by Section 3249, Code
of 1942, Rec., to be used in the holding of the special election on the
constitutional amendment, and (b) the alleged failure of the State Election
Commissioners to comply with the requirements of Code Sections 3204
and 3205 in the appointment of election commissioners in each of the 82
counties. The irregularities complained of, even if proved, were not such
irregularities would have invalidated the election." (Emphasis supplied; see
also Sylvester vs. Tindall, 8 SO 2nd 892; 154 Fla. 663).
Even prior to the election in November, 1970 of delegates of the
Constitutional Convention and during the deliberations of the
Constitutional Convention from June 1, 1971 until martial law was
proclaimed on Sept. 21, 1972, the salient reforms contained in the 1973
Constitution which have long been desired by the people, had been
thoroughly discussed in the various committees of the Constitutional
Convention, on the floor of the Convention itself, in civic forums and in all
the media of information. Many of the decrees promulgated by the Chief
Executive from Sept. 22, 1972 to Jan. 17, 1973 implement some of the
reforms and had been ratified in Sec. 3(2) of Article XVII of the 1973
Constitution.
Petitioners cannot safely state that during martial law the majority of the
people cannot freely vote for these reforms and are not complying with the
implementing decrees promulgated by the President.
Free election is not inevitably incompatible with martial law. We had free
elections in 1951 and 1971 when the opposition won six out of eight
senatorial seats despite the suspension of the privileges of the writ
of habeas corpus(see Lansang vs. Garcia, et al., Dec. 14, 1971, 42 SCRA
448), which suspension implies constraint on individual freedom as the
proclamation of martial law. In both situations, there is no total blackout of
human rights and civil liberties.
All the local governments, dominated either by Nacionalistas or Liberals, as
well as officials of the Legislative and Executive branches of the
government elected and/or appointed under the 1935 Constitution have
either recognized or are now functioning under the 1973 Constitution,
aside from the fact of its ratification by the sovereign people through the
Citizens Assemblies. Ninety-five (95) of a total of one hundred ten (110)
members of the House of Representatives including the Speaker and the
Speaker Pro Tempore as well as about eleven (11) Congressmen who
belong to the Liberal Party and fifteen (15) of a total of twenty-four (24)
senators including Liberal senators Edgar U. Ilarde and John Osmeña opted
to serve in the Interim Assembly, according to the certification of the
Commission on Elections dated February 19, 1973 (Annex Rejoinder-3 to
Consolidated Rejoinder of petitioners in L-36165). Only the five (5)
petitioners in L-36165 close their eyes to a fait accompli. All the other
functionaries recognize the new government and are performing their
duties and exercising their powers under the 1973 Constitution, including
the lower courts. The civil courts, military tribunals and quasi-judicial
bodies created by presidential decrees have decided some criminal, civil
and administrative cases pursuant to such decrees. The foreign
ambassadors who were accredited to the Republic of the Philippines
before martial law continue to serve as such in our country; while two new
ambassadors have been accepted by the Philippines after the ratification of
the 1973 Constitution on January 17, 1973. Copies of the 1973 Constitution
had been furnished the United Nations Organization and practically all the
other countries with which the Philippines has diplomatic relations. No
adverse reaction from the United Nations or from the foreign states has
Page 50 of 158
been manifested. On the contrary, our permanent delegate to the United
Nations Organization and our diplomatic representatives abroad appointed
before martial law continue to remain in their posts and are performing
their functions as such under the 1973 Constitution.
Even the Commission on Elections is now implementing the provisions of
the 1973 Constitution by requiring all election registrars to register 18-year
olds and above whether literates or not, who are qualified electors under
the 1973 Constitution (see pars. 1-A(c), (d), & (e) of Annex A to Notes of
respondents Puyat and Roy in L-36165).
In brief, it cannot be said that the people are ignoring the 1973
Constitution and the government which is enforcing the same for over 10
weeks now With the petitioners herein, secessionists, rebels and
subversives as the only possible exceptions, the rest of the citizenry are
complying with decrees, orders and circulars issued by the incumbent
President implementing the 1973 Constitution.
Of happy relevance on this point is the holding in Miller vs. Johnson 18 SW
522:
If a set of men, not selected by the people according to
the forms of law, were to formulate an instrument and
declare it the constitution, it would undoubtedly be the
duty of the courts declare its work a nullity. This would
be revolution, and this the courts of the existing
government must resist until they are overturned by
power, and a new government established. The
convention, however, was the offspring of law. The
instrument which we are asked to declare invalid as a
constitution has been made and promulgated according
to the forms of law. It is a matter of current history that
both the executive and legislative branches of the
government have recognized its validity as a
constitution, and are now daily doing so. Is the
question, therefore, one of a judicial character? It is our
undoubted duty, if a statute be unconstitutional to so
declare it; also, if a provision of the state constitution
be in conflict with the federal constitution, to hold the
former invalid. But this is a very different case. It may
be said, however, that, for every violation of or non-
compliance with the law, there should be a remedy in
the courts. This is not, however, always the case. For
instance, the power of a court as to the acts of the
other departments of the government is not an
absolute one, but merely to determine whether they
have kept within constitutional limits, it is a duty rather
than a power, The judiciary cannot compel a co-equal

department to perform a duty. It is responsible to the
people; but if it does act, then, when the question is
properly presented, it is the duty of the court to say
whether it has conformed to the organic law. While the
judiciary should protect the rights of the people with
great care and jealousy, because this is its duty, and
also because, in times of great popular excitement, it is
usually their last resort, yet it should at the same time
be careful to overstep the proper bounds of its power,
as being perhaps equally dangerous; and especially
where such momentous results might follow as would
be likely in this instance, if the power of the judiciary
permitted, and its duty required, the overthrow of the
work of the convention.
After the American Revolution the state of Rhode
Island retained its colonial character as its constitution,
and no law existed providing for the making of a new
one. In 1841 public meetings were held, resulting in the
election of a convention to form a new one, — to be
submitted to a popular vote. The convention framed
one, submitted it to a vote, and declared it adopted.
Elections were held for state officers, who proceeded
to organize a new government. The charter
government did not acquiesce in these proceedings,
and finally declared the state under martial law. It
called another convention, which in 1843 formed a new
constitution. Whether the charter government, or the
one established by the voluntary convention, was the
legitimate one, was uniformly held by the courts of the
state not to be a judicial, but a political question; and
the political department having recognized the one, it
was held to be the duty of the judiciary to follow its
decision. The supreme court of the United States, in
Luther v. Borden, 7 How. 1, while not expressly deciding
the principle, as it held the federal court, yet in the
argument approves it, and in substance says that where
the political department has decided such a matter the
judiciary should abide by it.
Let us illustrate the difficulty of a court deciding the
question: Suppose this court were to hold that the
convention, when it reassembled, had no power to
make any material amendment, and that such as were
made are void by reason of the people having
theretofore approved the instrument. Then, next, this
court must determine what amendments were
material; and we find the court, in effect, making a
constitution. This would be arrogating sovereignty to
itself. Perhaps the members of the court might differ as
to what amendments are material, and the result
would be confusion and anarchy. One judge might say
that all the amendments, material and immaterial,
were void; another, that the convention had then the
implied power to correct palpable errors, and then the
court might differ as to what amendments are material.
If the instrument as ratified by the people could not be
corrected or altered at all, or if the court must
determine what changes were material, then the
instrument, as passed upon by the people or as fixed by
the court would be lacking a promulgation by the
convention; and, if this be essential, then the question
would arise, what constitution are we now living under,
and what is the organic law of the state? A suggestion
of these matters shows what endless confusion and
harm to the state might and likely would arise. If,
through error of opinion, the convention exceeded its
power, and the people are dissatisfied, they have ample
remedy, without the judiciary being asked to overstep
the proper limits of its power. The instrument provides
for amendment and change. If a wrong has been done,
it can, in the proper way in which it should be remedied,
is by the people acting as a body politic. It is not a
question of whether merely an amendment to a
constitution, made without calling a convention, has
been adopted, as required by that constitution. If it
provides how it is to be done, then, unless the manner
be followed, the judiciary, as the interpreter of that
constitution, will declare the amendment
invalid. Koehler v. Hill, 60 Iowa, 543, 14 N.W. Rep. 738,
and 15 N.W. Rep. 609; State v. Tuffy, 1 Nev. 391, 12
Pac. Rep. 835. But it is a case where a new constitution
has been formed and promulgated according to the
forms of law. Great interests have already arisen under
it; important rights exist by virtue of it; persons have
been convicted of the highest crime known to the law,
according to its provisions; the political power of the
government has in many ways recognized it; and, under
such circumstances, it is our duty to treat and regard it
as a valid constitution, and now the organic law of our
commonwealth.
We need not consider the validity of the amendments
made after the convention reassembled. If the making
of them was in excess of its powers, yet, as the entire
instrument has been recognized as valid in the manner
suggested, it would be equally an abuse of power by
Page 51 of 158
the judiciary and violative of the rights of the people, —
who can and properly should remedy the matter, if not
to their liking, — if it were to declare the instrument of
a portion invalid, and bring confusion and anarchy upon
the state. (emphasis supplied).
If this Court inquires into the validity of Proclamation No. 1102 and
consequently of the adoption of the 1973 Constitution it would be
exercising a veto power on the act of the sovereign people, of whom this
Court is merely an agent, which to say the least, would be anomalous. This
Court cannot dictate to our principal, the sovereign people, as to how the
approval of the new Constitution should be manifested or expressed. The
sovereign people have spoken and we must abide by their decision,
regardless of our notion as to what is the proper method of giving assent to
the new Charter. In this respect, WE cannot presume to know better than
the incumbent Chief Executive, who, unlike the members of this Court,
only last January 8, 1973, We affirmed in Osmeña vs. Marcos (Pres. Election
Contest No. 3, Jan. 8, 1973), was re-elected by the vote of over 5 million
electors in 1969 for another term of four years until noon of December 30,
1973 under the 1935 Constitution. This Court, not having a similar mandate
by direct fiat from the sovereign people, to execute the law and administer
the affairs of government, must restrain its enthusiasm to sally forth into
the domain of political action expressly and exclusively reserved by the
sovereign people themselves.
The people in Article XV of the 1935 Constitution did not intend to tie their
hands to a specific procedure for popular ratification of their organic law.
That would be incompatible with their sovereign character of which We are
reminded by Section 1, of Article II of both the 1935 and the 1973
Constitutions.
The opinion of Judge Thomas McIntire Cooley that the sovereign people
cannot violate the procedure for ratification which they themselves define
in their Constitution, cannot apply to a unitary state like the Republic of the
Philippines. His opinion expressed in 1868 may apply to a Federal State like
the United States, in order to secure and preserve the existence of the
Federal Republic of the United States against any radical innovation
initiated by the citizens of the fifty (50) different states of the American
Union, which states may be jealous of the powers of the Federal
government presently granted by the American Constitution. This
dangerous possibility does not obtain in the case of our Republic.
Then again, Judge Cooley advanced the aforesaid opinion in 1868 when he
wrote his opus "Constitutional Limitations." * (Vol. 6, Encyclopedia Brit.,
1969 ed. pp. 445 446). It is possible that, were he live today, in a milieu
vastly different from 1868 to 1898, he might have altered his views on the
matter.

Even if conclusiveness is to be denied to the truth of the declaration by the
President in Proclamation No. 1102 that the people through their Citizens'
Assemblies had overwhelmingly approved the new Constitution due regard
to a separate, coordinate and co-equal branch of the government demands
adherence to the presumption of correctness of the President's
declaration. Such presumption is accorded under the law and
jurisprudence to officials in the lower levels of the Executive branch, there
is no over-riding reason to deny the same to the Chief of State as head of
the Executive Branch. WE cannot reverse the rule on presumptions,
without being presumptuous, in the face of the certifications by the Office
the Secretary of the Department of Local Government and Community
Development. (Annexes 1, to 1-E, Annexes 2 to 2-O to the compliance with
manifestation filed by the Solicitor General on behalf of the respondents
public officers dated March 7, 1973). There is nothing in the records that
contradicts, much less overthrow the results of the referendum as
certified. Much less are We justified in reversing the burden of proof — by
shifting it from the petitioners to the respondents. Under the rules on
pleadings, the petitioners have the duty to demonstrate by clear and
convincing evidence their claim that the people did not ratify through the
Citizens' Assemblies nor adopt by acquiescence the 1973 Constitution. And
have failed to do so.
No member of this Tribunal is justified in resolving the issues posed by the
cases at bar on the basis of reports relayed to him from private sources
which could be biased and hearsay, aside from the fact that such reports
are not contained in the record. Proclamation No. 1102 is not just an
ordinary act of the Chief Executive. It is a well-nigh solemn declaration
which announces the highest act of the sovereign people —
their imprimatur to the basic Charter that shall govern their lives hereafter
— may be for decades, if not for generations.
Petitioners decry that even 15-year olds, ex convicts and illiterates were
allowed to vote in the Citizens' Assemblies, despite their admission that the
term "Filipino people" in the preamble as well as "people" in Sections 1 and
5 of Article II of the 1935 Constitution and in Section 1(3) of Article III of the
Bill of Rights includes all Filipino citizens of all ages, of both sexes, whether
literate or illiterate, whether peaceful citizens, rebels, secessionists,
convicts or ex-convicts. Without admitting that ex-convicts voted in the
referendum, about which no proof was even offered, these sectors of our
citizenry, whom petitioners seem to regard with contempt or decision and
whom petitioners would deny their sovereign right to pass upon the basic
Charter that shall govern their lives and the lives of their progenies, are
entitled as much as the educated, the law abiding, and those who are 21
years of age or above to express their conformity or non conformity to the
proposed Constitution, because their stake under the new Charter is not
any less than the stake of the more fortunate among us. As a matter of
fact, these citizens, whose juridical personality or capacity to act is limited
by age, civil interdiction or ignorance deserve more solicitude from the
State than the rest of the citizenry. In the ultimate analysis, the inclusion of
those from 15 years up to below 21 years old, the ex-convicts and the
ignorant, is more democratic as it broadens the base of democracy and
therefore more faithful to the express affirmation in Section 1 of Article II
of the Declaration of Principles that "sovereignty resides in the people and
all government authority emanates from them."
Moreover, ex-convicts granted absolute pardon are qualified to vote. Not
all ex-convicts are banned from voting. Only those who had been
sentenced to at least one year imprisonment are disenfranchised but they
recover their right of suffrage upon expiration of ten years after service of
sentence (Sec. 102, 1971 Rev. Elec. Code). Furthermore, ex-convicts and
imbeciles constitute a very negligible number in any locality or barrio,
including the localities of petitioners.
Included likewise in the delegated authority of the President, is the
prerogative to proclaim the results of the plebiscite or the voting the
Citizens' Assemblies. Petitioners deny the accuracy or correctness of
Proclamation No. 1102 that the 1973 Constitution was ratified by the
overwhelming vote of close to 15 million citizens because there was no
official certification to the results of the same from the Department of
Local Governments. But there was such certification as per Annex 1 to 1-A
to the Notes submitted by the Solicitor General counsel for respondents
public officers. This should suffice to dispose of this point. Even in the
absence of such certification, in much the same way that in passing law,
Congress or the legislative body is presumed to be in possession of the
facts upon which such laws are predicated (Justice Fernando, The Power of
Judicial Review, 1967 Ed., pp. 112-11 citing Lorenzo vs. Dir., etc., [1927] 50
Phil. 595 and O'Gonmore, et al: vs. Hartford, etc., [1931] 282 U.S. 251), it
should likewise be presumed that the President was in possession of the
fact upon which Proclamation No. 1102 was based. This presumption is
further strengthened by the fact that the Department of Local
Governments, the Department National Defense and the Philippine
Constabulary as well the Bureau of Posts are all under the President, which
offices as his alter ego, are presumptively acting for and in behalf of the
President and their acts are valid until disapproved or reprobated by the
President (Planas vs. Gil, 67 Phil. 62; Villen vs. Secretary of Interior, 67 Phil.
451). To deny the truth or the proclamation of the President as to the
overwhelming majority vote in the Citizens' Assemblies in favor of the new
Constitution, is to charge the President with falsification, which is a most
grievous accusation. Under the, rules of pleadings and evidence, the
petitioners have the burden of proof by preponderance of evidence in civil
cases and by proof beyond reasonable doubt in criminal prosecutions,
where the accused is always presumed to be innocent. Must this
constitutional right be reversed simply because the petitioner all assert the
contrary? Is the rule of law they pretend invoke only valid as long as it
favors them?
Page 52 of 158
The presumption of regularity in the performance of official functions is
accorded by the law and jurisprudence to acts of public officers whose
category in the official hierarchy is very much lower than that of the Chief
of State. What reason is there to withhold such a presumption in favor of
the President? Does the fact that the President belong to the party in
power and that four (4) of the five (5) senators who are petitioners in L-
36165 belong to the opposition party, justify a discrimination against the
President in matters of this nature? Unsupported as their word is by any
credible and competent evidence under the rules of evidence, must the
word of the petitioners prevail over that of the Chief Executive, because
they happen to be former senators and delegates to the Constitutional
Convention? More than any of the petitioners herein in all these cases, the
incumbent President realizes that he risks the wrath of his people being
visited upon him and the adverse or hostile verdict of history; because of
the restrictions on the civil liberties of his people, inevitable concomitants
of martial law, which necessarily entail some degree of sacrifice on the part
of the citizenry. Until the contrary is established or demonstrated, herein
petitioners should grant that the Chief Executive is motivated by what is
good for the security and stability of the country, for the progress and
happiness of the people. All the petitioners herein cannot stand on the
proposition that the rights under the 1935 Constitution are absolute and
invulnerable to limitations that may be needed for the purpose of bringing
about the reforms for which the petitioners pretend to be clamoring for
and in behalf of the people. The five (5) petitioners in L-36165 and four (4)
of the seven (7) petitioners in L-36164 were all participants in the political
drama of this country since 1946. They are witness to the frustrations of
well-meaning Presidents who wanted to effect the reforms, especially for
the benefit of the landless and the laboring class — how politics and
political bargaining had stymied the effectuation of such reforms thru
legislation. The eight (8) petitioners in L-36164 and L-36165 may not have
participated in the systematic blocking of the desired reforms in Congress
or outside of it; but the question may be asked as to what exactly they did
to support such reforms. For the last seven (7) decades since the turn of
the century, for the last thirty-five (35) years since the establishment of the
Commonwealth government in 1935 and for the last twenty seven (27)
years since the inauguration of the Republic on July 4, 1946, no tangible
substantial reform had been effected, funded and seriously implemented,
despite the violent uprisings in the thirties, and from 1946 to 1952, and the
violent demonstrations of recent memory. Congress and the oligarchs
acted like ostriches, "burying their heads in timeless sand. "Now the hopes
for the long-awaited reforms to be within a year or to are brighter. It would
seem therefore to the duty of everyone including herein petitioners to give
the present leadership the opportunity to institute and carry out the
needed reforms as provided for in the new or 1973 Constitution and thru
the means prescribed in that same Constitution.
As stated in Wheeler vs. Board of Trustees, "a court is never justified in
placing by implication a limitation upon the sovereign."

This Court in the Gonzales and Tolentino cases transcended its proper
sphere and encroached upon the province exclusively reserved to and by
the sovereign people. This Court did not heed to the principle that the
courts are not the fountain of all remedies for all wrongs. WE cannot
presume that we alone can speak with wisdom as against the judgment of
the people on the basic instrument which affects their very lives. WE
cannot determine what is good for the people or ought to be their
fundamental law. WE can only exercise the power delegated to Us by the
sovereign people, to apply and interpret the Constitution and the laws for
the benefit of the people, not against them nor to prejudice them. WE
cannot perform an act inimical to the interest of Our principal, who at any
time may directly exercise their sovereign power ratifying a new
Constitution in the manner convenient to them.
It is pertinent to ask whether the present Supreme Court can function
under the 1935 Constitution without being a part of the government
established pursuant thereto. Unlike in the Borden case, supra, where
there was at least another government claiming to be the legitimate organ
of the state of Rhode Island (although only on paper as it had no
established organ except Dorr who represented himself to be its head; in
the cases at bar there is no other government distinct from and
maintaining a position against the existing government headed by the
incumbent Chief Executive. (See Taylor vs. Commonwealth, supra). There is
not even a rebel government duly organized as such even only for domestic
purposes, let alone a rebel government engaged in international
negotiations. As heretofore stated, both the executive branch and the
legislative branch established under the 1935 Constitution had been
supplanted by the government functioning under the 1973 Constitution as
of January 17, 1973. The vice president elected under the 1935
Constitution does not asset any claim to the leadership of the Republic of
the Philippines. Can this Supreme Court legally exist without being part of
any government?
Brilliant counsel for petitioners in L-36165 has been quite extravagant in his
appraisal of Chief Justice Roger Brooke Taney whom he calls the "hero of
the American Bar," because during the American civil war he apparently
had the courage to nullify the proclamation of President Lincoln
suspending the privileges of the writ of habeas corpus in Ex
parte Merryman (Federal Case No. 9487 [1861]). But who exactly was Chief
Justice Roger Brooke Taney? The Editorial Board of Vol. 21 of the
Encyclopedia Brit., 1966 ed. (pp. 778-779, 1969 ed., pp. 654-657), briefly
recounts that he was born in 1777 in Calvert County, Maryland, of parents
who were landed aristocrats as well as slave owners. Inheriting the
traditional conservatism of his parents who belonged to the landed
aristocracy, Taney became a lawyer in 1799, practiced law and was later
appointed Attorney General of Maryland. He also was a member of the
Maryland state legislature for several terms. He was a leader of the
Federalist Party, which disintegrated after the war of 1812, compelling him
to join the Democratic Party of Andrew Jackson, also a slave owner and
landed aristocrat, who later appointed him first as Attorney General of the
United States, then Secretary of the Treasury and in 1836 Chief Justice of
the United States Supreme Court to succeed Chief Justice John Marshall, in
which position he continued for 28 years until he died on October 21, 1864.
His death "went largely unnoticed and unregretted." Because he himself
was a slave owner and a landed aristocrat, Chief Justice Taney sympathized
with the Southern States and, even while Chief Justice, hoped that the
Southern States would be allowed to secede peacefully from the Union.
That he had no sympathy for the Negroes was revealed by his decision
in Dred Scott vs. Sandford (19 How. 398 [1857]) where he pronounced that
the American Negro is not entitled to the rights of an American citizen and
that his status as a slave is determined by his returning to a slave state.
One can therefore discern his hostility towards President Lincoln when he
decided Ex parte Merryman, which animosity to say the least does no befit
a judicial mind. Such a man could hardly be spoken of as a hero of the
American Bar, least of all of the American nation. The choice of heroes
should not be expressed indiscriminately just to embellish one's rhetoric.
Distinguished counsel in L-36165 appears to have committed another
historical error, which may be due to his rhetorical in the Encyclopedia
Britannica (Vol. 9, 1969 ed., pp. 508-509) to this effect. On the contrary,
Encyclopedia Britannica (Vol. 17 Encyclopedia Brit., 1966 & 1969 eds., 732-
733), refers to Marshal Henri Philippe Petain as the genuine hero or "Savior
of Verdun"; because he held Verdun against the 1916 offensive of the
German army at the cost of 350,000 of his French soldiers, who were then
demoralized and plotting mutiny. Certainly, the surviving members of the
family of Marshal Petain would not relish the error. And neither would the
members of the clan of Marshal Foch acknowledge the undeserved
accolade, although Marshal Foch has a distinct place in history on his own
merits. The foregoing clarification is offered in the interest of true
scholarship and historical accuracy, so that the historians, researchers and
students may not be led astray or be confused by esteemed counsel's
eloquence and mastery of the spoken and written word as well as by his
eminence as law professor, author of law books, political leader, and
member of the newly integrated Philippine Bar.
It is quite intriguing why the eminent counsel and co-petitioner in L-36164
did not address likewise his challenge to the five (5) senators who are
petitioners in L-36165 to also act as "heroes and idealists," to defy the
President by holding sessions by themselves alone in a hotel or in their
houses if they can muster a quorum or by causing the arrest of other
senators to secure a quorum and thereafter remove respondents Puyat
and Roy (Avelino, et al. vs. Cuenco, et al. [1949] 83 Phil. 17), if they believe
most vehemently in the justice and correctness of their position that the
1973 Constitution has not been validly ratified, adopted or acquiesced in by
the people since January 18, 1973 until the present. The proclaimed
conviction of petitioners in L-36165 on this issue would have a ring of
Page 53 of 158
credibility, if they proceeded first to hold a rump session outside the
legislative building; because it is not unreasonable to demand or to exact
that he who exhorts others to be brave must first demonstrate his own
courage. Surely, they will not affirm that the mere filing of their petition in
L-36165 already made them "heroes and idealists." The challenge likewise
seems to insinuate that the members of this Court who disagree with
petitioners' views are materialistic cowards or mercenary fence-sitters. The
Court need not be reminded of its solemn duty and how to perform it. WE
refuse to believe that petitioners and their learned as well as illustrious
counsels, scholars and liberal thinkers that they are, do not recognize the
sincerity of those who entertain opinions that clash with their own. Such an
attitude does not sit well with the dictum that "We can differ without being
difficult; we can disagree without being disagreeable," which distinguished
counsel in L-36165 is wont to quote.
WE reserve the right to prepare an extensive discussion of the other points
raised by petitioners, which We do not find now necessary to deal with in
view of Our opinion on the main issue.
IN VIEW OF THE FOREGOING, ALL THE PETITIONS IN THESE FIVE
CASES SHOULD BE DISMISSED.
MAKASIAR, J., concurring:
Pursuant to Our reservation, We now discuss the other issues raised by the
petitioners.
II
EVEN IF ISSUE IS JUSTICIABLE, PEOPLE'S RATIFICATION, ADOPTION OR
ACQUIESCENCE CREATES STRONG PRESUMPTION OF VALIDITY OF 1973
CONSTITUTION.
As intimated in the aforecited cases, even the courts, which affirm the
proposition that the question as to whether a constitutional amendment or
the revised or new Constitution has been validly submitted to the people
for ratification in accordance with the procedure prescribed by the existing
Constitution, is a justiciable question, accord all presumption of validity to
the constitutional amendment or the revised or new Constitution after the
government officials or the people have adopted or ratified or acquiesced in
the new Constitution or amendment, although there was an illegal or
irregular or no submission at all to the people. (Collier vs. Gray, 4th Dec.
Dig. 935 [1934], Hammond vs. Clark, 71 SE 482-483; People vs. Sours, 31
Colo. 369, 74 Pac. 167, 102 Am. St. Rep. 34; Thompson vs. Winneth, 78
Neb. 379, 110 NW 1113, 10 L.R.A. [N.S.] 149; State vs. Laylin, 69 Ohio St.
Rep. 1, 68 NE 574; Weston vs. Ryan, 70 Neb. 211, 97 NW 347; Combs vs.
State, 81 Ga. 780, 8 SE 318; Woodward vs. State, 103 Ga. 496, 30 SE 522;

Corre vs. Cooney, 70 Mont. 355, 225 P 1007, 1009). As late as 1971, the
courts stressed that the constitutional amendment or the new Constitution
should not be condemned "unless our judgment its nullity is manifest
beyond reasonable doubt" (1971 case of Moore vs. Shanahan, 486 Pac. 2d
506, 207 Kan. 1, 645; and the 1956 case of Tipton vs. Smith, et al., supra).
Mr. Justice Enrique M. Fernando, speaking for the Court, pronounced that
the presumption of constitutionality must persist in the absence of factual
foundation of record to overthrow such presumption (Ermita-Malate Hotel,
etc. vs. City Mayor, L-24698, July 31, 1967, 20 SCRA 849).
III
CONSTITUTIONAL CONVENTION — CO-EQUAL WITH AND INDEPENDENT OF
CONGRESS, EXECUTIVE AND JUDICIARY.
The Constitutional Convention is co-ordinate and co-equal with, as well as
independent of, the three grand departments of the Government, namely,
the legislative, the executive and the judicial. As a fourth separate and
distinct branch, to emphasize its independence, the Convention cannot be
dictated to by either of the other three departments as to the content as
well as the form of the Charter that it proposes. It enjoys the same
immunity from interference or supervision by any of the aforesaid
branches of the Government in its proceedings, including the printing of its
own journals (Tañada and Fernando, Constitution of the Philippines, 1952
ed., Vol. I, pp. 8 9; Malcolm and Laurel, Phil. Const. Law, p. 22; Frantz vs.
Autry, 91 Pac. 193). Implicit in that independence, for the purpose of
maintaining the same unimpaired and in order that its work will not be
frustrated, the Convention has the power to fix the date for the plebiscite
and to provide funds therefor. To deny the Convention such prerogative,
would leave it at the tender mercy of both legislative and executive
branches of the Government. An unsympathetic Congress would not be
disposed to submit the proposed Constitution drafted by the Constitutional
Convention to the people for ratification, much less appropriate the
necessary funds therefor. That could have been the fate of the 1973
Constitution, because the same abolished the Senate by creating a
unicameral National Assembly to be presided by a Prime Minister who
wields both legislative and executive powers and is the actual Chief
Executive, for the President contemplated in the new Constitution
exercises primarily ceremonial prerogatives. The new Constitution likewise
shortened abruptly the terms of the members of the present Congress
(whose terms end on December 31, 1973, 1975 and 1977) which provides
that the new Constitution shall take effect immediately upon its ratification
(Sec. 16, Article XVII, 1973 Constitution). The fact that Section 2 of the
same Article XVIII secures to the members of Congress membership in the
interim National Assembly as long as they opt to serve therein within thirty
(30) days after the ratification of the proposed Constitution, affords them
little comfort; because the convening of the interim National Assembly
depends upon the incumbent President (under Sec. 3[1], Art. XVII, 1973
Constitution). Under the foregoing circumstances, the members of
Congress, who were elected under the 1935 Constitution, would not be
disposed to call a plebiscite and appropriate funds therefor to enable the
people to pass upon the 1973 Constitution, ratification of which means
their elimination from the political scene. They will not provide the means
for their own liquidation.
Because the Constitutional Convention, by necessary implication as it is
indispensable to its independence and effectiveness, possesses the power
to call a plebiscite and to appropriate funds for the purpose, it inescapably
must have the power to delegate the same to the President, who, in
estimation of the Convention can better determine appropriate time for
such a referendum as well as the amount necessary to effect the same; for
which reason the Convention thru Resolution No. 29 approved on
November 22, 1972, which superseded Resolution No. 5843 adopted on
November 16, 1972, proposed to the President "that a decree be issued
calling a plebiscite for the ratification of the proposed new Constitution
such appropriate date as he shall determine and providing for the
necessary funds therefor, ...," after stating in "whereas" clauses that the
1971 Constitutional Convention expected to complete its work by the end
of November, 1972 that the urgency of instituting reforms rendered
imperative the early approval of the new Constitution, and that the
national and local leaders desire that there be continuity in the immediate
transition from the old to the new Constitution.
If Congress can legally delegate to the Chief Executive or his subaltern the
power to promulgate subordinate rules and regulations to implement the
law, this authority to delegate implementing rules should not be denied to
the Constitutional Convention, a co-equal body.
Apart from the delegation to the Chief Executive of the power to call a
plebiscite and to appropriate funds therefor by the Constitutional
Convention thru its Resolution No. 29, the organization of the Citizens'
Assemblies for consultation on national issues, is comprehended within the
ordinance-making power of the President under Section 63 of the Revised
Administrative Code, which expressly confers on the Chief Executive
the power to promulgate administrative acts and commands touching on
the organization or mode of operation of the government or re-arranging
or re-adjusting any district, division or part of the Philippines "or disposing
of issues of general concern ... ." (Emphasis supplied). Hence, as
consultative bodies representing the localities including the barrios, their
creation by the President thru Presidential Decree No. 86 of December 31,
1972, cannot be successfully challenged.
The employment by the President of these Citizens' Assemblies for
consultation on the 1973 Constitution or on whether there was further
need of a plebiscite thereon, — both issues of national concern — is still
Page 54 of 158
within the delegated authority reposed in him by the Constitutional
Convention as aforesaid.
It should be noted that Resolution No. 29, which superseded Resolution
No. 5843, does not prescribe that the plebiscite must be conducted by the
Commission on Elections in accordance with the provisions of the 1971
Revised Election Code. If that were the intention of the Constitutional
Convention in making the delegation, it could have easily included the
necessary phrase for the purpose, some such phrase like "to call a
plebiscite to be supervised by the Commission on Elections in accordance
with the provisions of the 1971 Revised Election Code (or with existing
laws)." That the Constitutional Convention omitted such phrase, can only
mean that it left to the President the determination of the manner by
which the plebiscite should be conducted, who shall supervise the
plebiscite, and who can participate in the plebiscite. The fact that said
Resolution No. 29 expressly states "that copies of this resolution as
approved in plenary session be transmitted to the President of the
Philippines and the Commission on Elections for implementation," did not
in effect designate the Commission on Elections as supervisor of the
plebiscite. The copies of said resolution that were transmitted to the
Commission on Elections at best serve merely to notify the Commission on
Elections about said resolution, but not to direct said body to supervise the
plebiscite. The calling as well as conduct of the plebiscite was left to the
discretion of the President, who, because he is in possession of all the facts
funnelled to him by his intelligence services, was in the superior position to
decide when the plebiscite shall be held, how it shall be conducted and
who shall oversee it.
It should be noted that in approving said Resolution No. 29, the
Constitutional Convention itself recognized the validity of, or validated
Presidential Proclamation No. 1081 placing the entire country under
martial law by resolving to "propose to President Ferdinand E. Marcos that
a decree be issued calling a plebiscite ... ." The use of the term "decree" is
significant for the basic orders regulating the conduct of all inhabitants are
issued in that form and nomenclature by the President as the Commander
in Chief and enforcer of martial law. Consequently, the issuance by the
President of Presidential Decree No. 73 on December 1, 1972 setting the
plebiscite on January 15, 1973 and appropriating funds therefor pursuant
to said Resolution No. 29, is a valid exercise of such delegated authority.
Such delegation, unlike the delegation by Congress of the rule-making
power to the Chief Executive or to any of his subalterns, does not need
sufficient standards to circumscribe the exercise of the power delegated,
and is beyond the competence of this Court to nullify. But even if adequate
criteria should be required, the same are contained in the "Whereas"
clauses of the Constitutional Convention Resolution No. 29, thus:

WHEREAS, the 1971 Constitutional Convention is
expected to complete its work of drafting a proposed
new Constitution for the Republic by the end of
November, 1972;
WHEREAS, in view of the urgency of instituting reforms,
the early approval of the New Constitution has become
imperative;
WHEREAS, it is the desire of the national and local
leaders that there be continuity in the immediate
political transition from the old to the New
Constitution;" (Annex "1" of Answer, Res. No. 29,
Constitutional Convention).
As Mr. Justice Fernando, with whom Messrs. Justices Barredo, Antonio and
the writer concurred in the Plebiscite Cases, stated:
... Once this work of drafting has been completed, it
could itself direct the submission to the people for
ratification as contemplated in Article XV of the
Constitution. Here it did not do so. With Congress not
being in session, could the President, by the decree
under question, call for such a plebiscite? Under such
circumstances, a negative answer certainly could result
in the work of the Convention being rendered nugatory.
The view has been repeatedly expressed in many
American state court decisions that to avoid such
undesirable consequence the task of submission
becomes ministerial, with the political branches devoid
of any discretion as to the holding of an election for
that purpose. Nor is the appropriation by him of the
amount necessary to be considered as offensive to the
Constitution. If it were done by him in his capacity as
President, such an objection would indeed have been
formidable, not to say insurmountable. If the
appropriation were made in his capacity as agent of the
Convention to assure that there be submission to the
people, then such an argument loses force. The
Convention itself could have done so. It is
understandable why it should be thus. If it were
otherwise, then a legislative body, the appropriating
arm of the government, could conceivably make use of
such authority to compel the Convention to submit to
its wishes, on pain of being rendered financially
distraught. The President then, if performing his role as
its agent, could be held as not devoid of such
competence. (pp. 2-3, concurring opinion of J. Fernando
in L-35925, etc., emphasis supplied).
IV
VAGUENESS OR AMBIGUITY DOES NOT INVALIDATE THE
1973 CONSTITUTION
(1) Petitions challenge the 1973 draft as vague and incomplete, and alluded
to their arguments during the hearings on December 18 and 19, 1972 on
the Plebiscite Cases. But the inclusion of questionable or ambiguous
provisions does not affect the validity of the ratification or adoption of the
1973 Constitution itself (Pope vs. Gray, 104 SO, 2d 841; 7th Dec. pp. 212-
219, 1956-1966).
Alexander Hamilton, one of the leading founders and defenders of the
American Constitution, answering the critics of the Federal Constitution,
stated that: "I never expect to see a perfect work from imperfect man. The
result of the deliberations of all collective bodies must necessarily be a
compound, as well of the errors and prejudices as of the good sense and
wisdom, of the individuals of whom they are composed. The compacts
which are to embrace thirteen distinct States in a common bond of amity
and union, must necessarily be a compromise of as many dissimilar
interests and inclinations. How can perfection spring from such materials?"
(The Federalist, Modern Library Ed., pp. xx-xxi).
(2) The 1973 Constitution is likewise impugned on the ground that it
contains provisions which are ultra vires or beyond the power of the
Constitutional Convention to propose.
This objection relates to the wisdom of changing the form of government
from Presidential to Parliamentary and including such provisions as Section
3 of Article IV, Section 15 of Article XIV and Sections 3(2) and 12 of Article
XVII in the 1973 Constitution.
Article IV —
Sec. 3. The right of the people to be secure in their
persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature
and for any purpose shall not be violated, and no
search warrant or warrant of arrest shall issue except
upon probable cause to be determined by the judge, or
such other responsible officer as may be authorized by
law, after examination under oath or affirmation of the
complainant and the witnesses may produce, and
Page 55 of 158
particularly describing the place to be searched, and
the persons or things to be seized.
Article XIV —
Sec. 15. Any provision of paragraph one, Section
fourteen, Article Eight and of this Article
notwithstanding, the Prime Minister may enter into
international treaties or agreements as the national
welfare and interest may require." (Without the
consent of the National Assembly.)
Article XVII —
Sec. 3(2) All proclamations, orders, decrees,
instructions, and acts promulgated, issued, or done by
the incumbent President shall be part of the law of the
land, and shall remain valid, legal, binding and effective
even after lifting of martial law or the ratification of this
Constitution, unless modified, revoked, or superseded
by subsequent proclamations, orders, decrees,
instructions, or other acts of the incumbent President,
or unless expressly and explicitly modified or repealed
by the regular National Assembly.
xxx xxx xxx
Sec. 12. All treaties, executive agreements, and
contracts entered into by the Government, or any
subdivision, agency, or instrumentality thereof,
including government-owned or controlled
corporations, are hereby recognized as legal, valid and
binding. When the national interest so requires, the
incumbent President of the Philippines or the interim
Prime Minister may review all contracts, concessions,
permits, or other forms of privileges for the
exploration, development, exploitation, or utilization of
natural resources entered into, granted, issued or
acquired before the ratification of this Constitution.
In the Plebiscite Cases (L-35925, L-35929, L-35940, L-35942, L-35948, L-
35953, L-35961, L-35965, & L-35979), Chief Justice Roberto Concepcion,
concurred in by Justices Fernando, Barredo, Antonio and the writer,
overruled this objection, thus:
... Regardless of the wisdom and
moral aspects of the contested

provisions of the proposed
Constitution, it is my considered
view that the Convention was
legally deemed fit to propose —
save perhaps what is or may be
insistent with what is now known,
particularly in international law,
as Jus Cogens — not only because
the Convention exercised sovereign
powers delegated thereto by the
people — although insofar only as
the determination of the proposals
to be made and formulated by said
body is concerned — but also,
because said proposals cannot be
valid as part of our Fundamental
Law unless and until "approved by
the majority of the votes cast at an
election which" said proposals "are
submitted to the people for their
ratification," as provided in Section
1 of Article XV of the 1935
Constitution. (Pp. 17-18, Decision in
L-35925, etc.).
This Court likewise enunciated in Del Rosario vs. Comelec (L-32476, Oct. 20,
1970, 35 SCRA 367) that the Constitutional Convention has the authority to
"entirely overhaul the present Constitution and propose an entirely new
Constitution based on an ideology foreign to the democratic system ...;
because the same will be submitted to the people for ratification. Once
ratified by the sovereign people, there can be no debate about the validity
of the new Constitution."
Mr. Justice Fernando, concurring in the same Plebiscite Cases, cited the
foregoing pronouncement in the Del Rosario case, supra, and added: "... it
seems to me a sufficient answer that once convened, the area open for
deliberation to a constitutional convention ..., is practically limitless" (citing
Cf. Koehler vs. Hill, 14 NW 738, 60 Iowa 543 [1883]; Hatch Stoneman, 6 P
734, 66 Cal. 632 [1885]; MacMillan v. Blattner, 25 NW 245, 67 Iowa 287
[1895]; State v. Powell, 27 SO 297, 77 Miss. 543 [1900]; Hammond v. Clark,
71 SE 479, 136 Ga. 313 [1911]; Hamilton v. Vaughan, 179 NW 533, 212
Mich. 31 [1920]; State v. Smith, 138 NE 881, 105 Ohio St. 570 [1922];
Looney vs. Leeper, 292 P 365, 145 Okl. 202 [1930]; School District vs. City of
Pontiac, 247 NW 474, 262 Mich. 338 [1933]).
Mr. Justice Barredo, in his concurring opinion in said Plebiscite Cases,
expressed the view "that when the people elected the delegates to the
Convention and when the delegates themselves were campaigning, such
limitation of the scope of their function and objective was not in their
minds."
V
1973 CONSTITUTION DULY ADOPTED AND
PROMULGATED.
Petitioners next claim that the 1971 Constitutional Convention adjourned
on November 30, 1972 without officially promulgating the said
Constitution in Filipino as required by Sections 3(1) of Article XV on General
Provisions of the 1973 Constitution. This claim is without merit because
their Annex "M" is the Filipino version of the 1973 Constitution, like the
English version, contains the certification by President Diosdado Macapagal
of the Constitutional Convention, duly attested by its Secretary, that the
proposed Constitution, approved on second reading on the 27th day of
November, 1972 and on third reading in the Convention's 291st plenary
session on November 29, 1972 and accordingly signed on November 1972
by the delegates whose signatures are thereunder affixed. It should be
recalled that Constitutional Convention President Diosdado Macapagal
was, as President of the Republic 1962 to 1965, then the titular head of the
Liberal Party to which four (4) of the petitioners in L-36165 including their
counsel, former Senator Jovito Salonga, belong. Are they repudiating and
disowning their former party leader and benefactor?
VI
ARTICLE XV OF 1935 CONSTITUTION DOES NOT
PRESCRIBE ANY PROCEDURE FOR RATIFICATION OF
1973 CONSTITUTION.
(1) Article XV of the 1935 Constitution simply provides that "such
amendments shall be valid as part of this Constitution when approved by a
majority of the votes cast at an election at which the amendments are
submitted to the people for ratification."
But petitioners construe the aforesaid provision to read: "Such
amendments shall be valid as part of this Constitution when approved by a
majority of the votes cast at an election called by Congress at which the
amendments are submitted for ratification by the qualified electors defined
in Article V hereof, supervised by the Commission on Elections in
accordance with the existing election law and after such amendments shall
have been published in all the newspapers of general circulation for at least
four months prior to such election."
Page 56 of 158
This position certainly imposes limitation on the sovereign people, who
have the sole power of ratification, which imposition by the Court is never
justified (Wheeler vs. Board of Trustees, supra).
In effect, petitioners and their counsels are amending by a strained and
tortured construction Article XV of the 1935 Constitution. This is a clear
case of usurpation of sovereign power they do not possess — through
some kind of escamotage. This Court should not commit such a grave error
in the guise of judicial interpretation.
In all the cases where the court held that illegal or irregular submission,
due to absence of substantial compliance with the procedure prescribed by
the Constitution and/or the law, nullifies the proposed amendment or the
new Constitution, the procedure prescribed by the state Constitution is so
detailed that it specifies that the submission should be at a general or
special election, or at the election for members of the State legislature only
or of all state officials only or of local officials only, or of both state and
local officials; fixes the date of the election or plebiscite limits the
submission to only electors or qualified electors; prescribes the publication
of the proposed amendment or a new Constitution for a specific period
prior to the election or plebiscite; and designates the officer to conduct the
plebiscite, to canvass and to certify the results, including the form of the
ballot which should so state the substance of the proposed amendments to
enable the voter to vote on each amendment separately or authorizes
expressly the Constitutional Convention or the legislature to determine the
procedure or certain details thereof. See the State Constitutions of
Alabama [1901]; Arizona [1912]; Arkansas [1874]; Colorado [1976];
Connecticut [1818]; Florida [1887]; Georgia [1945]; Illinois [1970]; Indiana
[1851]; Iowa [1857]; Kansas [1861]; Kentucky [1891]; Louisiana [1921];
Maryland [1867]; Massachusetts [1790]; Michigan [1909]; Minnesota
[1857]; Mississippi [1890]; and Missouri [1945]).
As typical examples:
Constitution of Alabama (1901):
Article XVIII. Mode of Amending the Constitution
Sec. 284. Legislative Proposals. Amendments may be
proposed to this Constitution by the legislature in the
manner following: The proposed amendments shall be
read in the house in which they originate on three
several days, and, if upon the third reading, three-fifths
of all the members elected to that house shall vote in
favor thereof, the proposed amendments shall be sent
to the other house, in which they shall likewise be read
on three several days, and if upon the third reading,
three-fifths of all the members elected that house shall
vote in favor of the proposed amendments,

the legislature shall order an election by the qualified
electors of the state upon such proposed amendments,
to be held either at the general election next succeeding
the session of the legislature at which the amendments
are proposed or upon another day appointed by the
legislature, not less than three months after the final
adjournment of the session of the legislature at which
the amendments were proposed. Notice of such
election, together with the proposed amendments,
shall be given by proclamation of the governor, which
shall be published in every county in such manner as
the legislature shall direct, for at least eight successive
weeks next preceding the day appointed for such
election. On the day so appointed an election shall be
held for the vote of the qualified electors of the state
upon the proposed amendments. If such election be
held on the day of the general election, the officers of
such general election shall open a poll for the vote of
the qualified electors upon the proposed amendments;
if it be held on a day other than that of a general
election, officers for such election shall be appointed;
and the election shall be held in all things in accordance
with the law governing general elections. In all
elections upon such proposed amendments, the votes
cast thereat shall be canvassed, tabulated, and returns
thereof be made to the secretary of state, and counted,
in the same manner as in elections for representatives
to the legislature; and if it shall thereupon appear that
a majority of the qualified electors who voted at such
election upon the proposed amendments voted in
favor of the same, such amendments shall be valid to
all intents and purposes as parts of this Constitution.
The result of such election shall be made known by
proclamation of the governor. Representation in the
legislature shall be based upon population, and such
basis of representation shall not be changed by
constitutional amendments.
Sec. 285. Form of ballot for amendment. Upon the
ballots used at all elections provided for in section 284
of this Constitution, the substance or subject matter of
each proposed amendment shall be so printed that the
nature thereof shall be clearly indicated. Following
each proposed amendment on the ballot shall be
printed the word "Yes" and immediately under that
shall be printed the word "No". The choice of the
elector shall be indicated by a cross mark made by him
or under his direction, opposite the word expressing his
desire, and no amendment shall be adopted unless it
receives the affirmative vote of a majority of all the
qualified electors who vote at such election.
Constitution of Arkansas (1874):
Constitution of Maryland (1867):
Article XIX. Miscellaneous Provisions.
Sec. 22. Constitutional amendments. Either branch of
the General Assembly at a regular session thereof may
propose amendments to this Constitution, and, if the
same be agreed to by a majority of all the members,
elected to each house, such proposed
amendments shall be entered on the journal with the
yeas and nays, and published in at least one newspaper
in each county, where a newspaper is published, for six
months immediately preceding the next general
election for Senators and Representatives, at which
time the same shall be submitted to the electors of the
State for approval or rejection, and if a majority of the
electors voting at such election adopt such
amendments, the same shall become a part of this
Constitution; but no more than three amendments shall
be proposed or submitted at the same time. They shall
be so submitted as to enable the electors to vote on
each amendment separately.
Constitution of Kansas (1861):
Article XIV. Amendments.
Sec. 1. Proposal of amendments; publications;
elections. Propositions for the amendment of this
constitution may be made by either branch of the
legislature; and if two thirds of all the members elected
to each house shall concur therein, such proposed
amendments, together with the yeas and nays, shall be
entered on the journal; and the secretary of state shall
cause the same to be published in at least one
newspaper in each county of the state where a
newspaper is published, for three months preceding
the next election for representatives, at which time, the
same shall be submitted to the electors, for their
approval or rejection; and if a majority of the electors
voting on said amendments, at said election, shall
adopt the amendments, the same shall become a part
of the constitution. When more than one amendment
Constitution of Missouri (1945):
shall be submitted at the same time, they shall be so
Page 57 of 158
submitted as to enable the electors to vote on each
amendments separately; and not more than three
propositions to amend shall be submitted at the same
election.
Article XIV. Amendments to the Constitution.
Sec. 1. Proposal in general assembly; publication;
submission to voters; governor's proclamation. The
General Assembly may propose Amendments to this
Constitution; provided that each Amendment shall be
embraced in a separate bill, embodying the Article or
Section, as the same will stand when amended and
passed by three fifths of all the members elected to
each of the two Houses, by yeas and nays, to be
entered on the Journals with the proposed
Amendment. The bill or bills proposing amendment or
amendments shall be published by order of the
Governor, in at least two newspapers, in each County,
where so many may be published, and where not more
than one may be published, then in the newspaper, and
in three newspapers published in the City of Baltimore,
once a week for four weeks immediately preceding the
next ensuing general election, at which the proposed
amendment or amendments shall be submitted, in a
form to be prescribed by the General Assembly, to the
qualified voters of the State for adoption or rejection.
The votes cast for and against said proposed
amendment or amendments, severally, shall be
returned to the Governor, in the manner prescribed in
other cases, and if it shall appear to the Governor that
a majority of the votes cast at said election on said
amendment or amendments, severally, were cast in
favor thereof, the Governor shall, by his proclamation,
declare the said amendment or amendments having
received said majority of votes, to have been adopted
by the people of Maryland as part of the Constitution
thereof, and henceforth said amendment or
amendments shall be part of the said Constitution.
When two or more amendments shall be submitted in
the manner aforesaid, to the voters of this State at the
same election, they shall be so submitted as that each
amendment shall be voted on separately.

Article XII. Amending the Constitution.
Sec. 2(b). Submission of amendments proposed by
general assembly or by the initiative. All amendments
proposed by the general assembly or by the initiative
shall be submitted to the electors for their approval or
rejection by official ballot title as may be provided by
law, on a separate ballot without party designation, at
the next general election, or at a special election called
by the governor prior thereto, at which he may submit
any of the amendments. No such proposed
amendment shall contain more than one amended and
revised article of this constitution, or one new article
which shall not contain more than one subject and
matters properly connected therewith. If possible, each
proposed amendment shall be published once a week
for two consecutive weeks in two newspapers of
different political faith in each county, the last
publication to be not more than thirty nor less than
fifteen days next preceding the election. If there be but
one newspaper in any county, publication of four
consecutive weeks shall be made. If a majority of the
votes cast thereon is in favor of any amendment, the
same shall take effect at the end of thirty days after the
election. More than one amendment at the same
election shall be so submitted as to enable the electors
to vote on each amendment separately.
Article XV of the 1935 Constitution does not require a specific procedure,
much less a detailed procedure for submission or ratification. As
heretofore stated, it does not specify what kind of election at which the
new Constitution shall be submitted; nor does it designate the Commission
on Elections to supervise the plebiscite. Neither does it limit the ratification
to the qualified electors as defined in Article V of the 1935 Constitution.
Much less does it require the publication of the proposed Constitution for
any specific period before the plebiscite nor does it even insinuate that the
plebiscite should be supervised in accordance with the existing election
law.
(2) As aforequoted, Article XV does not indicate the procedure for
submission of the proposed Constitution to the people for ratification. It
does not make any reference to the Commission on Elections as the body
that shall supervise the plebiscite. And Article XV could not make any
reference to the Commission on Elections because the original 1935
Constitution as ratified on May 14, 1935 by the people did not contain
Article X on the Commission on Elections, which article was included
therein pursuant to an amendment by that National Assembly proposed
only about five (5) years later — on April 11, 1940, ratified by the people
on June 18, 1940 as approved by the President of the United States on
December 1940 (see Sumulong vs. Commission, 70 Phil. 703, 713, 715;
Gonzales, Phil. Const. Law, 1966 ed., p. 13). So it cannot be said that the
original framers of the 1935 Constitution as ratified May 14, 1935 intended
that a body known as the Commission on Elections should be the one to
supervise the plebiscite, because the Commission on Elections was not in
existence then as was created only by Commonwealth Act No. 607
approved on August 22, 1940 and amended by Commonwealth Act No. 657
approved on June 21, 1941 (see Tañada & Carreon, Political Law of the
Philippines, Vol. I, 1961 ed., pp. 475-476; Sumulong vs. Commission, 170
Phil. 703, 708-715; 73 Phil. 288, 290-300; Tañada & Fernando, Constitution
of the Philippines, 1953 ed., Vol. I, p. 5, Vol. II,
pp. 11-19).
Because before August, 1940 the Commission on Election was not yet in
existence, the former Department of Interior (now Department of Local
Governments and Community Development) supervised the plebiscites on
the 1937 amendment on woman's suffrage, the 1939 amendment to the
Ordinance appended to the 1935 Constitution (Tydings-Kocialkowski Act of
the U.S. Congress) and the three 1940 amendments on the establishment
of a bicameral Congress, the re-election of the President and the Vice-
President, and the creation of the Commission on Elections (ratified on
June 18, 1940). The supervision of said plebiscites by the then Department
of Interior was not automatic, but by virtue of an express authorization in
Commonwealth Act Nos. 34, 49 and 517.
If the National Assembly then intended that the Commission on Elections
should also supervise the plebiscite for ratification of constitutional
amendments or revision, it should have likewise proposed the
corresponding amendment to Article XV by providing therein that the
plebiscite on amendments shall be supervised by the Commission on
Elections.
3) If the framers of the 1935 Constitution and the people in ratifying the
same on May 14, 1935 wanted that only the qualified voters under Article
V of the 1935 Constitution should participate in the referendum on any
amendment or revision thereof, they could have provided the same in
1935 or in the 1940 amendment by just adding a few words to Article XV
by changing the last phrase to "submitted for ratification to the qualified
electors as defined in Article V hereof," or some such similar phrases.
Then again, the term "people" in Article XV cannot be understood to
exclusively refer to the qualified electors under Article V of the 1935
Constitution because the said term "people" as used in several provisions
of the 1935 Constitution, does not have a uniform meaning. Thus in the
preamble, the term "Filipino people" refer, to all Filipino citizens of all ages
of both sexes. In Section 1 of Article II on the Declaration of Principles, the
term "people" in whom sovereignty resides and from whom all
Page 58 of 158
government authority emanates, can only refer also to Filipino citizens of
all ages and of both sexes. But in Section 5 of the same Article II on social
justice, the term "people" comprehends not only Filipino citizens but also
all aliens residing in the country of all ages and of both sexes. Likewise, that
is the same connotation of the term "people" employed in Section 1(3) of
Article III on the Bill of Rights concerning searches and seizures.
When the 1935 Constitution wants to limit action or the exercise of a right
to the electorate, it does so expressly as the case of the election of
senators and congressmen. Section 2 Article VI expressly provides that the
senators "shall be chosen at large by the qualified electors of the
Philippines as may provided by law." Section 5 of the same Article VI
specifically provides that congressmen shall "be elected by the qualified
electors." The only provision that seems to sustain the theory of petitioners
that the term "people" in Article XV should refer to the qualified electors as
defined in Article V of the 1935 Constitution is the provision that the
President and Vice-President shall be elected "by direct vote of the
people." (Sec. 2 of Art. VII of the 1935 Constitution). But this alone cannot
be conclusive as to such construction, because of explicit provisions of
Sections 2 and 5 of Article VI, which specifically prescribes that the
senators and congressmen shall be elected by the qualified electors.
As aforesaid, most of the constitutions of the various states of the United
States, specifically delineate in detail procedure of ratification of
amendments to or revision of said Constitutions and expressly require
ratification by qualified electors, not by the generic term "people".
The proposal submitted to the Ozamis Committee on the Amending
Process of the 1934-35 Constitutional Convention satisfied that the
amendment shall be submitted to qualified election for ratification. This
proposal was not accepted indicating that the 1934-35 Constitutional
Convention did intend to limit the term "people" in Article XV of the 1935
Constitution to qualified electors only. As above demonstrated, the 1934-35
Constitutional Convention limits the use of the term "qualified electors" to
elections of public officials. It did not want to tie the hands of succeeding
future constitutional conventions as to who should ratify the proposed
amendment or revision.
(4) It is not exactly correct to opine that Article XV of 1935 Constitution on
constitutional amendment contemplates the automatic applicability of
election laws to plebiscites on proposed constitutional amendments or
revision.
The very phraseology of the specific laws enacted by the National Assembly
and later by Congress, indicates that there is need of a statute expressly
authorizing the application of the election laws to plebiscites of this nature.
Thus, Com. Act No. 34 on the woman's suffrage amendment enacted on
September 30, 1936, consists of 12 sections and, aside from providing that

"there shall be held a plebiscite on Friday, April 30, 1937, on the question
of woman's suffrage ... and that said amendment shall be published in the
Official Gazette in English and Spanish for three consecutive issues at least
fifteen (15) days prior to said election, ... and shall be posted in a
conspicuous place in its municipal and provincial office building and in its
polling place not later than April 22, 1937" (Sec. 12, Com. Act No. 34),
specifies that the provisions of the Election Law regarding, the holding of
a special election, insofar as said provisions are not in conflict with it,
should apply to the said plebiscite (Sec. 3, Com. Act No. 34)1; and, that the
votes cast according to the returns of the board of inspectors shall be
counted by the National Assembly (Sec. 10, Com. Act No. 34).
The election laws then in force before 1938 were found in Sections 392-
483 of the Revised Administrative Code.
Sec. 1 of Com. Act No. 357, the previous Election Code enacted on August
22, 1938, makes it expressly applicable to plebiscites. Yet the subsequent
laws, namely, Com. Act Nos. 492 and 517 and Rep. Act No. 73 calling for
the plebiscite on the constitutional amendments in 1939, 1940 and 1946,
including the amendment creating the Commission on Elections,
specifically provided that the provisions of the existing election law shall
apply to such plebiscites insofar as they are not inconsistent with the
aforesaid Com. Act Nos. 492 and 517, as well as Rep. Act No. 73. Thus —
Commonwealth Act No. 492, enacted on September 19, 1939, calling for a
plebiscite on the proposed amendments to the Constitution adopted by
the National Assembly on September 15, 1939, consists of 8 sections and
provides that the proposed amendments to the Constitution adopted in
Resolution No. 39 on September 15, 1939 "shall be submitted to the
Filipino people for approval or disapproval at a general election to be held
throughout the Philippines on Tuesday, October 24, 1939"; that the
amendments to said Constitution proposed in "Res. No. 38, adopted on the
same date, shall be submitted at following election of local officials," (Sec.
1, Com. Act No. 492) that the said amendments shall be published in
English and Spanish in three consecutive issues of the Official Gazette at
least ten (10) days prior to the elections; that copies thereof shall be posted
not later than October 20, 1939 (Sec. 2, Com. Act 492); that the election
shall be conducted according to provisions of the Election Code insofar as
the same may be applicable; that within thirty (30) days after the
election, Speaker of the National Assembly shall request the President to
call a special session of the Assembly for the purpose of canvassing the
returns and certify the results thereof (Sec. 6, Com. Act No. 492).
Commonwealth Act No. 517, consisting of 11 sections, was approved on
April 25, 1940 and provided, among others: that the plebiscite on the
constitutional amendments providing bicameral Congress, re-election of
the President and Vice-President, and the creation of a Commission on
Elections shall be held at a general election on June 18, 1940 (Sec. 1); that
said amendments shall be published in three consecutive issues of the
Official Gazette in English and Spanish at least 20 days prior to the election
and posted in every local government office building and polling place not
later than May 18, 1940 (Sec. 2); that the election shall be conducted in
conformity with the Election Code insofar as the same may be applicable
(Sec. 3) that copies of the returns shall be forwarded to the Secretary of
National Assembly and the Secretary of Interior (Sec. 7); that the National
Assembly shall canvass the returns to certify the results at a special session
to be called by President (Sec. 8).
Republic Act No. 73 approved on October 21, 1946 calling for a plebiscite
on the parity amendment consists of 8 sections provides that the
Amendment "shall be submitted to the people, for approval or
disapproval, at a general election which shall be held on March 11, 1947, in
accordance with the provisions of this Act" (Sec. 1, R.A. No. 73); that the
said amendment shall be published in English and Spanish in three
consecutive issues of the Official Gazette at least 20 days prior to the
election; that copies of the same shall be posted in a conspicuous place and
in every polling place not later than February 11, 1947 (Section 2, R.A. No.
73); that the provisions of Com. Act No. 357 (Election Code) and Com. Act
No. 657 creating the Commission on Elections, shall apply to the election
insofar as they are not inconsistent with this Act (Sec. 3, R.A. No. 73); and
that within 30 days after the election, the Senate and House of
Representatives shall hold a joint session to canvass the returns and certify
the results thereof (Section 6, R.A. No. 73).
From the foregoing provisions, it is patent that Article XV of the 1935
Constitution does not contemplate nor envision the automatic application
of the election law; and even at that, not all the provisions of the election
law were made applicable because the various laws aforecited contain
several provisions which are inconsistent with the provisions of the Revised
Election Code (Com. Act No. 357). Moreover, it should be noted that the
period for the publication of the copies of the proposed amendments was
about 10 days, 15 days or 20 days, and for posting at least 4 days, 8 days or
30 days.
Republic Acts Nos. 180 and 6388 likewise expressly provide that the
Election Code shall apply to plebiscites (See. 2, R.A. No. 180, as amended,
and Section 2, Rep. Act No. 6388).
If the Election Code ipso facto applies to plebiscites under Article XV of the
1935 Constitution, there would be no need for Congress to expressly
provide therefor in the election laws enacted after the inauguration of the
Commonwealth government under the 1935 Constitution.
(5) Article XV of the 1935 Constitution does not specify who can vote and
how they shall vote. Unlike the various State Constitutions of the American
Union (with few exceptions), Article XV does not state that only qualified
Page 59 of 158
electors can vote in the plebiscite. As above-intimated, most of the
Constitutions of the various states of the United States provide for very
detailed amending process and specify that only qualified electors can vote
at such plebiscite or election.
Congress itself, in enacting Republic Act No. 3590, otherwise known as the
Barrio Charter, which was approved on June 17, 1967 and superseded
Republic Act No. 2370, expanded the membership of the barrio assembly
to include citizens who are at least 18 years of age, whether literate or not,
provided they are also residents of the barrio for at least 6 months (Sec. 4,
R.A. No. 3590).
Sec. 4. The barrio assembly. — The barrio assembly
shall consist of all persons who are residents of the
barrio for at least six months, eighteen years of age or
over, citizens of the Republic of the Philippines and who
are duly registered in the list of barrio assembly
members kept by the Barrio Secretary.
The barrio assembly shall meet at least once a year to
hear the annual report of the barrio council concerning
the activities and finances of the barrio.
It shall meet also at the case of the barrio council or
upon written petition of at least One-Tenth of the
members of the barrio assembly.
No meeting of the barrio assembly shall take place
unless notice is given one week prior to the meeting
except in matters involving public safety or security in
which case notice within a reasonable time shall be
sufficient. The barrio captain, or in his absence, the
councilman acting as barrio captain, or any assembly
member selected during the meeting, shall act as
presiding officer at all meetings of the barrio assembly.
The barrio secretary or in his absence, any member
designated by the presiding officer to act as secretary
shall discharge the duties of secretary of the barrio
assembly.
For the purpose of conducting business and taking any
official action in the barrio assembly, it is necessary
that at least one-fifth of the members of the barrio
assembly be present to constitute a quorum. All actions
shall require a majority vote of these present at the
meeting there being a quorum.

Sec. 5. Powers of the barrio assembly. — The powers of
the barrio assembly shall be as follows:
a. To recommend to the barrio
council the adoption of measures
for the welfare of the barrio;
b. To decide on the holding of a
plebiscite as provided for in Section
6 of this Act;
c. To act on budgetary and
supplemental appropriations and
special tax ordinances submitted
for its approval by the barrio
council; and
d. To hear the annual report council
concerning the activities and
finances of the assembly.
Sec. 6. Plebiscite. — A plebiscite may be held in the
barrio when authorized by a majority vote of the
members present in the barrio assembly, there being a
quorum, or when called by at least four members of
the barrio council; Provided, however, That no
plebiscite shall be held until after thirty days from its
approval by either body, and such plebiscite has been
given the widest publicity in the barrio, stating the
date, time, and place thereof, the questions or issues to
be decided, action to be taken by the voters, and such
other information relevant to the holding of the
plebiscite.
All duly registered barrio assembly members qualified
to vote may vote in the plebiscite. Voting procedures
may be made either in writing as in regular election,
and/or declaration by the voters to the board of
election tellers. The board of election tellers shall be
the same board envisioned by section 8, paragraph 2 of
this Act, in case of vacancies in this body, the barrio
council may fill the same.
A plebiscite may be called to decide on the recall of any
member of the barrio council. A plebiscite shall be
called to approve any budgetary, supplemental
appropriations or special tax ordinances.
For taking action on any of the above enumerated
measures, majority vote of all the barrio assembly
members registered in the list of barrio secretary is
necessary.
xxx xxx xxx
Sec 10. Qualifications of voters and candidates. —
Every citizen of the Philippines, twenty-one years of
age or over, able to read and write, who has been a
resident of the barrio during the six months
immediately preceding the election, duly registered in
the list of voters kept by the barrio secretary, who is
not otherwise disqualified, may vote or be a candidate
in the barrio elections.
The following persons shall not be qualified to vote:
a. Any person who has been
sentenced by final judgment to
suffer one year or more of
imprisonment, within two years
after service of his sentence;
b. Any person who has violated his
allegiance to the Republic of the
Philippines; and
c. Insane or feeble-minded persons.
All these barrio assembly members, who are at least 18 years of age,
although illiterate, may vote at the plebiscite on the recall of any member
of the barrio council or on a budgetary, supplemental appropriation, or
special ordinances, a valid action on which requires "a majority vote of all
of the barrio assembly members registered in the list of the barrio
secretary" (par. 5, Sec. 6, R.A. No. 3590). Such plebiscite may be authorized
by a majority vote of the members present in the barrio assembly, there
being a quorum (par. 1, Sec. 6).
However, in the case of election of barrio officials, only Filipino citizens,
who are at least 21 years of age, able to read and write, residents of the
barrio during the 6 months immediately preceding the election and duly
registered in the list of voters kept by the barrio secretary, not otherwise
disqualified, may vote (Sec. 10, R.A. No. 3590).
Page 60 of 158
Paragraph 2 of Section 6 likewise authorizes open voting as it provides that
"voting procedures may be made ... either in writing as in regular elections,
and/or declaration by the voters to the board of election tellers."
That said paragraph 2 of Section 6 provides that "all duly registered barrio
assembly members qualified to vote may vote in the plebiscite," cannot
sustain the position of petitioners in G.R. No. L-36165 that only those who
are 21 years of age and above and who possess all other qualifications of a
voter under Section 10 of R.A. No. 3590, can vote on the plebiscites
referred to in Section 6; because paragraph 3 of Section 6 does not
expressly limit the voting to those with the qualifications under Section 10
as said Section 6 does not distinguish between those who are 21 or above
on the one hand and those 18 or above but below 21 on the other, and
whether literate or not, to constitute a quorum of the barrio assembly.
Consequently, on questions submitted for plebiscite, all the registered
members of the barrio assembly can vote as long as they are 18 years of
age or above; and that only those who are 21 years of age or over and can
read and write, can vote in the elections of barrio officials.
Otherwise there was no sense in extending membership in the barrio
assembly to those who are at least 18 years of age, whether literate or not.
Republic Act No. 3590 could simply have restated Section 4 of Republic Act
No. 2370, the old Barrio Charter, which provided that only those who are
21 and above can be members of the barrio assembly.
Counsels Salonga and Tañada as well as all the petitioners in L-36165 and
two of the petitioners in L-36164 participated in the enactment of Republic
Act No. 3590 and should have known the intendment of Congress in
expanding the membership of the barrio assembly to include all those 18
years of age and above, whether literate or not.
If Congress in the exercise of its ordinary legislative power, not as a
constituent assembly, can include 18-year olds as qualified electors for
barrio plebiscites, this prerogative can also be exercised by the Chief
Executive as delegate of the Constitutional Convention in regard to the
plebiscite on the 1973 Constitution.
As heretofore stated, the statement by the President in Presidential
Proclamation No. 1102 that the 1973 Constitution was overwhelmingly
ratified by the people through the Citizens' Assemblies in a referendum
conducted from January 10 to 15, 1973, should be accorded the
presumption of correctness; because the same was based on the
certification by the Secretary of the Department of Local Government and
Community Development who tabulated the results of the referendum all
over the country. The accuracy of such tabulation and certification by the
said Department Secretary should likewise be presumed; because it was

done in the regular performance of his official functions aside from the fact
that the act of the Department Secretary, as an alter ego of the President,
is presumptively the act of the President himself unless the latter
disapproves or reprobates the same (Villena vs. Secretary of Interior, 67
Phil. 451 ). The truth of the certification by the Department Secretary and
the Chief Executive on the results of the referendum, is further
strengthened by the affidavits and certifications of Governor Isidro
Rodriguez of Rizal, Mayor Norberto S. Amoranto of Quezon City and
Councilor Eduardo T. Parades of Quezon City.
The procedure for the ratification of the 1937 amendment on woman
suffrage, the 1939 amendment to the ordinance appended to the 1935
Constitution, the 1940 amendments establishing the bicameral Congress,
creating the Commission on Elections and providing for two consecutive
terms for the President, and the 1947 parity amendment, cannot be
invoked; because those amendments were proposed by the National
Assembly as expressly authorized by Article V of the 1935 Constitution
respecting woman suffrage and as a constituent assembly in all the other
amendments aforementioned and therefore as such, Congress had also the
authority to prescribe the procedure for the submission of the proposed
amendments to the 1935 Constitution.
In the cases at bar, the 1973 Constitution was proposed by an independent
Constitutional Convention, which as heretofore discussed, has the equal
power to prescribe the modality for the submission of the 1973
Constitution to the people for ratification or delegate the same to the
President of the Republic.
The certification of Governor Isidro Rodriguez of Rizal and Mayor Norberto
Amoranto could be utilized as the basis for the extrapolation of the
Citizens' Assemblies in all the other provinces, cities and municipalities in
all the other provinces, cities and municipalities, and the affirmative votes
in the Citizens' Assemblies resulting from such extrapolation would still
constitute a majority of the total votes cast in favor of the 1973
Constitution.
As claimed by petitioners in L-36165, against the certification of the
Department of Local Government and Community Development that in
Rizal there were 1,126,000 Yes votes and 100,310 No votes, the
certification of Governor Isidro Rodriguez of Rizal, shows only 614,157 Yes
votes against 292,530 No votes. In Cavite province, there were 249,882 Yes
votes against 12,269 No votes as disclosed in Annex 1-A of respondents'
Compliance (the certification by the Department of Local Government and
Community Development), while the alleged certification of Governor Lino
Bocalan of Cavite shows only 126,163 Yes votes and 5,577 No votes. If such
a ratio is extended by way of extrapolation to the other provinces, cities
and towns of the country, the result would still be an overwhelming vote in
favor of the 1973 Constitution.
The alleged certification by Governor Lino Bocalan of Cavite, is not true;
because in his duly acknowledged certification dated March 16, 1973, he
states that since the declaration of martial law and up to the present time,
he has been under house arrest in his residence in Urdaneta Village,
Makati, Rizal; that he never participated in the conduct of the Citizens'
Assemblies on January 10 15, 1973 in the province of Cavite; that the
acting chairman and coordinator of the Citizens' Assemblies at that time
was Vice-Governor Dominador Camerino; and that he was shown a letter
for his signature during the conduct of the Citizens' Assemblies, which he
did not sign but which he referred to Vice-Governor Camerino (Annex 1-
Rejoinder of the Sol. Gen. dated March 20, 1973).
Mayor Pablo Cuneta likewise executed an affidavit dated March 16, 1973
stating that on January 15, 1973, he caused the preparation of a letter
addressed to Secretary Jose Roño of the Department of Local Government
and Community Development showing the results of the referendum in
Pasay City; that on the same day, there were still in any Citizens'
Assemblies holding referendum in Pasay City, for which reason he did not
send the aforesaid letter pending submittal of the other results from the
said Citizens' Assemblies; and that in the afternoon of January 15, 1973, he
indorsed the complete certificate of results on the referendum in Pasay
City to the Office of the President (Annex 5-Rejoinder of Sol. Gen. dated
March 20, 1973).
Pablo F. Samonte, Assistant City Treasurer and Officer in Charge of Pasay
City also issued an affidavit dated March 15, 1973 stating that a certain
Atty. Delia Sutton of the Salonga Law Office asked him for the results of the
referendum; that he informed her that he had in his possession unsigned
copies of such results which may not be considered official as they had
then no knowledge whether the original thereof had been signed by the
mayor; and that in spite of his advice that said unsigned copies were not
official, she requested him if she could give her the unofficial copies
thereof, which he gave in good faith (Annex C-Rejoinder to the Sol. Gen.).
There were 118,010 Yes votes as against 5,588 No votes in the Citizens'
Assemblies of Quezon city (Annex V to Petitioners' Notes in L-36165). The
fact that a certain Mrs. Remedio Gutierrez, wife of alleged barrio treasurer
Faustino Gutierrez, of barrio South Triangle, Quezon City, states that "as far
as we know, there has been no Citizens' Assembly meeting in our Area,
particularly in January of this year," does not necessarily mean that there
was no such meeting in said barrio; for she may not have been notified
thereof and as a result she was not able to attend said meeting. Much less
can it be a basis for the claim that there was no meeting at all in the other
barrios of Quezon City. The barrio captain or the secretary of the barrio
assembly could have been a credible witness.
Councilor Eduardo T. Paredes, chairman of the Secretariat of Quezon City
Ratification and Coordinating Council, certified on March 12, 1973 that as
Page 61 of 158
such chairman he was in charge of the compilation and tabulation of the
results of the referendum among the Citizens' Assemblies in Quezon City
based on the results submitted to the Secretariat by the different Citizens'
Assemblies; but many results of the referendum were submitted direct to
the national agencies having to do with such activity and all of which he has
no knowledge, participation and control (Annex 4 Rejoinder of the Sol.
Gen.).
Governor Isidro Rodriguez of Rizal issued a certification dated March 16,
1973 that he prepared a letter to the President dated January 15, 1973
informing him of the results of the referendum in Rizal, in compliance with
the instruction of the National Secretariat to submit such letter 2 or 3 days
from January 10 to show the trend of voting in the Citizens' Assemblies;
that the figures 614,157 and 292,530 mentioned in said letter were based
on the certificates of results in his possession as of January 14, 1973, which
results were made the basis of the computation of the percentage of
voting trend in the province; that his letter was never intended to show the
final or complete result in the referendum in the province as said
referendum was then still going on from January 14-17, 1973, for which
reason the said letter merely stated that it was only a "summary
result"; and that after January 15, 1973, he sent to the National Secretariat
all the certificates of results in 26 municipalities of Rizal for final tabulation
(Annex 3-Rejoinder of the Sol. Gen.; emphasis supplied).
Lydia M. Encarnacion, acting chief of the Records Section, Department of
Local Government and Community Development, issued a certificate dated
March 16, 1973 that she was shown xerox copies of unsigned letters
allegedly coming from Governor Lino Bocalan dated January 15, 1973 and
marked "Rejoinder Annex Cavite" addressed to the President of the
Philippines through the Secretary of the Department of Local Government
and Community Development and another unsigned letter reportedly from
Mayor Pablo Cuneta dated January 15, 1973 and marked "Rejoinder Annex
Pasay City" addressed to the Secretary of the Department of Local
Government and Community Development; that both xerox copies of the
unsigned letters contain figures showing the results of the referendum of
the Citizens' Assemblies in those areas; and that the said letters were not
received by her office and that her records do not show any such
documents received by her office (Annex 2-Rejoinder of the Sol. Gen.).
Thus it would seem that petitioners in L-36165 have attempted to deceive
this Court by representing said unsigned letters and/or certificates as duly
signed and/or containing the complete returns of the voting in the Citizens'
Assemblies.
The observation We made with respect to the discrepancy between the
number of Yes votes and No votes contained in the summary report of
Governor Rodriguez of Rizal as well as those contained in the alleged
report of Governor Lino Bocalan of Cavite who repudiated the same as not

having been signed by him for he was then under house arrest, on the one
hand, and the number of votes certified by the Department of Local
Government and Community Development, on the other, to the effect that
even assuming the correctness of the figures insisted on by counsel for
petitioners in L-36165, if they were extrapolated and applied to the other
provinces and cities of the country, the Yes votes would still be
overwhelmingly greater than the No votes, applies equally to the alleged
discrepancy between the figures contained in the certification of the
Secretary of the Department of Local Government and Community
Development and the figures furnished to counsel for petitioners in L-
36165 concerning the referendum in Camarines Sur, Bataan and Negros
Occidental.
The fact that the referendum in the municipality of Pasacao, Camarines
Sur, shows that there were more votes in favor of the plebiscite to be held
later than those against, only serve to emphasize that there was freedom
of voting among the members of the Citizens' Assemblies all over the
country during the referendum from January 10 to 15, 1973 (Annex-6
Camarines Sur to Rejoinder of Petitioners in L-36165). If there was no such
freedom of choice, those who wanted a plebiscite would not outnumber
those against holding such plebiscite.
The letter of Governor Felix O. Alfelor, Sr. dated January 1973 confirms the
"strong manifestation of approval of the new Constitution by almost 97%
by the members of the Citizens' Assemblies in Camarines Sur" (Annex-
Camarines Sur to Rejoinder of Petitioners in L-36165).
The report of Governor Efren B. Pascual of Bataan shows that the members
of the Citizens' Assemblies voted overwhelmingly in favor of the new
Constitution despite the fact that the second set of questions including the
question "Do you approve of the new Constitution?" was received only on
January 10. Provincial Governor Pascual stated that "orderly conduct and
favorable results of the referendum" were due not only to the coordinated
efforts and cooperation of all teachers and government employees in the
area but also to the enthusiastic participation by the people, showing
"their preference and readiness to accept this new method of government
to people consultation in shaping up government policies." (Annex-Bataan
to Rejoinder of Petitioners in L-36165).
As heretofore stated, it is not necessary that voters ratifying the new
Constitution are registered in the book of voters; it is enough that they are
electors voting on the new Constitution (Bott vs. Wurts, 40 A 740 [1898];
43 A 744, 881 [1899]; 45 LRA 251). The fact that the number of actual
voters in the referendum in certain localities may exceed the number of
voters actually registered for the 1971 elections, can only mean that the
excess represents the qualified voters who are not yet registered including
those who are at least 15 years of age and the illiterates. Although ex-
convicts may have voted also in the referendum, some of them might have
been granted absolute pardon or were sentenced to less than one year
imprisonment to qualify them to vote (Sec. 201, 1971 Rev. Election Code).
At any rate, the ex-convicts constitute a negligible number, discounting
which would not tilt the scale in favor of the negative votes.
Similarly, the fact that Mayor Marcial F. Samson of Caloocan City, who
belongs to the Liberal Party, stated in his letter dated March 13, 1973 that
he does not "feel authorized by the proper authorities to confirm or deny
the data" concerning the number of participants, the Yes votes and No
votes in the referendum on the new Constitution among the members of
the Citizens' Assemblies in Caloocan City, does not necessarily give rise to
the inference that Mayor Samson of Caloocan City is being intimidated,
having been recently released from detention; because in the same letter
of Mayor Samson, he suggested to counsel for petitioners in L-36165 that
he can secure "the true and legitimate results of the referendum" from the
Office of the President (Annex Caloocan-B to Rejoinder of Petitioners in L-
36165). Why did not learned and eminent counsel heed such suggestion?
Counsel for petitioners in L-36165, to sustain their position, relies heavily
on the computation of the estimated turnover in the Citizens' Assemblies
referendum on January 10 to 15, 1973 by a certain Professor Benjamin R.
Salonga, of the Mapua Institute of Technology, ostensibly a close relative of
former Senator Jovito R. Salonga, eminent counsel for petitioners in L-
36165 (Annex M-as amended, to Consolidated Rejoinder of petitioners in L-
36165 to the Notes of Arguments and Memorandum of respondents).
Professor Salonga is not a qualified statistician, which all the more impairs
his credibility. Director Tito A. Mijares of the Bureau of Census and
Statistics, in his letter dated March 16, 1973 address to the Secretary of the
Department of Local Government and Community Development, refutes
the said computation of Professor Benjamin R. Salonga, thus:
1) I do not quite understand why (Problem 1) all
qualified registered voters and the 15-20-year-old
youths (1972) will have to be estimated in order to give
a 101.9% estimate of the percentage participation of
the "15-20 year old plus total number of qualified
voters" which does not deem to answer the problem.
This computation apparently fails to account for some
5.6 million persons "21 years old and over" who were
not registered voters (COMELEC), but who might be
qualified to participate at the Citizen's Assembly.
2) The official population projection of this office
(medium assumption) for "15 year olds and over" as of
January 1, 1973 is 22.506 million. If total number of
participants at the Citizens' Assembly Referendum held
on January 10-15, 1973 was 16.702 million,
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participation rate will therefore be the ratio of the
latter figure to the former which gives 74.2%.
3) 1 cannot also understand c-2 "Solution to Problem
11." The "difference or implied number of 15-20 year
olds" of 5,039,906 would represent really not only all
15-year olds and over who participated at the Citizens'
Assembly but might not have been registered voters at
the time, assuming that all the 11,661,909 registered
voted at Citizens' Assembly. Hence, the "estimate
percentage participation of 15-20 years olds" of 105.6%
does not seem to provide any meaningful information.
To obtain the participation rate of "15-20 years old"
one must divide the number in this age group, which
was estimated to be 4.721 million as of January 1, 1973
by the population of "15 years old and over" for the
same period which was estimated to be 22.506 million,
giving 21.0%.
In Problem III, it should be observed that registered
voters also include names of voters who are already
dead. It cannot therefore be assumed that all of them
participated at the Citizens' Assembly. It can therefore
be inferred that "a total number of persons 15 and over
unqualified/disqualified to vote" will be more than
10,548,197 and hence the "difference or implied
number of registered voters that participated" will be
less than 6,153,618.
I have reservations on whether an "appropriate
number of qualified voters that supposedly voted"
could be meaningfully estimated.
5) The last remark will therefore make the ratio (a)
[Solution to Problem] more than 1.71 and that for (b),
accordingly, will also be less than 36.8%." (Annex F
Rejoinder).
From the foregoing analysis of the Director of Census and Statistics as of
January 21, 1973, the official population projection for 15-year olds and
over is 22,506,000. If 16,702,000 voted in the referendum, the
participation ratio would be 74.2% of 22,506,000.
If the registered electors as of the election of November 8, 1971 numbered
11,661,909, the difference between 16,702,000 who participated in the
referendum and the registered electors of 11,661,909 for the November 8,

1971 elections, is 5,040,091, which may include not only the 15-year olds
and above but below 21 but also the qualified electors who were not
registered before the November 8, 1971 elections as well as illiterates who
are 15 years old and above but below 21.
Moreover, in the last Presidential election in November, 1969, We found
that the incumbent President obtained over 5,000,000 votes as against
about 3,000,000 votes for his rival LP Senator Sergio Osmeña, Jr., garnering
a majority of from about 896,498 to 1,436,118 (Osmeña, Jr. vs. Marcos,
Presidential Election Contest No. 3, Jan. 8, 1973).
The petitioners in all the cases at bar cannot state with justification that
those who voted for the incumbent President in 1969 did not vote in favor
of the 1973 Constitution during the referendum from January 10 to 15,
1973. It should also be stressed that many of the partisans of the President
in the 1969 Presidential elections, have several members in their families
and relatives who are qualified to participate in the referendum because
they are 15 years or above including illiterates, which fact should
necessarily augment the number of votes who voted for the 1973
Constitution.
(6) It is also urged that martial law being the rule of force, is necessarily
inconsistent with freedom of choice, because the people fear to disagree
with the President and Commander-in-Chief of the Armed Forces of the
Philippines and therefore cannot voice views opposite to or critical of the
position of the President on the 1973 Constitution and on the mode of its
ratification.
It is also claimed or urged that there can be no free choice during martial
law which inevitably generates fear in the individual. Even without martial
law, the penal, civil or administrative sanction provided for the violation of
ordinarily engenders fear in the individual which persuades the individual
to comply with or obey the law. But before martial law was proclaimed,
many individuals fear such sanctions of the law because of lack of effective
equal enforcement or implementation thereof — in brief,
compartmentalized justice and extraneous pressures and influences
frustrated the firm and just enforcement of the laws. The fear that is
generated by martial law is merely the fear of immediate execution and
swift enforcement of the law and therefore immediate infliction of the
punishment or sanction prescribed by the law whenever it is transgressed
during the period of martial law. This is not the fear that affects the voters'
freedom of choice or freedom to vote for or against the 1973 Constitution.
Those who cringe in fear are the criminals or the law violators. Surely,
petitioners do not come under such category.
(7) Petitioners likewise claim that open voting by viva voce or raising of
hands violates the secrecy of the ballot as by the election laws. But the
1935 Constitution does not require secret voting. We search in vain for
such guarantee or prescription in said organic law. The Commission on
Elections under the 1940 Amendment, embodied as Article X is merely
mandated to insure "free, orderly and honest election." Congress, under its
plenary law-making authority, could have validly prescribed in the election
law open voting in the election of public officers, without trenching upon
the Constitution. Any objection to such a statute concerns its wisdom or
propriety, not its legality or constitutionality. Secret balloting was
demanded by partisan strife in elections for elective officials. Partisanship
based on party or personal loyalties does not generally obtain in a
plebiscite on proposed constitutional amendments or on a new
Constitution. We have seen even before and during martial law that voting
in meetings of government agencies or private organizations is usually
done openly. This is specially true in sessions of Congress, provincial
boards, city councils, municipal boards and barrio councils when voting on
national or local issues, not on personalities.
Then again, open voting was not a universal phenomenon in the Citizens'
Assemblies. It might have been true in certain areas, but that does not
necessarily mean that it was done throughout the country.
The recent example of an open voting is the last election on March 3, 1973
of the National Press Club officers who were elected by acclamation
presided over by its former president, petitioner Eduardo Monteclaro in L-
36236 (see Bulletin Today, p. 8, March 3, 1973 issue). There can be no
more hardboiled group of persons than newspapermen, who cannot say
that voting among them by acclamation was characterized by fear among
the members of the National Press Club.
Moreover, petitioners would not be willing to affirm that all the members
of the citizenry of this country are against the new Constitution. They will
not deny that there are those who favor the same, even among the
400,000 teachers among whom officers of the Department of Education
campaigned for the ratification of the new Constitution.
Not one of the petitioners can say that the common man — farmer,
laborer, fisherman, lowly employee, jeepney driver, taxi driver, bus driver,
pedestrian, salesman, or salesgirl — does not want the new Constitution,
or the reforms provided for therein.
(8) Petitioners likewise claim that there was no sufficient publicity given to
the new Constitution. This is quite inaccurate; because even before the
election in November, 1970 of delegates to the Constitutional Convention,
the proposed reforms were already discussed in various forums and
through the press as well as other media of information. Then after the
Constitutional Convention convened in June, 1971, specific reforms
advanced by the delegates were discussed both in committee hearings as
well as in the tri-media — the press, radio and television. Printed materials
on the proposed reforms were circulated by their proponents. From June,
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1971 to November 29, 1972, reforms were openly discussed and debated
except for a few days after the proclamation of martial law on September
21, 1972. From the time the Constitutional Convention reconvened in
October, 1972 until January 7, 1973, the provisions of the new Constitution
were debated and discussed in forums sponsored by private organizations
universities and debated over the radio and on television. The Philippines is
a literate country, second only to Japan in the Far East, and more literate
perhaps than many of mid-western and southern states of the American
Union and Spain. Many residents in about 1,500 towns and 33,000 barrios
of the country have radios. Even the illiterates listened to radio broadcasts
on and discussed the provisions of the 1973 Constitution.
As reported by the eminent and widely read columnist, Teodoro Valencia in
his column in Bulletin Today, March 4, 1973 issue, "Otto Lang, Hollywood
producer director (Tora, Tora, Tora) went around the country doing a 30-
minute documentary on the Philippines for American television stated that
what impressed him most in his travel throughout the country was the
general acceptance of the New Society by the people which he saw in his 6-
week travel from Aparri to Jolo."
The report of Frank Valeo (Bulletin Today, March 3 and 4, 1973 and Daily
Express, March 3, and Sunday Express, March 4), Secretary of the United
States Senate, who conducted a personal survey of the country as delegate
of Senator Mike Mansfield, Chairman, Committee on US-Philippine
relations, states:
Martial law has paved the way for a re-ordering of the
basic social structure of the Philippines. President
Marcos has been prompt and sure-footed in using the
power of presidential decree under martial law for this
purpose. He has zeroed in on areas which have been
widely recognized as prime sources of the nation's
difficulties — land tenancy, official corruption, tax
evasion and abuse of oligarchic economic power.
Clearly, he knows the targets. What is not yet certain is
how accurate have been his shots. Nevertheless, there
is marked public support for his leadership and tangible
alternatives have not been forthcoming. That would
suggest that he may not be striking too far from the
mark.
The United States business community in Manila seems
to have been re-assured by recent developments ... .
(Emphasis supplied.)
Petitioners cannot safely assume that all the peaceful citizens of the
country, who constitute the majority of the population, do not like the
reforms stipulated in the new Constitution, as well as the decrees, orders

and circulars issued to implement the same. It should be recalled, as
hereinbefore stated, that all these reforms were the subject of discussion
both in the committee hearings and on the floor of the Constitutional
Convention, as well as in public forums sponsored by concerned citizens or
civic organizations at which Con-Con delegates as well as other
knowledgeable personages expounded their views thereon and in all the
media of information before the proclamation of martial law on September
21, 1972. This is the reason why the Constitutional Convention, after
spending close to P30 million during the period from June 1, 1971 to
November 29, 1972, found it expedient to accelerate their proceedings in
November, 1972 because all views that could possibly be said on the
proposed provisions of the 1973 Constitution were already expressed and
circulated. The 1973 Constitution may contain some unwise provisions. But
this objection to such unwise or vague provisions, as heretofore stated,
refers to the wisdom of the aforesaid provisions, which issue is not for this
Court to decide; otherwise We will be substituting Our judgment for the
judgment of the Constitutional Convention and in effect acting as a
constituent assembly.
VI
PRESIDENT AS COMMANDER IN CHIEF EXERCISES
LEGISLATIVE POWERS DURING MARTIAL LAW.
The position of the respondent public officers that undermartial law, the
President as Commander-in-Chief is vested with legislative powers, is
sustained by the ruling in the 1949 case of Kuroda vs. Jalandoni, et al. (83
Phil. 171, 177-178) which reiterates the 1945 case of Yamashita vs.
Styer (75 Phil. 563, 571-72). The trial of General Kuroda was after the
surrender of Japan on October 2, 1945 (23 Encyc. Brit. 1969 ed., p. 799)
and hence no more martial law in the Philippines.
... Consequently, in the promulgation and enforcement
of Executive Order No. 68, the President of the
Philippines has acted in conformity with the generally
accepted principles and policies of international law
which are part of our Constitution.
The promulgation of said executive order is an exercise
by the President of his powers as Commander in Chief
of all our armed forces, as upheld by this Court in the
case of Yamashita vs. Styver (L-129, 42 Off. Gaz., 664)
when we said —
"War is not ended simply because
hostilities have ceased. After
cessation of armed hostilities,
incidents of war may remain
pending which should be disposed
of as in time of war. "An important
incident to a conduct of war is the
adoption measures by the military
command not only to repel and
defeat the enemies but to seize and
subject to disciplinary measures
those enemies who in their attempt
to thwart or impede our military
effort have violated the law of war."
(Ex parte Quirin, 317 U.S., 1; 63 Sup.
Ct., 2.) Indeed, the power to create
a military commission for the trial
and punishment of war criminals is
an aspect of waging war. And, in
the language of a writer, a military
commission "has jurisdiction so
long as the technical state of war
continues. This includes the period
of an armistice, or military
occupation, up to the effective date
of treaty of peace, and may extend
beyond, by treaty agreement."
(Cowles, Trial of War Criminals by
Military Tribunals, American Bar
Association Journal, June, 1944).
Consequently, the President as Commander-in-Chief is
fully empowered to consummate this unfinished aspect
of war, namely the trial and punishment of war
criminals, through the issuance and enforcement of
Executive Order No. 68. (83 Phil. 177-178; emphasis
supplied).
Chief Justice Stone of the United States Supreme Court likewise appears to
subscribe to this view, when, in his concurring opinion in Duncan vs.
Kahanamoku (327 U.S. 304 [1946]), he defined martial law as "the exercise
of the power which resides in the executive branch of the government to
preserve order and insure the public safety in times of emergency, when
other branches of the government are unable to function, or their
functioning would itself threaten the public safety." (Emphasis supplied).
There is an implied recognition in the aforesaid definition of martial law
that even in places where the courts can function, such operation of the
courts may be affected by martial law should their "functioning ... threaten
the public safety." It is possible that the courts, in asserting their authority
to pass upon questions which may adversely affect the conduct of the
punitive campaign against rebels, secessionists, dissidents as well as
Page 64 of 158
subversives, martial law may restrict such judicial function until the danger
to the security of the state and of the people shall have been decimated.
The foregoing view appears to be shared by Rossiter when he stated:
Finally, this strong government, which in some
instances might become an outright dictatorship, can
have no other purposes than the preservation of the
independence of the state, the maintenance of the
existing constitutional order, and the defense of the
political and social liberties of the people. It is
important to recognize the true and limited ends of any
practical application of the principle of constitutional
dictatorship. Perhaps the matter may be most clearly
stated in this way: the government of a free state is
proceeding on its way and meeting the usual problems
of peace and normal times within the limiting
framework of its established constitutional order. The
functions of government are parceled out among a
number of mutually independent offices and
institutions; the power to exercise those functions is
circumscribed by well-established laws, customs, and
constitutional prescriptions; and the people for whom
this government was instituted are in possession of a
lengthy catalogue of economic, political, and social
rights which their leaders recognize as inherent and
inalienable. A severe crisis arises — the country is
invaded by a hostile power, or a dissident segment of
the citizenry revolts, or the impact of a world-wide
depression threatens to bring the nation's economy in
ruins. The government meets the crisis by assuming
more powers and respecting fewer rights. The result is a
regime which can act arbitrarily and even dictatorially
in the swift adaption of measures designed to save the
state and its people from the destructive effects of the
particular crisis. And the narrow duty to be pursued by
this strong government, this constitutional
dictatorship? Simply this and nothing more: to end the
crisis and restore normal times. The government
assumes no power and abridges no right unless plainly
indispensable to that end; it extends no further in time
than the attainment of that end; and it makes no
alteration in the political, social and economic structure
of the nation which cannot be eradicated with the
restoration of normal times. In short, the aim of
constitutional dictatorship is the complete restoration
of the status quo ante bellum. This historical fact does
not comport with philosophical theory, that there never

has been a perfect constitutional dictatorship, is an
assertion that can be made without fear of
contradiction. But this is true of all institutions of
government, and the principle of constitutional
dictatorship remains eternally valid no matter how
often and seriously it may have been violated in
practice. (Constitutional Dictatorship, 1948 ed., by
Clinton L. Rossiter, p. 7; emphasis supplied.)
Finally, Rossiter expressly recognizes that during martial law, the Chief
Executive exercises legislative power, whether of temporary or permanent
character, thus:
The measures adopted in the prosecution of a
constitutional dictatorship should never be permanent
in character or effect. Emergency powers are strictly
conditioned by their purpose and this purpose is the
restoration of normal conditions. The actions directed
to this end should therefore be provisional. For
example, measures of a legislative nature which work a
lasting change in the structure of the state or constitute
permanent derogations from existing law should not be
adopted under an emergency enabling act, at least not
without the positively registered approval of the
legislature. Permanent laws, whether adopted in
regular or irregular times, are for parliaments to enact.
By this same token, the decisions and sentences of
extraordinary courts should be reviewed by the regular
courts after the termination of the crisis.
But what if a radical act of permanent character, one
working lasting changes in the political and social
fabric, is indispensable to the successful prosecution of
the particular constitutional dictatorship? The only
answer can be: it must be resolutely taken and openly
acknowledged. President Lincoln found it necessary to
proceed to the revolutionary step of emancipation in
aid of his conservative purpose of preserving the Union;
as a constitutional dictator he had a moral right to take
this radical action. Nevertheless, it is imperative that
any action with such lasting effects should eventually
receive the positive approval of the people or of their
representatives in the legislature. (P. 303, emphasis
supplied).
From the foregoing citations, under martial law occasioned by severe crisis
generated by revolution, insurrection or economic depression or
dislocation, the government exercises more powers and respects fewer
rights in order "to end the crisis and restore normal times." The
government can assume additional powers indispensable to the
attainment of that end — the complete restoration of peace. In our
particular case, eradication of the causes that incited rebellion and
subversion as secession, is the sine qua non to the complete restoration of
normalcy. Exercise of legislative power by the President as Commander in
Chief, upon his proclamation of martial law, is justified because, as he
professes, it is directed towards the institution of radical reforms essential
to the elimination of the causes of rebellious, insurgent or subversive
conspiracies and the consequent dismantling of the rebellious, insurgent or
subversive apparatus.
Hence, the issuance of Presidential Decree Nos. 86 and 86-A as well as
Proclamation No. 1102 is indispensable to the effectuation of the reforms
within the shortest possible time to hasten the restoration of normalcy.
"Must the government be too strong for the liberties of the people; or
must it be too weak to maintain its existence?" That was the dilemma that
vexed President Lincoln during the American Civil War, when without
express authority in the Constitution and the laws of the United States, he
suspended one basic human freedom — the privilege of the writ of habeas
corpus — in order to preserve with permanence the American Union, the
Federal Constitution of the United States and all the civil liberties of the
American people. This is the same dilemma that presently confronts the
Chief Executive of the Republic of the Philippines, who, more than the
Courts and Congress, must, by express constitutional mandate, secure the
safety of our Republic and the rights as well as lives of the people against
open rebellion, insidious subversion secession. The Chief Executive
announced repeatedly that in choosing to proclaim martial law, the power
expressly vested in him by the 1935 Constitution (Sec. 10[2], Art. VII, 1935
Constitution) to insure our national and individual survival in peace and
freedom, he is in effect waging a peaceful, democratic revolution from the
center against the violent revolution and subversion being mounted by the
economic oligarchs of the extreme right, who resist reforms to maintain
their economic hegemony, and the communist rebels a Maoist oriented
secessionists of the extreme left who demand swift institution of reforms.
In the exercise of his constitutional and statutory powers, to save the state
and to protect the citizenry against actual and threatened assaults from
insurgents, secessionists and subversives, doctrinaire concepts and
principles, no matter how revered they may be by jurisprudence and time,
should not be regarded as peremptory commands; otherwise the dead
hand of the past will regulate and control the security and happiness of the
living present. A contrary view would be to deny the self-evident
proposition that constitutions and laws are mere instruments for the well-
being, peace, security and prosperity of the country and its citizenry. The
law as a means of social control is not static but dynamic. Paraphrasing Mr.
Justice Frankfurter, the Constitution is neither a printed finality nor the
imprisonment of the past, but the enfolding of the future. In the vein of
Page 65 of 158
Mr. Justice Holmes, the meaning of the words of the Constitution is not to
be determined by merely opening a dictionary. Its terms must be
construed in the context of the realities in the life of a nation it is intended
to serve. Because experience may teach one generation to doubt the
validity and efficacy of the concepts embodied in the existing Constitution
and persuade another generation to abandon them entirely, heed should
be paid to the wise counsel of some learned jurists that in the resolution of
constitutional questions — like those posed before Us — the blending of
idealism and practical wisdom or progressive legal realism should be
applied (see Alexander M. Bickel, the Supreme Court and the Idea of
Progress, 1970 ed., pp. 19-21). To Justice Frankfurter, law is "a vital agency
for human betterment" and constitutional law "is applied politics using the
word in its noble sense." (Frankfurter, Law and Politics, 1939 ed., pp. 3 & 6;
emphasis supplied). Justice Brandeis gave utterance to the truth that "Our
Constitution is not a straight jacket. It is a living organism. As such, it is
capable of growth — or expansion and adaptation to new conditions.
Growth implies changes, political, economic and social." (Brandeis Papers,
Harvard Law School; emphasis supplied). Harvard Professor Thomas Reed
Powell emphasizes "practical wisdom," for "the logic of constitutional law is
the common sense of the Supreme Court." (Powell, the Validity of State
Legislation, under the Webb-Kenyon Law, 2 Southern Law Quarterly, pp.
112, 138-139, cited in Bickel's Opus, supra; emphasis supplied).
The eternal paradox in this finite world of mortal and fallible men is that
nothing is permanent except change. Living organisms as well as man-
made institutions are not immutable. Civilized men organize themselves
into a State only for the purpose of serving their supreme interest — their
welfare. To achieve such end, they created an agency known as the
government. From the savage era thru ancient times, the Middle Ages, the
Dark Ages and the Renaissance to this era of sophisticated electronics and
nuclear weaponry, states and governments have mutated in their search
for the magic instrument for their well-being. It was trial and error then as
it is still now. Political philosophies and constitutional concepts, forms and
kinds of government, had been adopted, overturned, discarded, re-
adopted or modified to suit the needs of a given society at a particular
given epoch. This is true of constitutions and laws because they are not
"the infallible instruments of a manifest destiny." No matter how we want
the law to be stable, it cannot stand still. As Mr. Justice Holmes aptly
observed, every "constitution is an experiment as all life is an experiment,"
(Abrahms vs. U.S., 250 US 616, 631) for "the life of the law is not logic, but
experience." In the pontifical tones of Mr. Justice Benjamin Nathan
Cardozo, "so long as society is inconstant, there can be no constancy in
law," and "there will be change whether we will it or not." As Justice Jose P.
Laurel was wont to say, "We cannot, Canute-like, command the waves of
progress to halt."
Thus, political scientists and jurists no longer exalt with vehemence a
"government that governs least." Adherents there are to the poetic dictum

of Alexander Pope: "For forms of government let fools contest; whatever is
best administered is best." (Poems of Pope, 1931 Cambridge ed., p. 750). In
between, the shades vary from direct democracy, representative
democracy, welfare states, socialist democracy, mitigated socialism, to
outright communism which degenerated in some countries into
totalitarianism or authoritarianism.
Hence, even the scholar, who advances academic opinions unrelated to
factual situations in the seclusion of his ivory tower, must perforce submit
to the inexorable law of change in his views, concepts, methods and
techniques when brought into the actual arena of conflict as a public
functionary — face to face with the practical problems of state,
government and public administration. And so it is that some learned
jurists, in the resolution of constitutional issues that immediately affect the
lives, liberties and fortunes of the citizens and the nation, recommend the
blending of idealism with practical wisdom which legal thinkers prefer to
identify as progressive legal realism. The national leader, who wields the
powers of government, must and has to innovate if he must govern
effectively to serve the supreme interests of the people. This is especially
true in times of great crises where the need for a leader with vision,
imagination, capacity for decision and courageous action is greater, to
preserve the unity of people, to promote their well-being, and to insure the
safety and stability of the Republic. When the methods of rebellion and
subversion have become covert, subtle and insidious, there should be a
recognition of the corresponding authority on the part of the Commander-
in-Chief of the Armed Forces to utilize all the available techniques to
suppress the peril to the security of the government and the State.
Over a century and a half ago, Thomas Jefferson, one of the founding
fathers of the American Constitution and former President of the United
States, who personifies the progressive liberal, spoke the truth when he
said that some men "ascribe men of the preceding age a wisdom more
than human, and suppose what they did to be beyond amendment. ... But I
know also, that laws and institutions must go hand in hand with the
progress of the human mind. As that becomes more developed, more
enlightened, as new discoveries are made, new truths disclosed and
manners and opinions change, with the change of circumstances,
institutions must also advance, and keep pace with the times." (Vol. 12,
Encyclopedia Britanica, 1969 ed., p. 989).
The wisdom of the decision of the Chief Executive can only be judged in the
perspective of history. It cannot be adequately and fairly appraised within
the present ambience, charged as it is with so much tension and emotion,
if not partisan passion. The analytical, objective historians will write the
final verdict in the same way that they pronounced judgment on President
Abraham Lincoln who suspended the privilege of the writ of habeas
corpuswithout any constitutional or statutory authority therefor and of
President Franklin Delano Roosevelt who approved the proclamation of
martial law in 1941 by the governor of Hawaii throughout the Hawaiian
territory. President Lincoln not only emancipated the Negro slaves in
America, but also saved the Federal Republic of the United States from
disintegration by his suspension of the privilege of the writ of habeas
corpus, which power the American Constitution and Congress did not then
expressly vest in him. No one can deny that the successful defense and
preservation of the territorial integrity of the United States was due in part,
if not to a great extent, to the proclamation of martial law over the
territory of Hawaii — main bastion of the outer periphery or the outpost of
the American defense perimeter in the Pacific — which protected the
United States mainland not only from actual invasion but also from aerial
or naval bombardment by the enemy. Parenthetically, the impartial
observer cannot accurately conclude that the American Supreme Court
acted with courage in its decision in the cases of Ex parte Milligan and
Duncan vs. Kahanamoku (filed on May 10, 1865 argued on March 5 to 13,
1866, decided on April 3, 1866, and opinion delivered on December 17,
1866) after the lifting of the proclamation suspending the privilege of the
writ of habeas corpus, long after the Civil War and the Second World ended
respectively on April 9 or 26, 18-65 (Vol. 1, Encyclopedia Britannica, 1969
ed., pp. 730, 742) and on September 2, 1945 (Vol. 23, Encyclopedia
Britannica, 1969 ed., p. 799). Was the delay on the part of the American
Supreme Court in deciding these cases against the position of the United
States President — in suspending the privilege of the writ of habeas
corpus in one case and approving the proclamation of martial law in the
other — deliberate as an act of judicial statesmanship and recognition on
their part that an adverse court ruling during the period of such a grave
crisis might jeopardize the survival of the Federal Republic of the United
States in its life-and-death struggle against an organized and well armed
rebellion within its own borders and against a formidable enemy from
without its territorial confines during the last global armageddon?
VIII
DOCTRINE OF SEPARATION OF POWERS PRECLUDES
MANDAMUS AGAINST SENATORS.
In G.R. No. L-36165, mandamus will not lie to compel respondents Gil
Puyat and Jose Roy to convene the Senate of the Philippines even on the
assumption that the 1935 Constitution still subsists; because pursuant to
the doctrine of separation of powers under the 1935 Constitution, the
processes of this Court cannot legally reach a coordinate branch of the
government or its head. This is a problem that is addressed to the Senate
itself for resolution; for it is purely an internal problem of the Senate. If a
majority of the senators can convene, they can elect a new Senate
President and a new Senate President Pro Tempore. But if they have no
quorum, those present can order the arrest of the absent members (Sec.
10[2], Art. VI, 1935 Constitution). If this fails, then there is no remedy
except an appeal to the people. The dictum ubi jus, ubi remedium, is not
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absolute and certainly does not justify the invocation of the power of this
Court to compel action on the part of a co-equal body or its leadership.
This was emphasized with sufficient clarity by this Court in the 1949 case of
Avelino vs. Cuenco (83 Phil. 17, 22,24), with which the distinguished
counsels for the petitioners in L-36164 and L-36165 are familiar. We stress
that the doctrine of separation of powers and the political nature of the
controversy such as this, preclude the interposition of the Judiciary to
nullify an act of a coordinate body or to command performance by the
head of such a co-ordinate body of his functions..
Mystifying is the posture taken by counsels for petitioners in referring to
the political question doctrine — almost in mockery — as a magic formula
which should be disregarded by this Court, forgetting that this magic
formula constitutes an essential skein in the constitutional fabric of our
government, which, together with other basic constitutional precepts,
conserves the unity of our people, strengthens the structure of the
government and assures the continued stability of the country against the
forces of division, if not of anarchy.
Moreover, if they have a quorum, the senators can meet anywhere.
Validity of the acts of the Senate does not depend on the place of session;
for the Constitution does not designate the place of such a meeting.
Section 9 of Article VI imposes upon Congress to convene in regular session
every year on the 4th Monday of January, unless a different date is fixed by
law, or on special session called by the President. As former Senator Arturo
Tolentino, counsel for respondents Puyat and Roy in L-36165, stated, the
duty to convene is addressed to all members of Congress, not merely to its
presiding officers. The fact that the doors of Congress are padlocked, will
not prevent the senators — especially the petitioners in L-36165 — if they
are minded to do so, from meeting elsewhere — at the Sunken Gardens, at
the Luneta Independence Grandstand, in any of the big hotels or theaters,
in their own houses, or at the Araneta Coliseum, which is owned by the
father-in-law of petitioner Gerardo Roxas in L-36165.
However, a session by the Senate alone would be purely an exercise in
futility, for it cannot validly meet without the lower House (Sec. 10[5], Art.
VI, 1935 Constitution). Hence, this petition by five former senators
for mandamus in L-36165 is useless.
And as pointed out by former Senator Arturo Tolentino, counsel for
respondents Puyat and Roy, mandamus will lie only if there is a law
imposing on the respondents the duty to convene the body. The rule
imposing such a duty invoked by petitioners in L-36165 is purely an internal
rule of the Senate; it is not a law because it is not enacted by both Houses
and approved by the President.

The Constitutional provision on the convening of Congress, is addressed to
the individual members of the legislative body (Sec. 9, Art. VI of 1935
Constitution).
IX
TO NULLIFY PROCLAMATION NO. 1102 AND 1973
CONSTITUTION REQUIRES EIGHT OR TEN VOTES OF
SUPREME COURT.
The petitioners in L-36164 and L-36236 specifically pray for a declaration
that the alleged ratification of the 1973 Constitution is null and void and
that the said 1973 Constitution be declared unenforceable and inoperative.
As heretofore stated, Proclamation No. 1102 is an enactment of the
President as Commander-in-Chief during martial law as directly delegated
to him by Section 10(2) of Article VII of the 1935 Constitution.
A declaration that the 1973 Constitution is unenforceable and inoperative
is practically deciding that the same is unconstitutional. The proposed
Constitution is an act of the Constitutional Convention, which is co-equal
and coordinate with as well as independent of either Congress or the Chief
Executive. Hence, its final act, the 1973 Constitution, must have the same
category at the very least as the act of Congress itself.
Consequently, the required vote to nullify Proclamation No. 1102 and the
1973 Constitution should be eight (8) under Section 10 of Article VIII of the
1935 Constitution in relation to Section 9 of the Judiciary Act or Republic
Act No. 296, as amended, or should be ten (10) under Section 2(2) of
Article X of the 1973 Constitution. Should the required vote of eight (8) or
ten (10), as the case may be, for the declaration of invalidity or
unconstitutionality be not achieved, the 1973 Constitution must be
deemed to be valid, in force and operative.
X and rebels by effecting the desired reforms in order to eradicate the evils
ARTICLE OF FAITH
WE yield to no man as devotees of human rights and civil liberties. Like
Thomas Jefferson, We swear "eternal hostility towards any form of tyranny
over the mind of man" as well as towards bigotry and intolerance, which
are anathema to a free spirit. But human rights and civil liberties under a
democratic or republican state are never absolute and never immune to
restrictions essential to the common weal. A civilized society cannot long
endure without peace and order, the maintenance of which is the primary
function of the government. Neither can civilized society survive without
the natural right to defend itself against all dangers that may destroy its
life, whether in the form of invasion from without or rebellion and
subversion from within. This is the first law of nature and ranks second to
none in the hierarchy of all values, whether human or governmental. Every
citizen, who prides himself in being a member or a civilized society under
an established government, impliedly submits to certain constraints on his
freedom for the general welfare and the preservation of the State itself,
even as he reserves to himself certain rights which constitute limitations on
the powers of government. But when there is an inevitable clash between
an exertion of governmental authority and the assertion of individual
freedom, the exercise of which freedom imperils the State and the civilized
society to which the individual belongs, there can be no alternative but to
submit to the superior right of the government to defend and preserve the
State. In the language of Mr. Justice Holmes — often invoked by herein
petitioners — "when it comes to a decision involving its (state life, the
ordinary rights of individuals must yield to what he (the President) deems
the necessities of the moment. Public danger warrants the substitution of
executive process for judicial process. (See Keely vs. Sanders, 99 U.S. 441,
446, 25 L ed. 327, 328). This was admitted with regard to killing men in the
actual clash of arms. And we think it is obvious, although it was disputed,
that the same is true of temporary detention to prevent apprehended
harm." (Moyer vs. Peabody, 212 U.S. 77, 85, 53 L ed., 411, 417).
The rhetoric of freedom alone is not enough. It must be the rhetoric of
freedom with order and security for all, that should be the shibboleth; for
freedom cannot be enjoyed in an environment of disorder and anarchy.
The incumbent Chief Executive who was trying to gain the support for his
reform program long before September 21, 1972, realized almost too late
that he was being deceived by his partymates as well as by the opposition,
who promised him cooperation, which promises were either offered as a
bargaining leverage to secure concessions from him or to delay the
institution of the needed reforms. The people have been victimized by such
bargaining and dilly-dallying. To vert a terrifying blood bath and the
breakdown of the Republic, the incumbent President proclaimed martial
law to save the Republic from being overrun by communists, secessionists
that plague our society, which evils have been employed by the
communists, the rebels and secessionists to exhort the citizenry to rise
against the government. By eliminating the evils, the enemies of the
Republic will be decimated. How many of the petitioners and their counsels
have been utilizing the rebels, secessionists and communists for their own
personal or political purposes and how many of them are being used in
turn by the aforesaid enemies of the State for their own purposes?
If the petitioners are sincere in their expression of concern for the greater
mass of the populace, more than for their own selves, they should be
willing to give the incumbent Chief Executive a chance to implement the
desired reforms. The incumbent President assured the nation that he will
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govern within the framework of the Constitution and if at any time, before
normalcy is restored, the people thru their Citizens' Assemblies, cease to
believe in his leadership, he will step down voluntarily from the Presidency.
But if, as apprehended by the petitioners, he abuses and brutalizes the
people, then to the battlements we must go to man the ramparts against
tyranny. This, it is believed, he knows only too well; because he is aware
that he who rides the tiger will eventually end inside the tiger's stomach.
He who toys with revolution will be swallowed by that same revolution.
History is replete with examples of libertarians who turned tyrants and
were burned at stake or beheaded or hanged or guillotined by the very
people whom they at first championed and later deceived. The most
bloody of such mass executions by the wrath of a wronged people, was the
decapitation by guillotine of about 15,000 Frenchmen including the leaders
of the French revolution, like Robespierre, Danton, Desmoulins and Marat.
He is fully cognizant of the lessons of history.
HENCE, THE DISMISSAL OF THESE FIVE CASES IS JUSTIFIED.
ESGUERRA, J., concurring:
These petitions seek to stop and prohibit the respondents Executive
Officers from implementing the Constitution signed on November 30,
1972; in L-36165, to compel respondents Gil Puyat and Jose J. Roy,
President and President Pro-Tempore, respectively, of the Senate under
the 1935 Constitution, to convene the Senate in regular session which
should have started on January 22, 1973; to nullify Proclamation No. 1102
of the President, issued on January 17, 1973, which declared the
ratification of the Constitution on November 30, 1972, by the Filipino
people, through the barangays or Citizens Assemblies established under
Presidential Decree No. 86 issued on December 31, 1972, which were
empowered under Presidential Decree No. 86-A, issued on January 5, 1973,
to act in connection with the ratification of said Constitution.
Grounds for the petitions are as follows:
1. That the Constitutional Convention was not a free forum for the making
of a Constitution after the declaration of Martial Law on September 21,
1972.
2. The Convention was not empowered to incorporate certain provisions in
the 1972 Constitution because they are highly unwise and objectionable
and the people were not sufficiently informed about them.
3. The President had no authority to create and empower the Citizens'
Assemblies to ratify the new Constitution at the referendum conducted in
connection therewith, as said assemblies were merely for consultative
purposes, and

4. The provisions of Article XV of the 1935 Constitution prescribing the
manner of amending the same were not duly observed.
The petitions were not given due course immediately but were referred to
the Solicitor General as counsel for the respondents for comment, with
three members of the Court, including the undersigned, voting to dismiss
them outright. The comments were considered motions to dismiss which
were set for hearing and extensively argued. Thereafter both parties
submitted their notes and memoranda on their oral arguments.
I.
The issues raised for determination, on which the resolution of the Motion
to Dismiss hinges, are as follows:
1. Is the question presented political and, hence, beyond the competence
of this Court to decide, or is it justiciable and fit for judicial determination?
2. Was the new Constitution of November 30, 1972, ratified in accordance
with the amending process prescribed by Article XV of the 1935
Constitution?
3. Has the new Constitution been accepted and acquiesced in by the
Filipino people?
4. Is the new Constitution actually in force and effect?
5. If the answers to questions Nos. 3 and 4 be in the affirmative, are
petitioners entitled to the reliefs prayed for?
II.
The pivotal question in these cases is whether the issue raised is highly
political and, therefore, not justiciable. I maintain that this Court should
abstain from assuming jurisdiction, but, instead, as an act of judicial
statesmanship, should dismiss the petitions. In resolving whether or not
the question presented is political, joint discussion of issues Nos. 1, 3 and 4
is necessary so as to arrive at a logical conclusion. For after the acceptance
of a new Constitution and acquiescence therein by the people by putting it
into practical operation, any question regarding its validity should be
foreclosed and all debates on whether it was duly or lawfully ushered into
existence as the organic law of the state become political and not judicial in
character.
The undisputed facts that led to the issuance of Proclamation No. 1102 and
Presidential Decrees Nos. 86 and 86-A are fully set forth in the majority and
dissenting opinions in the Plebiscite cases decided on January 22, 1973,
and need not be repeated here.
Petitioners seek to set at naught Proclamation No. 1102 and Presidential
Decrees Nos. 86 and 86-A, claiming that the ratification of the new
Constitution pursuant to the said decrees is invalid and of no effect.
Presidential Decree No. 86 organized the barangays or Citizens Assemblies
composed of all citizens at least fifteen years of age, and through these
assemblies the proposed 1972 Constitution was submitted to the people
for ratification. Proclamation No. 1102 of the President announced or
declared the result of the referendum or plebiscite conducted through the
Citizens Assemblies, and that 14,976,561 members thereof voted for the
ratification of the new Constitution and 743,869 voted against it.
Petitioners assail these two acts of the President as unauthorized and
devoid of legal effect.
But looking through the veneer of judicial conformity with which the
petitions have been adroitly contrived, what is sought to be invalidated is
the new Constitution itself — the very framework of the present
Government since January 17, 1973. The reason is obvious. The
Presidential decrees set up the means for the ratification and acceptance
of the new Constitution and Proclamation No. 1102 simply announced the
result of the referendum or plebiscite by the people through the Citizens
Assemblies. The Government under the new Constitution has been running
on its tracks normally and apparently without obstruction in the form of
organized resistance capable of jeopardizing its existence and disrupting its
operation. Ultimately the issue is whether the new Constitution may be set
aside by this Court. But has it the power and authority to assume such a
stupendous task when the result of such invalidation would be to subject
this nation to divisive controversies that may totally destroy the social
order which the Government under the new Constitution has been
admirably protecting and promoting under Martial Law? That the new
Constitution has taken deep root and the people are happy and contended
with it is a living reality which the most articulate critics of the new order
cannot deny. 95 out of 108 members of the House of Representatives have
opted to serve in the interim National Assembly provided for under the
new Constitution. 15 out of 24 Senators have done likewise. The members
of the Congress did not meet anymore last January 22, 1973, not because
they were really prevented from so doing but because of no serious effort
on their parts to assert their offices under the 1935 Constitution. In brief,
the Legislative Department under the 1935 Constitution is a thing of the
past. The Executive Department has been fully reorganized; the
appointments of key executive officers including those of the Armed Forces
were extended and they took an oath to support and defend the new
Constitution. The courts, except the Supreme Court by reason of these
cases, have administered justice under the new constitution. All
government offices have dealt with the public and performed their
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functions according to the new Constitution and laws promulgated
thereunder.
If the real purpose of the petitions is to set aside the new Constitution,
how can this Court justify its assumption of jurisdiction when no power has
... conferred upon it the jurisdiction to declare the Constitution or any part
thereof null and void? It is the height of absurdity and impudence for a
court to wage open war against the organic act to which it owes its
existence. The situation in which this Court finds itself does not permit it to
pass upon the question whether or not the new Constitution has entered
into force and has superseded the 1935 Constitution. If it declares that the
present Constitution has not been validly ratified, it has to uphold the 1935
Constitution as still the prevailing organic law. The result would be too
anomalous to describe, for then this Court would have to declare that it is
governed by one Constitution or the 1935 Constitution, and the legislative
and executive branches by another or the 1972 Constitution.
If it declares that the 1972 Constitution is now operative, how can it
exercise judicial discretion in these cases when it would have no other
choice but to uphold the new Constitution as against any other one? In the
circumstances it would be bereft of judicial attributes as the matter would
then be not meet for judicial determination, but one addressed to the
sovereign power of the people who have already spoken and delivered
their mandate by accepting the fundamental law on which the government
of this Republic is now functioning. To deny that the new Constitution has
been accepted and actually is in operation would be flying in the face of
reason and pounding one's bare head against a veritable stone wall or a
heavily reinforced concrete, or simply "kicking the deadly pricks" with one's
bare foot in an effort to eliminate the lethal points.
When a Constitution has been in operation for sometime, even without
popular ratification at that, submission of the people thereto by the
organization of the government provided therein and observance of its
prescriptions by public officers chosen thereunder, is indicative of
approval. Courts should be slow in nullifying a Constitution claimed to have
been adopted not in accordance with constitutional or statutory directives
[Miller vs. Johnson, 92 Ky. 589; 189 S.W. 522; Taylor vs Commonwealth,
101; Va. 829; 44 S.E. 754; Smith vs. Good, 34 F 204, 207; Wiston vs. Ryan,
70 Neb. 211; 97 N.W. 347].
In Miller vs. Johnson, supra, the Court said:
... But it is a case where a new constitution has been
formed and promulgated according to the forms of law.
Great interests have already arisen under it; important
rights exist by virtue of it; persons have been convicted
of the highest crimes known to the law, according to its
provisions; the political power of the government has

in many ways recognized it; and, under such
circumstances, it is our duty to treat and regard it as a
valid constitution, and now the organic law of our state.
We need not consider the validity of the amendments
made after the convention reassembled. If the making
of them was in excess of its power, yet as the entire
instrument has been recognized as valid in the manner
suggested, it would be equally an abuse of power by the
judiciary, and violative of the rights of the people, —
who can and properly should remedy the matter, if not
to their liking, — if it were to declare the instrument or
a portion invalid, and bring confusion and anarchy upon
the state. (Emphasis supplied)
In Smith vs. Good, supra, the Court said:
It is said that a state court is forbidden from entering
upon such an inquiry when applied to a new
constitution, and not an amendment, because the
judicial power presupposes an established government,
and if the authority of that government is annulled and
overthrown, the power of its courts is annulled with it;
therefore, if a state court should enter upon such an
inquiry, come to the conclusion that the government
under which it acted had been displaced by an
opposing government, it would cease to be a court, and
it would be incapable of pronouncing a judicial decision
upon the question before it; but, if it decides at all, it
must necessarily affirm the existence of the
government under which it exercises its judicial
powers. (Emphasis supplied)
These rules are all traceable to Luther vs. Borden, 48 U.S (7 How.), 12 L. Ed.
581, 598 (1849) where it was held:
Judicial power presupposes an established government
capable of enacting laws and enforcing their execution,
and appointing judges to expound and administer
them. The acceptance of the judicial office is a
recognition of the authority of government from which
it is derived. And if the authority of the government is
annulled and overthrown, the power of its courts and
other officers is annulled with it. And if a State court
should enter upon the inquiry proposed in this case,
and should come to conclusion that the government
under which it acted had been put aside and displaced
by an opposing government it would cease to be a
court, and be incapable of pronouncing a judicial
decision upon the question it undertook to try. If it
decides at all as a court, it necessarily affirms the
existence and authority of the government under which
it is exercising judicial power.
The foreign relations of the Republic of the Philippines have been normally
conducted on the basis of the new Constitution and no state with which we
maintain diplomatic relations has withdrawn its recognition of our
government. (For particulars about executive acts done under the new
Constitution, see pages 22-25 of the Comments of the Solicitor General,
dated February 3, 1973.)
Certainly the invalidation of Proclamation No. 1102 and Presidential
Decrees Nos. 86 and 86-A by this Court would smack of plain political
meddling which is described by the United States Supreme Court as
"entering a political thicket" in Colegrove vs. Green, 328 U.S. p. 549. At this
juncture it would be the part of wisdom for this Court to adopt the proper
attitude towards political upheavals and realize that the question before Us
is political and not fit for judicial determination. For a political question is
one entrusted to the people for judgment in their sovereign capacity
(Tañada vs. Cuenco, G.R. No. L-10520, Feb. 28,1967; 100 Phil. 1101), or to a
co-equal and coordinate branch of the Government (Vera vs. Arellano, 77
Phil. 192; Mabanag vs. Lopez Vito, 78 Phil. 1; Alejandrino vs. Quezon, 46
Phil. 35; Cabili vs. Francisco, G.R. No. 4638, May 8, 1931). A case involves a
political question when there would be "the impossibility of undertaking
independent resolutions without expressing a lack of respect due to
coordinate branches of government", or when there is "the potentiality of
embarrassment from multifarious pronouncements by various
departments on one question."
To preserve the prestige and eminence that this Court has long enjoyed as
the "ultimate organ of the "Supreme Law of the Land" in that vast range of
legal problems often strongly entangled in popular feeling on which this
Court must pronounce", let us harken to the following admonition of
Justice Frankfurter in his dissent in Baker vs. Carr, 369 U.S. 186; 82 S. Ct.
691; 7 L. Ed. 2d. 663:
The Court's authority — possessed neither of the purse
nor the sword — ultimately rests on sustained public
confidence in its moral sanction. Such feeling must be
nourished by the Court's complete detachment, in fact
and appearance, from political entanglements and
abstention from injecting itself into the clash of political
forces in political settlement. ..." (Emphasis supplied)
The people have accepted and submitted to a Constitution to replace the
1935 Constitution. The new organic law is now in the plenitude of its
efficacy and vigor. We are now living under its aegis and protection and
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only the cynics will deny this. This Court should not in the least attempt to
act as a super-legislature or a super-board of canvassers and sow confusion
and discord among our people by pontificating there was no valid
ratification of the new Constitution. The sober realization of its proper role
and delicate function and its consciousness of the limitations on its
competence, especially situations like this, are more in keeping with the
preservation of our democratic tradition than the blatant declamations of
those who wish the Court to engage in their brand of activism and would
not mind plunging it into the whirlpool of passion and emotion in an effort
to capture the intoxicating applause of the multitude.
For all the foregoing, I vote to dismiss all petitions.
ZALDIVAR, J., concurring and dissenting:
In these five cases, the main issue to be resolved by Court is whether or not
the Constitution proposed by the Constitutional Convention of 1971 had
been ratified in accordance with the provisions of Article XV of the 1935
Constitution. In the plebiscite cases, which were decided by this Court on
January 22, 19731, I held the view that this issue could be properly resolved
by this Court, and that it was in the public interest that this Court should
declare then whether or not the proposed Constitution had been validly
ratified. The majority of this Court, however, was of the view that the issue
was not squarely raised in those cases, and so the Court, as a body, did
make any categorical pronouncement on the question of whether or not
the Constitution proposed by the 1971 Convention was validly ratified. I
was the only one who expressed the opinion that the proposed
Constitution was not validly ratified and therefore "it should not be given
force and effect."
The Court is now called upon to declare, and to inform the people of this
country, whether or not that proposed Constitution had been validly
ratified and had come into effect.
The Solicitor General, however, contends that this Court has no jurisdiction
to resolve the issue that we have mentioned because that issue is a
political question that cannot be decided by this Court. This contention by
the Solicitor General is untenable. A political question relates to "those
questions which under the Constitution are to be decided by the people in
their sovereign capacity or in regard to which full discretionary authority
has been delegated to the legislative, or to the executive, branch of the
government.2 The courts have the power to determine whether the acts of
the executive are authorized by the Constitution and the laws whenever
they are brought before the court in a judicial proceeding. The judicial
department of the government exercises a sort of controlling, or rather
restraining, power over the two other departments of the government.
Each of the three departments, within its proper constitutional sphere, acts
independently of the other, and restraint is only placed on one department
 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
question.7
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

subject to all the provisions of the
existing Constitution. Now we hold
that even as to its latter task of
proposing amendments to the
Constitution, it is subject to the
provisions of Section 1 of Article
XV."
In Proclamation No. 1102, issued on January 17, 1973,
the President of the Philippines certified that as a result
of the voting before the barangays (Citizens
Assemblies) 14,976,561 members of the barangays
voted for the adoption of the proposed Constitution, as
against 743,869 who voted for its rejection, and on the
basis of the overwhelming majority of the votes cast by
the members of all the barangays throughout the
Philippines, the President proclaimed that the
Constitution proposed by the 1971 Convention has
been ratified and has thereby come into effect.
It is very plain from the very wordings of Proclamation
No. 1102 that the provisions of Section 1 of Article XV
of the Constitution of 1935 were not complied with. It
is not necessary that evidence be produced before this
Court to show that no elections were held in
accordance with the provisions of the Election Code.
Proclamation No. 1102 unequivocally states that the
proposed Constitution of 1972 was voted upon by the
barangays. It is very clear, therefore, that the voting
held in these barangays is not the election
contemplated in the provisions of Section 1, Article XV,
of the 1935 Constitution. The election contemplated in
said constitutional provision is an election held in
accordance with the provisions of the election law,
where only the qualified and registered voters of the
country would cast their votes, where official ballots
prepared for the purpose are used, where the voters
would prepare their ballots in secret inside the voting
booths in the polling places established in the different
election precincts throughout the country, where the
election is conducted by election inspectors duly
appointed in accordance with the election law, where
the votes are canvassed and reported in a manner
provided for in the election law. It was this kind of
election that was held on May 14, 1935, when the
Constitution of 1935 was ratified; on April 30, 1937,
when the amendment to the Constitution providing for
Women's Suffrage was ratified; on June 18, 1940, when
the 1940 Amendments to the Constitution were
ratified; on March 11, 1947 when the Parity
Amendment to the Constitution was ratified; and on
November 14, 1967 when the amendments to the
Constitution to increase the number of Members of the
House of Representatives and to allow the Members of
Congress to run in the elections for Delegates to the
Constitutional Convention of 1971 were rejected.
I cannot see any valid reason why the practice or
procedure in the past, in implementing the
constitutional provision requiring the holding, of an
election to ratify or reject an amendment to the
Constitution, has not been followed in the case of the
Constitution proposed by the 1971 Constitutional
Convention.
It is my view that the President of the Philippines
cannot by decree order the ratification of the proposed
1972 Constitution thru a voting in the barangays and
make said result the basis for proclaiming the
ratification of the proposed constitution. It is very clear,
to me, that Proclamation No. 1102 was issued in
complete disregard or in violation, of the provisions of
Section 1 of Article X of the 1935 Constitution.
Proclamation No. 1102 mentions, furthermore, that on
the question as to whether or not the people would
still like a plebiscite to be called to ratify the new
Constitution, 14,298,814 members of the barangays
answered that there was no need for a plebiscite but
that the vote of the barangays should be considered a
vote in a plebiscite. It would thus appear that the
barangays assumed the power to determine whether a
plebiscite as ordained in the Constitution be held or
not. Indeed, the provision of Section 1, Article XV of the
Constitution was completely disregarded.
The affirmative votes cast in the barangays are not the
votes contemplated in Section 1 of Article XV of the
1935 Constitution. The votes contemplated in said
constitutional provision are votes obtained through the
election processes as provided by law.
"An election is the embodiment of
the popular will, the expression of
the sovereign power of the people.
In common parlance, an election is
Page 71 of 158
the act of casting and receiving the
ballots, counting them, and making
the return." (Hontiveros vs. Altavas,
24 Phil. 632, 637).
"Election" implies a choice by an
electoral body at the time and
substantially in the manner and
with the safeguards provided by
law with respect to some question
or issue. (Leffel v. Brown, Com. P1.,
159 N.E. 2d 807, 808 cited in 29
C.J.S. 13 at footnote 6.5).
"... the statutory method
whereby qualified voters or electors
pass on various public matters
submitted to them — the election
of officers, national, state, county,
township — the passing on various
other questions submitted for their
determination." (29 C.J.S. 13, citing
Iowa-Illinois Gas & Elec. Co. v. City
of Bettendorf, 41 N.W. 2d 1, 5, 241
Iowa 358).
"Election" is expression of choice
by voters of body politic. (Ginsburg
v. Giles, 72 S.W. 2d 438, 254 Ky.
720, in Words and Phrases,
Permanent Edition, p. 234).
"The right to vote may be exercised
only on compliance with such
statutory requirements as have
been set by the legislature."
(People ex rel. Rago v. Lipsky, 63
N.E. 2d 642, 327 III. App. 63;
Rothfels v. Southworth, 356 P. 2d
612, 11 Utah 2d 169 in 29 C.J.S. 38).
(Emphasis supplied).
In this connection I herein quote the pertinent
provisions of the Election Code of 1971:
"Sec. 2. Applicability of this Act. — All elections of
public officers except barrio officials and plebiscites

shall be conducted in the manner provided by this
Code."
"Sec 99. Necessity of registration to be entitled to vote.
— In order that a qualified voter may vote in any
regular or special election or in any plebiscite, he must
be registered in the permanent list of voters for the
city, municipality or municipal district in which he
resides: Provided, that no person shall register more
than once without first applying for cancellation of his
previous registration." (Emphasis supplied). (Please see
also Sections 100-102, Election Code of 1971, R.A. No.
6388)
It is stated in Proclamation No. 1102 that the voting
was done by the members of citizens assemblies who
are 15 years of age or over. Under the provision of
Section I of Article V of the 1935 Constitution, the age
requirement to be a qualified voter is 21 years or over.
But what is more noteworthy is the fact that the voting
in the barangays, except in very few instances, was
done by the raising of hands by the persons
indiscriminately gathered to participate in the voting,
where even children below 15 years of age were
included. This is a matter of common observation, or of
common knowledge, which the Court may take judicial
notice of. To consider the votes in the barangays as
expressive of the popular will and use them as the basis
in declaring whether a Constitution is ratified or
rejected is to resort to a voting by demonstrations,
which is would mean the rule of the crowd, which is
only one degree higher than the rule by the mob.
Certainly, so important a question as to whether the
Constitution, which is the supreme law of the land,
should be ratified or not, must not be decided by
simply gathering people and asking them to raise their
hands in answer to the question of whether the vote
for or against a proposed Constitution. The election as
provided by law should be strictly observed in
determining the will of the sovereign people in a
democracy. In our Republic, the will of the people must
be expressed through the ballot in a manner that is
provided by law.
It is said that in a democracy, the will of the people is
the supreme law. Indeed, the people are sovereign, but
the will of the people must be expressed in a manner as
the law and the demands a well-ordered society
require. The rule of law must prevail even over the
apparent will of the majority of the people, if that will
had not been expressed, or obtained, in accordance
with the law. Under the rule of law, public questions
must be decided in accordance with the Constitution
and the law. This is specially true in the case of
adoption of a constitution or in the ratification of an
amendment to the Constitution.
The following citations are, to me, very relevant in the
effort to determine whether the proposed Constitution
of 1972 had been validly ratified, or not:
"When it is said that "the people"
have the right to alter or amend the
constitution, it must not be
understood that term necessarily
includes all the inhabitants of the
state. Since the question of the
adoption or rejection of a proposed
new constitution or constitutional
amendment must be answered a
vote, the determination of it rests
with those who, by existing
constitution, are accorded the right
of suffrage. But the qualified
electors must be understood in this,
as in many other cases, as
representing those who have not
the right to participate in the ballot.
If a constitution should be
abrogated and a new one adopted,
by the whole mass of people in a
state acting through
representatives not chosen by the
"people" in political sense of the
term, but by the general body of
the populace, the movement would
be extra-legal." (BIack's
Constitutional Law, Second Edition,
pp. 47-48).
"The theory of our political system
is that the ultimate sovereignty is in
the people, from whom springs all
legitimate authority. The people of
the Union created a national
Page 72 of 158
constitution, and conferred upon it
powers of sovereignty on certain
subjects, and the people of each
State created a State government,
to exercise the remaining powers of
sovereignty so far as they were
disposed to allow them to be
exercised at all. By the constitution
which they establish, they not only
tie up the hands of their official
agencies, but their own hands as
well; and neither the officers of the
State, nor the whole people as an
aggregate body, are at liberty to
take action in opposition to this
fundamental law." (Cooley's
Constitutional Limitations, 8th
Edition, Vol. I, p. 81 cited in Graham
v. Jones, 3 So. 2d. 761, 782).
"The theory that a favorable vote
by the electorate, however
unanimous, on a proposal to amend
a constitution, may cure, render
innocuous, all or any antecedent
failures to observe commands of
that Constitution in respect of the
formulation or submission of
proposed amendments thereto,
does not prevail in Alabama, where
the doctrine of the stated theory
was denied, in obvious effect, by
the pronouncement 60 years ago of
broad, wholesome constitutional
principles in Collier v.
Frierson, supra, as quoted in the
original opinion, ante. The people
themselves are bound by the
Constitution; and, being so bound,
are powerless, whatever their
numbers, to change or thwart its
mandates, except through the
peaceful means of a constitutional
convention, or of an amendment
according to the mode therein
prescribed, or through the exertion
of the original right of revolution.
"The Constitution may be set aside
by revolution, but it can only be

amended in the way it provides,"
said Hobson, C.J., in McCreary v.
Speer, 156 Ky. 783, 791, 162 S.W.
99, 103. (Johnson vs. Craft, et al., 87
So. 375, 385, 387, On Rehearing).
"The fact that a majority voted for
the amendment, unless the vote
was taken as provided by the
Constitution, is not sufficient to
make a change in that instrument.
Whether a proposed amendment
has been legally adopted is a
judicial question, for the court must
uphold and enforce the
Constitution as written until it is
amended in the way which it
provides for." Wood v. Tooker, 15
Mont. 8, 37 Pac 840, 25 L.R.A.
560; McConaughty v. State, 106
Minn. 409, 119 N.W. 408; Oakland
Paving Company v. Hilton, 69 Cal.
499, 11 Pac. 3; Utter v. Mosely, 16
Idaho 274, 100 Pac. 1958, 133 Am.
St. Rep. 94, 18 Ann. Cas. 723.
(McCreary v. Speer, 162 S.W. 99,
104).
"Provisions of a constitution
regulating its own amendment, ...
are not merely directory, but are
mandatory; and a strict observance
of every substantial mandatory; and
a strict observance of every
substantial requirement is essential
to the validity of the proposed
amendment. These provisions are
as binding on the people as on the
legislature, and the former are
powerless by vote of acceptance to
give legal sanction to an
amendment the submission of
which was made in disregard of the
limitations contained in the
constitution." (16 C.J.S. 35-36. cited
in Graham v. Jones, 3 So. 2d 761,
782).
"It is said that chaos and confusion
in the government affairs of the
State will result from the Court's
action in declaring the proposed
constitutional amendment void.
This statement is grossly and
manifestly inaccurate. If confusion
and chaos should ensue, it will not
be due to the action of the Court
but will be the result of the failure
of the drafters joint resolution to
observe, follow and obey the plain
essential provisions of the
Constitution. Furthermore, to say
that, the Court disregards its sworn
duty to enforce the Constitution,
chaos and confusion will result, is
an inherently weak argument in
favor of the alleged
constitutionality of the proposed
amendment. It is obvious that, if
the Court were to countenance the
violations of the sacramental
provisions Constitution, those who
would thereafter desire to violate it
disregard its clear mandatory
provisions would resort to the
scheme of involving and confusing
the affairs of the State then simply
tell the Court that it was powerless
to exercise one of its primary
functions by rendering the proper
decree to make the Constitution
effective." (Graham v. Jones, 3 So.
2d. 761, 793-794).
In our jurisprudence I find an instance where this Court
did not allow the will of the majority to prevail, because
the requirements of the law were not complied with. In
the case of Monsale v. Nico, 83 Phil. 758, Monsale and
Nico were both candidates for the office of Municipal
Mayor of Miagao, Iloilo, in the elections of November
11, 1947. Monsale had duly filed his certificate of
candidacy before the expiration of the period for the
filing of the same. However, on October 10, 1947, after
the period for the filing of the certificate of candidacy,
Monsale withdrew his certificate of candidacy. But on
November 7, 1947 Monsale attempted to revive his
certificate of candidacy by withdrawing the withdrawal
Page 73 of 158
of certificate of candidacy. The Commission on
Elections, November 8, 1947, ruled that Monsale could
no longer be a candidate. Monsale nevertheless
proceeded with his candidacy. The boards of inspectors
in Miagao, however, did not count the votes cast for
Monsale upon the ground that the votes cast for him
were stray votes, because he was considered as having
no certificate of candidacy. On the other hand, the
boards of inspectors credited Nico with 2,291 votes,
and Nico was proclaimed elected. Monsale filed a
protest against the election of Nico in the Court of First
Instance of Iloilo. In the count of the ballots during the
proceedings in the trial court, it appeared that Monsale
had obtained 2,877 votes while Nico obtained 2,276
votes, or a margin of 601 votes in favor of Monsale. The
Court of First Instance of Iloilo decided the election
protest in favor of Monsale. Upon appeal by Nico, this
Court reversed the decision of the lower court. This
Court declared that because Monsale withdrew his
certificate of candidacy, his attempt to revive it by
withdrawing his withdrawal of his certificate of
candidacy did not restore the effectiveness of his
certificate of candidacy, and this Court declared Nico
the winner in spite of the fact that Monsale had
obtained more votes than he.
We have cited this Monsale case to show that the will
of the majority of the voters would not be given effect,
as declared by this Court, if certain legal requirements
have not been complied with in order to render the
votes valid and effective to decide the result of an
election.
And so, in the cases now before this Court, the fact that
the voting in the citizens assemblies (barangays) is not
the election that is provided for in the 1935
Constitution for the ratification of the amendment to
the Constitution, the affirmative votes cast in those
assemblies can not be made the basis for declaring the
ratification of the proposed 1972 Constitution, in spite
of the fact that it was reported that 14,976,561
members of the citizens assemblies voted for the
adoption as against 743,869 for the rejection, because
the votes thus obtained were not in accordance with
the provisions of Section 1 of Article XV of the 1935
Constitution of the Philippines. The rule of law mast be
upheld.

My last observation: One of the valid grounds against
the holding of the plebiscite on January 15, 1973, as
provided in Presidential Decree No. 73, is that there is
no freedom on the part of the people to exercise their
right of choice because of the existence of martial law
in our country. The same ground holds true as regards
to the voting of the barangays on January 10 to 15,
1973. More so, because by General Order No. 20,
issued on January 7, 1973, the President of the
Philippines ordered "that the provisions of Section 3 of
Presidential Decree No. 73 in so far as they allow free
public discussion of the proposed constitution, as well
as my order of December 17, 1972 temporarily
suspending the effects of Proclamation No. 1081 for
the purpose of free and open debate on the proposed
constitution, be suspended in the meantime." It is,
therefore, my view that voting in the barangays on
January 10, 1973 was not free, and so this is one added
reason why the results of the voting in the barangays
should not be made the basis for proclamation of the
ratification of the proposed Constitution.
It is my view, therefore, that Proclamation No. 1102
repugnant to the 1935 Constitution, and so it is invalid,
and should not be given effect. The Constitution of
1972 proposed by the 1971 Constitutional Convention
should be considered as not yet ratified by the people
of this Republic, and so it should not be given force and
effect.
It is urged by the Solicitor General, however, that the voting in the citizens
assemblies was a substantial compliance with the provisions of Article XV
of the 1935 Constitution. The Solicitor General maintains that the primary
thrust of the provision of Article XV of the 1935 Constitution is that "to be
valid, amendments must gain the approval of the majority recognition of
the democratic postulate that sovereign resides in the people." It is not
disputed that in a democratic sovereignty resides in the people. But the
term "people" must be understood in its constitutional meaning, and they
are "those persons who are permitted by the Constitution to exercise the
elective franchise."8Thus, in Section 2 of Article VII of the 1935
Constitution, it is provided that "the President shall hold his office during a
term of four years and, together with the Vice-President chosen for the
same term, shall be elected by direct vote of the people..." Certainly under
that constitutional provision, the "people" who elect directly the President
and the Vice-President are no other than the persons who, under the
provisions of the same Constitution, are granted the right to vote. In like
manner the provision in Section 1 of Article II of the 1935 Constitution
which says "Sovereignty resides in the people and all government authority
emanates from them", the "people" who exercise the sovereign power are
no other than the persons who have the right to vote under the
Constitution. In the case of Garchitorena vs. Crescini9, this Court, speaking
through Mr. Justice Johnson, said, "In democracies, the people, combined,
represent the sovereign power of the State. Their sovereign authority is
expressed through the ballot, of the qualified voters, in duly appointed
elections held from time to time, by means of which they choose their
officials for definite fixed periods, and to whom they entrust, for the time
being, as their representatives, the exercise of the powers of government."
In the case of Moya v. Del Fierro, 10 this Court, speaking through Mr. Justice
Laurel, said, "As long as popular government is an end to be achieved and
safeguarded, suffrage, whatever may be the modality and form devised,
must continue to be the means by which the great reservoir of power must
be emptied into the receptacular agencies wrought by the people through
their Constitution in the interest of good government and the common
weal. Republicanism, in so far as it implies the adoption of a representative
type of government, necessarily points to the enfranchised citizen as a
particle of popular sovereignty and as the ultimate source of the
established authority." And in the case of Abanil v. Justice of the Peace of
Bacolod, 11 this Court said: "In the scheme of our present republican
government, the people are allowed to have a voice therein through the
instrumentality of suffrage to be availed of by those possessing certain
prescribed qualifications. The people, in clothing a citizen with the elective
franchise for the purpose of securing a consistent and perpetual
administration of the government they ordain, charge him with the
performance of a duty in the nature of a public trust, and in that
respect constitute him a representative of the whole people. This duty
requires that the privilege thus bestowed exclusively for the benefit of the
citizen or class of citizens professing it, but in good faith and with an
intelligent zeal for the general benefit and welfare of the state. (U.S. v.
Cruikshauk, 92 U.S. 588)..." There is no question, therefore, that when we
talk of sovereign people, what is meant are the people who act through the
duly qualified and registered voters who vote during an election that is
held as provided in the Constitution or in the law.
The term "election" as used in Section 1 of Article XV of the 1935
Constitution should be construed along with the term "election" as used in
the Provisions of Section 4 of the Philippine Independence Act of the
Congress of the United States, popularly known as the Tydings-McDuffie
Law (Public Act No. 127). Said Section 4 of the Tydings-McDuffie Law
provides as follows:
Section 4. After the President of the United States
certified that the constitution conforms with the
provisions of this act, it shall be submitted to the
people of the Philippine Islands for their ratification or
rejection at an election to he held within months after
the date of such certification, on a date to be fixed by
Page 74 of 158
the Philippine Legislature at which election, the
qualified voters of the Philippine Islands shall have an
opportunity to vote directly or against the proposed
constitution and ordinances append thereto. Such
election shall be held in such manner as may prescribed
by the Philippine Legislature to which the return of the
election shall be made. The Philippine Legislature shall
certify the result to the Governor-General of the
Philippine Islands, together with a statement of the
votes cast, and a copy of said constitution ordinances. If
a majority of the votes cast shall be for the
constitution, such vote shall be deemed an expression
of the will of the people of the Philippine
Independence, and the Governor-General shall, within
thirty days after receipt of the certification from the
Philippine Legislature, issue a proclamation for
the election of officers of the government of the
Commonwealth of the Philippine Islands provided for in
the Constitution...
It can safely be said, therefore, that when the framers of the 1935
Constitution used, the word "election" in Section I Article XV of the 1935
Constitution they had no other idea in mind except the elections that were
periodically held in the Philippines for the choice of public officials prior to
the drafting of the 1935 Constitution, and also the "election" mentioned in
the Independence Act at which "the qualified voters of the Philippine
Islands shall have an opportunity to vote directly for or against the
proposed constitution..." It is but logical to expect that the framers of the
1935 Constitution would provide a mode of ratifying an amendment to
that Constitution similar to the mode of ratifying the original Constitution
itself.
It is clear therefore, that the ratification or any amendment to the 1935
Constitution could only be done by holding an election, as the term
"election" was understood, and practiced, when the 1935 Constitution as
drafted. The alleged referendum in the citizens assemblies — participated
in by persons aged 15 years or more, regardless of whether they were
qualified voters or not, voting by raising their hands, and the results of the
voting reported by the barrio or ward captain, to the municipal mayor, who
in turn submitted the report to the provincial Governor, and the latter
forwarding the reports to the Department of Local Governments, all
without the intervention of the Commission on Elections which is the
constitutional body which has exclusive charge of the enforcement and
administration of all laws, relative to the conduct of elections — was not
only a non-substantial compliance with the provisions of Section 1 of
Article XV of the 1935 Constitution but a downright violation of said
constitutional provision. It would be indulging in sophistry to maintain that
the voting in the citizens assemblies amounted to a substantial compliance

with the requirements prescribed in Section 1 of Article XV of the 1935
Constitution.
It is further contended by the Solicitor General, that even if the
Constitution proposed by the 1971 Constitutional Convention was not
ratified in accordance with the provisions of Section 1 of Article XV of the
1935 Constitution, the fact is that after the President of the Philippines had
issued Proclamation No. 1102 declaring that the said proposed
Constitution "has been ratified by overwhelming majority of all the votes
cast by the members of all the barangays (citizens assemblies) throughout
the Philippines and had thereby come into effect" the people have
accepted the new Constitution. What appears to me, however, is that
practically it is only the officials and employees under the executive
department of the Government who have been performing their duties
apparently in observance of the provisions of the new Constitution. It could
not be otherwise, because the President of the Philippines, who is the head
of the executive department, had proclaimed that the new Constitution
had come into effect, and his office had taken the steps to implement the
provisions of the new Constitution. True it is, that some 92 members of the
House of Representatives and 15 members of the Senate, of the Congress
of the Philippines had expressed their option to serve in the interim
National Assembly that is provided for in Section 2 of Article XVII of the
proposed Constitution. It must be noted, however, that of the 15 senators
who expressed their option to serve in the interim National Assembly only
one them took his oath of office; and of the 92 members of the House of
Representatives who opted to serve in the interim National Assembly, only
22 took their oath of office. The fact that only one Senator out of 24, and
only 22 Representative out of 110, took their oath of office, is an indication
that only a small portion of the members of Congress had manifested the
acceptance of the new Constitution. It is in the taking of the oath of office
where the affiant says that he swears to "support and defend the
Constitution" that the acceptance of the Constitution is made manifest. I
agree with counsel petitioners in L-36165 (Gerardo Roxas, et al. v.
Alejandro Melchor, et al.) when he said that the members of Congress who
opted to serve in the interim National Assembly did only ex abundante
cautela, or by way of a precaution, making sure, that in the event the new
Constitution becomes definitely effective and the interim National
Assembly convened, they can participate in legislative work in the capacity
as duly elected representatives of the people, which otherwise they could
not do if they did not manifest their option to serve, and that option had to
be made within 30 day from January 17, 1973, the date when Proclamation
No. 110 was issued. Of course, if the proposed Constitution does not
become effective, they continue to be members of Congress under the
1935 Constitution. Let it be considered that the members of the House of
Representatives were elected in 1969 to serve a term which will yet expire
on December 31, 1973. Whereas, of the Senators who opted to serve in the
interim National Assembly, the term of some of them will yet expire on
December 31, 1973, some on December 31, 1975, and the rest on
December 31, 1977. Let if be noted that 9 Senators did not opt to serve in
the interim National Assembly, and 18 members of the House of
Representatives also did not opt to serve in the interim National Assembly.
Neither can it be said that the people have accepted the new Constitution.
I cannot, in conscience, accept the reported affirmative votes in the
citizens assemblies as a true and correct expression by the people of their
approval, or acceptance, of the proposed Constitution. I have my serious
doubts regarding the freedom of the people to express their views
regarding the proposed Constitution during the voting in the citizens
assemblies, and I have also my serious doubts regarding the truthfulness
and accuracy of the reports of the voting in the citizens assemblies. This
doubt has been engendered in my mind after a careful examination and
study of the records of these cases, particularly with respect to the reports
of the voting in the citizens assemblies. Perhaps, it may be said that the
people, or the inhabitants of this country, have acquiesced to the new
Constitution, in the sense that they have continued to live peacefully and
orderly under the government that has been existing since January 17,
1973 when it was proclaimed that the new Constitution came into effect.
But what could the people do? In the same way that the people have lived
under martial law since September 23, 1972, they also have to live under
the government as it now exists, and as it has existed since the declaration
of martial law on September 21, 1972, regardless of what Constitution is
operative — whether it is the 1935 Constitution or the new Constitution.
Indeed, there is nothing that the people can do under the circumstances
actually prevailing in our country today — circumstances, known to all, and
which I do not consider necessary to state in this opinion. I cannot agree,
therefore, with my worthy colleagues in the Court who hold the view that
the people have accepted the new Constitution, and that because the
people have accepted it, the new Constitution should be considered as in
force, regardless of the fact that it was not ratified in accordance with the
provisions of Section 1 of Article XV of the 1935 Constitution.
It is my honest view that the Constitution proposed by the 1971
Constitutional Convention has not come into effect. I do not say, however,
that the proposed Constitution is invalid. To me, the validity of the
proposed Constitution is not in issue in the cases before Us. What the
petitioners assail is not the validity of the proposed Constitution but the
validity of Presidential Proclamation No. 1102 which declares the proposed
Constitution as having been ratified and has come into effect. It being my
considered view that the ratification of the proposed Constitution, as
proclaimed in Proclamation No. 1102, is not in accordance with the
provisions of Section 1 of Article XV, of the 1935 Constitution, I hold that
Proclamation No. 1102 is invalid and should not be given force and effect.
Their proposed Constitution, therefore, should be considered as not yet
validly ratified, and so it is not in force. The proposed Constitution may still
be submitted to a plebiscite in conformity with Section 1 of Article XV of
the 1935 Constitution. Incidentally, I must state that the Constitution is still
in force, and this Court is still functioning under the 1935 Constitution.
Page 75 of 158
I sincerely believe that the proposed Constitution may still be submitted to
the people in an election or plebiscite held in accordance with the
provisions of Section 1 of Article XV of the 1935 Constitution. In fact, as we
have adverted to in this opinion, this was the mandate of Congress when,
on March 16, 1967, it passed Resolution No. 2 calling a convention to
propose amendments to the 1935 Constitution. The Court may take judicial
notice of the fact that the President of the Philippines has reassured the
nation that the government of our Republic since the declaration of martial
law is not a revolutionary government, and that he has been acting all the
way in consonance with his powers under the Constitution. The people of
this Republic has reason to be happy because, according to the President,
we still have a constitutional government. It being my view that the 1935
Constitution is still in force, I believe Congress may still convene and pass a
law calling for an election at which the Constitution proposed by the 1971
Constitutional Convention will be submitted to the people their ratification
or rejection. A plebiscite called pursuant to Section 1 of Article XV of the
1935 Constitution is an assurance to our people that we still have in our
country the Rule of Law and that the democratic system of government
that has been implanted in our country by the Americans, and which has
become part of our social and political fabric, is still a reality.
The views that I have expressed in this opinion are inspired by a desire on
my part to bring about stability in democratic and constitutional system in
our country. I feel that if this Court would give its imprimatur to the
ratification of the proposed Constitution, as announced in Proclamation
No. 1102, it being very clear that the provisions of Section 1 of Article XV of
the 1935 Constitution had not been complied with, We will be opening the
gates for a similar disregard of the Constitution in the future. What I mean
is that if this Court now declares that a new Constitution is now in force
because the members of the citizens assemblies had approved the said
new Constitution, although that approval was not in accordance with the
procedure and the requirements prescribed in the 1935 Constitution, it can
happen again in some future time that some amendments to the
Constitution may be adopted, even in a manner contrary to the existing
Constitution and the law, and then said proposed amendment is submitted
to the people in any manner and what will matter is that a basis is claimed
that there was approval by the people. There will not be stability in our
constitutional system, and necessarily no stability in our government. As a
member of this Court I only wish to contribute my humble efforts to
prevent the happening of such a situation in the future.
It appearing to me that the announced ratification of the proposed
Constitution through the voting in the citizens assemblies is a clear
violation of the 1935 Constitution, what I say in this opinion is simply an
endeavor on my part to be true to my oath of office to defend and support
the 1935 Constitution. I am inspired by what the great jurist and
statesman, Jose P. Laurel, said:

Let our judges be as it were the vestal keepers of the
purity and sanctity of our Constitution, and the
protection and vindication of popular rights will be safe
and secure in their reverential guardianship.
I only wish to help prevent, if I can, democracy and the liberties of our
people from vanishing in our land, because, as Justice George Sutherland of
the U. S. Supreme Court said:
(t)he saddest epitaph which can be carved in memory
of a vanished liberty is that it was lost because its
possessors failed to stretch forth a saving hand while
yet there was time.
I concur fully with the personal views expressed by the Chief Justice in the
opinion that he has written in these cases. Along with him, I vote to deny
the motion to dismiss and give due course to the petitions in these cases.
FERNANDO, J., dissenting:
No question more momentous, none impressed with such transcendental
significance is likely to confront this Court in the near or distant future as
that posed by these petitions. For while the specific substantive issue is the
validity of Presidential Proclamation No. 1102, an adverse judgment may
be fraught with consequences that, to say the least, are far-reaching in its
implications. As stressed by respondents, "what petitioners really seek to
invalidate is the new Constitution."1 Strict accuracy would of course qualify
such statement that what is in dispute, as noted in the opinion of the Chief
Justice, goes only as far as the validity of its ratification. It could very well
be though that the ultimate outcome is not confined within such limit, and
this is not to deny that under its aegis, there have been marked gains in the
social and economic sphere, but given the premise of continuity in a
regime under a fundamental law, which itself explicitly recognizes the need
for change and the process for bringing it about,2 it seems to me that the
more appropriate course is this Court to give heed to the plea of
petitioners that the most serious attention be paid to their submission that
the challenged executive act fails to meet the test of constitutionality.
Under the circumstances, with regret and with due respect for the opinion
of my brethren, I must perforce dissent. It would follow therefore that the
legal position taken by the Chief Justice as set forth with his usual lucidity
and thoroughness has, on the whole, my concurrence, subject, of course,
to reservations insofar as it contains views and nuances to which I have in
the past expressed doubts. Nonetheless, I feel that a brief expression of the
reasons for the stand I take would not be amiss.
In coping with its responsibility arising from the function of judicial review,
this Court is not expected to be an oracle given to utterances of eternal
verities, but certainly it is more than just a keen but passive observer of the
contemporary scene. It is, by virtue of its role under the separation of
powers concept, involved not necessarily as a participant in the formation
of government policy, but as an arbiter of its legality. Even then, there is
realism in what Lerner did say about the American Supreme Court as "the
focal point of a set of dynamic forces which [could play] havoc with the
landmarks of the American state and determine the power configuration of
the day."3 That is why there is this caveat. In the United States as here, the
exercise of the power of judicial review is conditioned on the necessity that
the decision of a case or controversy before it so requires. To repeat, the
Justices of the highest tribunal are not, as Justice Frankfurter made clear,
"architects of policy. They can nullify the policy of others, they are
incapable of fashioning their own solutions for social
problems."4 Nonetheless, as was stressed by Professors Black5and
Murphy,6 a Supreme Court by the conclusion it reaches and the decision it
renders does not merely check the coordinate branches, but also by its
approval stamps with legitimacy the action taken. Thus in affirming
constitutional supremacy, the political departments could seek the aid of
the judiciary. For the assent it gives to what has been done conduces to its
support in a regime where the rule of law holds sway. In discharging such a
role, this Court must necessarily take in account not only what the exigent
needs of the present demand but what may lie ahead in the unexplored
and unknown vistas of the future. It must guard against the pitfall of lack of
understanding of the dominant forces at work to seek a better life for all,
especially those suffering from the pangs of poverty and disease, by a blind
determination to adhere to the status quo. It would be tragic, and a clear
case of its being recreant to its trust, if the suspicion can with reason be
entertained that its approach amounts merely to a militant vigilantism that
is violently opposed to any form of social change. It follows then that it
does not suffice that recourse be had only to what passes for scholarship in
the law that could be marred by inapplicable erudition and narrow
legalism. Even with due recognition, such factors, however, I cannot, for
reasons to be set more lengthily and in the light of the opinion of the Chief
Justice, reach the same result as the majority of my brethren. For, in the
last analysis, it is my firm conviction that the institution of judicial review
speaks too clearly for the point to be missed that official action, even with
due allowance made for the good faith that invariably inspires the step
taken, has to face the gauntlet of a court suit whenever there is a proper
case with the appropriate parties.
1. Respondents are acting in the soundest constitutional tradition when, at
the outset, they would seek a dismissal of these petitions. For them, the
question raised is political and thus beyond the jurisdiction of this Court.
Such an approach cannot be indicted for unorthodoxy. It is implicit in the
concept of the rule of law that rights belong to the people and the
government possesses powers only. Essentially then, unless such an
authority may either be predicated on express or implied grant in the
Constitution or the statutes, an exercise thereof cannot survive an inquiry
as to its validity. Respondents through Solicitor-General Mendoza would
Page 76 of 158
deny our competence to proceed further. It is their view, vigorously
pressed and plausibly asserted, that since what is involved is not merely
the effectivity of an amendment but the actual coming into effect of a new
constitution, the matter is not justiciable. The immediate reaction is that
such a contention is to be tested in the light of the fundamental doctrine of
separation of powers that it is not only the function but the solemn duty of
the judiciary to determine what the law is and to apply it in cases and
controversies that call for decision.7 Since the Constitution pre-eminently
occupies the highest rung in the hierarchy of legal norms, it is in the
judiciary, ultimately this Tribunal, that such a responsibility is vested. With
the 1935 Constitution containing, as above noted, an explicit article on the
subject of amendments, it would follow that the presumption to be
indulged in is that the question of whether there has been deference to its
terms is for this Court to pass upon. What is more, the
Gonzales,8 Tolentino9 and Planas 10 cases speak unequivocally to that
effect. Nor is it a valid objection to this conclusion that what was involved
in those cases was the legality of the submission and not ratification, for
from the very language of the controlling article, the two vital steps are
proposal and ratification, which as pointed out in Dillon v. Gloss, 11 "cannot
be treated as unrelated acts, but as succeeding steps in a single
endeavor." 12 Once an aspect thereof is viewed as judicial, there would be
no justification for considering the rest as devoid of that character. It would
be for me then an indefensible retreat, deriving no justification from
circumstances of weight and gravity, if this Court were to accede to what is
sought by respondents and rule that the question before us is political.
On this point, it may not be inappropriate to refer to a separate opinion of
mine in Lansang v. Garcia. 13 Thus: "The term has been made applicable to
controversies clearly non-judicial and therefore beyond its jurisdiction or to
an issue involved in a case appropriately subject to its cognizance, as to
which there has been a prior legislative or executive determination to
which deference must be paid. It has likewise been employed loosely to
characterize a suit where the party proceeded against is the President or
Congress, or any branch thereof. If to be delimited with accuracy, "political
questions" should refer to such as would under the Constitution be
decided by the people in their sovereign capacity or in regard to full
discretionary authority is vested either in the President or Congress. It is
thus beyond the competence of the judiciary to pass upon. Unless clearly
falling within the formulation, the decision reached by the political
branches whether in the form of a congressional act or an executive order
could be tested in court. Where private rights are affected, the judiciary
has no choice but to look into its validity. It is not to be lost sight of that
such a power comes into play if there be an appropriate proceeding that
may be filed only after each coordinate branch has acted. Even when the
Presidency or Congress possesses plenary powers, its improvident exercise
or the abuse thereof, if shown, may give rise to a justiciable controversy.
For the constitutional grant of authority is usually unrestricted. There are
limits to what may be done and how it is to be accomplished. Necessarily
then, the courts in the proper exercise of judicial review could inquire into

the question of whether or not either of the two coordinate branches has
adhered to what is laid down by the Constitution. The question thus posed
is judicial rather than political." 14 The view entertained by Professor Dodd
is not too dissimilar. For him such a term "is employed to designate certain
types of functions committed to the political organs of government (the
legislative and executive departments, or either of them) and not subject
to judicial investigation." 15 After a thorough study of American judicial
decisions, both federal and state, he could conclude: "The field of judicial
nonenforceability is important, but is not large when contrasted with the
whole body of written constitutional texts. The exceptions from judicial
enforceability fall primarily within the field of public or governmental
interests." 16 Nor was Professor Weston's formulation any different. As was
expressed by him: "Judicial questions, in what may be thought the more
useful sense, are those which the sovereign has set to be decided in the
courts. Political questions, similarly, are those which the sovereign has
entrusted to the so-called political departments of government or has
reserved to be settled by its own extra-governmental action." 17 What
appears undeniable then both from the standpoint of Philippine as well as
American decisions is the care and circumspection required before the
conclusion is warranted that the matter at issue is beyond judicial
cognizance, a political question being raised.
2. The submission of respondents on this subject of political question,
admittedly one of complexity and importance, deserves to be pursued
further. They would derive much aid and comfort from the writings of both
Professor Bickel 18 of Yale and Professor Freund 19 of Harvard, both of
whom in turn are unabashed admirers of Justice Brandeis. Whatever be the
merit inherent in their lack of enthusiasm for a more active and positive
role that must be played by the United States Supreme Court in
constitutional litigation, it must be judged in the light of our own history. It
cannot be denied that from the well nigh four decades of constitutionalism
in the Philippines, even discounting an almost similar period of time dating
from the inception of American sovereignty, there has sprung a tradition of
what has been aptly termed as judicial activism. Such an approach could be
traced to the valedictory address before the 1935 Constitutional
Convention of Claro M. Recto. He spoke of the trust reposed in the
judiciary in these words: "It is one of the paradoxes of democracy that the
people at times place more confidence in instrumentalities of the State
other than those directly chosen by them for the exercise of their
sovereignty." 20 It would thus appear that even then this Court was
expected not to assume an attitude of timidity and hesitancy when a
constitutional question is posed. There was the assumption of course that
it would face up to such a task, without regard to political considerations
and with no thought except that of discharging its trust. Witness these
words Justice Laurel in an early landmark case, People v. Vera, 21 decided in
1937: "If it is ever necessary for us to make vehement affirmance during
this formative period of political history, it is that we are independent of
the Executive no less than of the Legislative department of our government
— independent in the performance of our functions, undeterred by any
consideration, free from politics, indifferent to popularity, and unafraid of
criticism in the accomplishment of our sworn duty as we see it and as we
understand it." 22 The hope of course was that such assertion of
independence impartiality was not mere rhetoric. That is a matter more
appropriately left to others to determine. It suffices to stake that what
elicits approval on the part of our people of a judiciary ever alert to inquire
into alleged breaches of the fundamental law is the realization that to do
so is merely to do what is expected of it and that thereby there is no
invasion of spheres appropriately belonging to the political branches. For it
needs to be kept in kind always that it can act only when there is a suit with
proper parties before it, wherein rights appropriate for judicial
enforcement are sought to be vindicated. Then, too, it does not approach
constitutional questions with dogmatism or apodictic certainty nor view
them from the shining cliffs of perfection. This is not to say though that it is
satisfied with an empiricism untroubled by the search for jural consistency
and rational coherence. A balance has to be struck. So juridical realism
requires. Once allowance made that for all its care and circumspection this
Court manned by human beings fettered by fallibility, nonetheless
earnestly and sincerely striving to do right, the public acceptance of its
vigorous pursuit of the task of assuring that the Constitution be obeyed is
easy to understand. It has not in the past shirked its responsibility to
ascertain whether there has been compliance with and fidelity to
constitutional requirements. Such is the teaching of a host of cases
from Angara v. Electoral
Commission 23 to Planas v. Commission on Elections. 24 It should continue to
exercise its jurisdiction, even in the face of a plausible but not sufficiently
persuasive insistence that the matter before it is political.
Nor am I persuaded that the reading of the current drift in American legal
scholarship by the Solicitor-General and his equally able associates
presents the whole picture. On the question of judicial review, it is not a
case of black and white; there are shaded areas. It goes too far, in my view,
if the perspective is one of dissatisfaction, with its overtones of distrust.
This expression of disapproval has not escaped Dean Rostow of Yale, who
began one of his most celebrated legal essays. The Democratic Character of
Judicial Review, thus: "A theme of uneasiness, and even of guilt, colors the
literature about judicial review. Many of those who have talked, lectured,
and written about the Constitution have been troubled by a sense that
judicial review is undemocratic." 25 He went on to state: "Judicial review,
they have urged, is an undemocratic shoot on an otherwise respectable
tree. It should be cut off, or at least kept pruned and
inconspicuous." 26 His view was precisely the opposite. Thus: "The power of
constitutional review, to be exercised by some part of the government, is
implicit in the conception of a written constitution delegating limited
powers. A written constitution would promote discord rather than order in
society if there were no accepted authority to construe it, at the least in
case of conflicting action by different branches of government or of
constitutionally unauthorized governmental action against individuals. The
limitation and separation of powers, if they are to survive, require a
Page 77 of 158
procedure for independent mediation and construction to reconcile the
inevitable disputes over the boundaries of constitutional power which arise
in the process of government." 27 More than that, he took pains to
emphasize: "Whether another method of enforcing the Constitution could
have been devised, the short answer is that no such method developed.
The argument over the constitutionality of judicial review has long since
been settled by history. The power and duty of the Supreme Court to
declare statutes or executive action unconstitutional in appropriate cases is
part of the living Constitution. 'The course of constitutional history,' Mr.
Justice Frankfurter recently remarked, 'has cast responsibilities upon the
Supreme Court which it would be "stultification" for it to evade.' " 28 Nor is
it only Dean Rostow who could point Frankfurter, reputed to belong to the
same school of thought opposed to judicial activism, if not its leading
advocate during his long stay in the United States Supreme Court, as one
fully cognizant of the stigma that attaches to a tribunal which neglects to
meet the demands of judicial review. There is a statement of similar
importance from Professor Mason: "In Stein v. New
York Frankfurter remarked, somewhat self-consciously perhaps, that the
'duty of deference cannot be allowed imperceptibly to slide into
abdication.' " 29 Professor Konefsky, like Dean Rostow, could not accept
characterization of judicial review as undemocratic. Thus his study of
Holmes and Brandeis, the following appears: "When it is said that judicial
review is an undemocratic feature of our political system, it ought also to
be remembered that architects of that system did not equate
constitutional government with unbridled majority rule. Out of their
concern for political stability and security for private rights, ..., they
designed a structure whose keystone was to consist of barriers to the
untrammeled exercise of power by any group. They perceived no
contradiction between effective government and constitutional checks. To
James Madison, who may legitimately be regarded as the philosopher of
the Constitution, the scheme of mutual restraints was the best answer to
what he viewed as the chief problem in erecting a system of free
representative government: 'In framing a government which is to be
administered by men over men, the great difficulty lies in this: you must
first enable the government to control the governed; and in the next place
oblige it to control itself.' " 30
There is thus an inevitability to the flowering of judicial review. Could it be
that the tone of discontent apparent in the writings of eminent authorities
on the subject evince at the most fears that the American Supreme Court
might overstep the bounds allotted to the judiciary? It cannot be a denial
of the fitness of such competence being vested in judges and of their being
called upon to fulfill such a trust whenever appropriate to the decision of a
case before them. That is why it has been correctly maintained that
notwithstanding the absence of any explicit provision in the fundamental
law of the United States Constitution, that distinguished American
constitutional historian, Professor Corwin, could rightfully state that
judicial review "is simply incidental to the power of courts to interpret the
law, of which the Constitution is part, in connection with the decision of

31
cases." This is not to deny that there are those who would place the
blame or the credit, depending upon one's predilection, on Marshall's
epochal opinion in Marbury v. Madison. 32 Curtis belonged to that
persuasion. As he put it: "The problem was given no answer by the
Constitution. A hole was left where the Court might drive in the peg of
judicial supremacy, if it could. And that is what John Marshall did." 33 At any
rate there was something in the soil of American juristic thought resulting
in this tree of judicial power so precariously planted by Marshall striking
deep roots and showing wonderful vitality and hardiness. It now dominates
the American legal scene. Through it, Chief Justice Hughes, before
occupying that exalted position, could state in a lecture: "We are under a
Constitution, but the Constitution is what the judges say it is ... ." 34 The
above statement is more than just an aphorism that lends itself to inclusion
in judicial anthologies or bar association speeches. It could and did provoke
from Justice Jackson, an exponent of the judicial restraint school of
thought, this meaningful query: "The Constitution nowhere provides that it
shall be what the judges say it is. How, did it come about that the
statement not only could be but could become current as the most
understandable comprehensive summary of American Constitutional
law?" 35 It is no wonder that Professor Haines could pithily and succinctly
sum up the place of the highest American tribunal in the scheme of things
in this wise: "The Supreme Court of the United States has come to be
regarded as the unique feature of the American governmental
system." 36Let me not be misunderstood. There is here no attempt to close
one's eyes to a discernible tendency on the part of some distinguished
faculty minds to look askance at what for them may be inadvisable
extension of judicial authority. For such indeed is the case as reflected in
two leading cases of recent vintage, Baker v. Carr, 37 decided in 1962
and Powell v. MacCormack, 38 in 1969, both noted in the opinion of the
Chief Justice. The former disregarded the warning of Justice Frankfurter in
Colegrove v. Green 39 about the American Supreme Court declining
jurisdiction on the question of apportionment as to do so would cut very
deep into the very being of Congress." 40 For him, the judiciary "ought not
to enter this political thicket." Baker has since then been followed; it has
spawned a host of cases. 41 Powell, on the question of the power of a
legislative body to exclude from its ranks a person whose qualifications are
uncontested, for many the very staple of what is essentially political,
certainly goes even further than the authoritative Philippine decision
of Vera v. Avelino, 42 It does look then that even in the United States, the
plea for judicial self-restraint, even if given voice by those competent in the
field of constitutional law, has fallen on deaf ears. There is in the
comments of respondents an excerpt from Professor Freund quoting from
one of his essays appearing in a volume published in 1968. It is not without
interest to note that in another paper, also included therein, he was less
than assertive about the necessity for self-restraint and apparently mindful
of the claims of judicial activism. Thus: "First of all, the Court has a
responsibility to maintain the constitutional order, the distribution of
public power, and the limitations on that power." 43 As for Professor Bickel,
it has been said that as counsel for the New York Times in the famous
44
Vietnam papers case, he was less than insistent on the American
Supreme Court exercising judicial self-restraint. There are signs that the
contending forces on such question, for some an unequal contest, are now
quiescent. The fervor that characterized the expression of their respective
points of view appears to have been minimized. Not that it is to be
expected that it will entirely disappear, considering how dearly cherished
are, for each group, the convictions, prejudices one might even say,
entertained. At least what once was fitly characterized as the booming
guns of rhetoric, coming from both directions, have been muted. Of late,
scholarly disputations have been centered on the standards that should
govern the exercise of the power of judicial review. In his celebrated
Holmes lecture in 1959 at the Harvard Law School, Professor Wechsler
advocated as basis for decision what he termed neutral principles of
constitutional law. 45 It has brought forth a plethora of law review articles,
the reaction ranging from guarded conformity to caustic criticism. 46 There
was, to be sure, no clear call to a court in effect abandoning the
responsibility incumbent on it to keep governmental agencies within
constitutional channels. The matter has been put in temperate terms by
Professor Frank thus: "When allowance has been made for all factors, it
nevertheless seems to me that the doctrine of political questions ought to
be very sharply confined to where the functional reasons justify it and that
in a give involving its expansion there should be careful consideration also
of the social considerations which may militate against it. The doctrine has
a certain specious charm because of its nice intellectualism and because of
the fine deference it permits to expertise, to secret knowledge, and to the
prerogatives of others. It should not be allowed to grow as a merely
intellectual plant." 47
It is difficult for me at least, not to be swayed by appraisal, coming from
such impeccable sources of the worth and significance of judicial review in
the United States. I cannot resist the conclusion then that the views
advanced on this subject by distinguished counsel for petitioners, with
Senators Lorenzo M. Tañada and Jovito Salonga at the van, rather than the
advocacy of the Solicitor-General, possess the greater weight and carry
persuasion. So much then for the invocation of the political question
principle as a bar to the exercise of our jurisdiction.
3. That brings me to the issue of the validity of the ratification. The crucial
point that had to be met is whether Proclamation No. 1102 manifests
fidelity to the explicit terms of Article XV. There is, of course, the view not
offensive to reason that a sense of the realities should temper the rigidity
of devotion to the strict letter of the text to allow deference to its spirit to
control. With due recognition of its force in constitutional litigation, 48 if my
reading of the events and the process that led to such proclamation, so
clearly set forth in the opinion of the Chief Justice, is not inaccurate, then it
cannot be confidently asserted that there was such compliance. It would
be to rely on conjectural assumptions that did founder on the rock of the
undisputed facts. Any other conclusion would, for me, require an
Page 78 of 158
interpretation that borders on the strained. So it has to be if one does not
lose sight of how the article on amendments is phrased. A word, to
paraphrase Justice Holmes may not be a crystal, transparent and
unchanged, but it is not, to borrow from Learned Hand, that eminent jurist,
a rubber band either. It would be unwarranted in my view then to assert
that the requirements of the 1935 Constitution have been met. There are
American decisions, 49and they are not few in number, which require that
there be obedience to the literal terms of the applicable provision. It is
understandable why it should be thus. If the Constitution is the supreme
law, then its mandate must be fulfilled. No evasion is tolerated. Submission
to its commands can be shown only if each and every word is given
meaning rather than ignored or disregarded. This is not to deny that a
recognition conclusive effect attached to the electorate manifesting its will
to vote affirmatively on the amendments proposed poses an obstacle to
the judiciary being insistent on the utmost regularity. Briefly stated,
substantial compliance is enough. A great many American State decisions
may be cited in support of such a doctrine. 50
Even if the assumption be indulged in that Article XV is not phrased in
terms too clear to be misread, so that this Court is called upon to give
meaning and perspective to what could be considered words of vague
generality, pregnant with uncertainty, still whatever obscurity it possesses
is illumined when the light of the previous legislation is thrown on it. In the
first Commonwealth Act, 51 submitting to the Filipino people for approval
or disapproval certain amendments to the original ordinance appended to
the 1935 Constitution, it was made that the election for such purpose was
to "be conducted in conformity with the provisions of the Election Code
insofar as the same may be applicable." 52 Then came the statute, 53 calling
for the plebiscite on the three 1940 amendments providing for the
plebiscite on the three 1930 amendments providing for a bicameral
Congress or a Senate and a House of Representatives to take the place of a
unicameral National Assembly, 54 reducing the term of the President to
four years but allowing his re-election with the limitation that he cannot
serve more than eight consecutive years, 55 and creating an independent
Commission on Elections. 56 Again, it was expressly provided that the
election "shall be conducted in conformity with the provisions of the
Election Code in so far as the same may be applicable." 57 The approval of
the present parity amendment was by virtue of a Republic Act 58 which
specifically made applicable the then Election Code. 59 There is a similar
provision in the
legislation, 60 which in cotemplation of the 1971 Constitutional Convention,
saw to it that there be an increase in the membership of the House of
Representatives a maximum of one hundred eighty and assured the
eligibility of senators and representatives to become members of such
constituent body without forfeiting their seats, as proposed amendments
to be voted on in the 1967 elections. 61 That is the consistent course of
interpretation followed by the legislative branch. It is most persuasive, if
not controlling. The restraints thus imposed would set limits to the
Presidential action taken, even on the assumption that either as an agent

of the Constitutional Convention or under his martial law prerogatives, he
was not devoid of power to specify the mode of ratification. On two vital
points, who can vote and how they register their will, Article XV had been
given a definitive construction. That is why I fail to see sufficient
justification for this Court affixing the imprimatur of its approval on the
mode employed for the ratification of the revised Constitution as reflected
in Proclamation No. 1102.
4. Nor is the matter before us solely to be determined by the failure to
comply with the requirements of Article XV. Independently of the lack of
validity of the ratification of the new Constitution, if it be accepted by the
people, in whom sovereignty resides according to the Constitution, 62 then
this Court cannot refuse to yield assent to such a political decision of the
utmost gravity, conclusive in its effect. Such a fundamental principle is
meaningless if it does not imply, to follow Laski, that the nation as a whole
constitutes the "single center of ultimate reference," necessarily the
possessor of that "power that is able to resolve disputes by saying the last
word." 63 If the origins of the democratic polity enshrined in the 1935
Constitution with the declaration that the Philippines is a republican state
could be traced back to Athens and to Rome, it is no doubt true, as McIver
pointed out, that only with the recognition of the nation as the separate
political unit in public law is there the juridical recognition of the people
composing it "as the source of political authority." 64 From them, as Corwin
did stress, emanate "the highest possible embodiment of human
will," 65 which is supreme and must be obeyed. To avoid any confusion and
in the interest of clarity, it should be expressed in the manner ordained by
law. Even if such is not the case, however, once it is manifested, it is to be
accepted as final and authoritative. The government which is merely an
agency to register its commands has no choice but to submit. Its officials
must act accordingly. No agency is exempt such a duty, not even this Court.
In that sense, the lack of regularity in the method employed to register its
wishes is fatal in its consequences. Once the fact of acceptance by people
of a new fundamental law is made evident, the judiciary is left with no
choice but to accord it recognition. The obligation to render it obeisance
falls on the courts as well.
There are American State decisions that enunciate such a doctrine. While
certainly not controlling, they are not entirely bereft of persuasive
significance. In Miller v. Johnson, 66 decided in 1892, it was set forth in the
opinion of Chief Justice Holt that on May 3, 1890, an act was passed in
Kentucky, providing for the calling of a convention for the purpose of
framing a new constitution and the election of delegates. It provided that
before any form of constitution made by them should become operative, it
should be submitted to the vote of the state and ratified by a majority of
those voting. The constitution then in force authorized the legislature, the
preliminary steps having been taken, to call a convention "for the purpose
of readopting, amending, or changing" it contained no provision giving the
legislature the power to require a submission of its work to a vote of the
people. The convention met in September, 1890. By April, 1891, it
completed a draft of a constitution, submitted it to a popular vote, and
then adjourned until September following. When the convention
reassembled, the delegates made numerous changes in instrument. As
thus amended, it was promulgated by the convention of September 28,
1891, as the new constitution. An action was brought to challenge its
validity. It failed in the lower court. In affirming such judgment dismissing
the action, Chief Justice Holt stated: "If a set of men, not selected by the
people according to the forms of law, were to formulate an instrument and
declare it the constitution, it would undoubtedly be the duty of the courts
to declare its work a nullity. This would be revolution, and this the courts of
the existing government must resist until they are overturned by power,
and a new government established. The convention, however, was the
offspring of law. The instrument which we are asked to declare invalid as a
constitution has been made and promulgated according to the forms of
law. It is a matter of current history that both the executive and legislative
branches of the government have recognized its validity as a constitution,
and are now daily doing so. ... While the judiciary should protect the rights
of the people with great care and jealousy, because this is its duty, and also
because; in times of great popular excitement, it is usually their last resort,
yet it should at the same time be careful not to overstep the proper
bounds of its power, as being perhaps equally dangerous; and especially
where such momentous results might follow as would be likely in this
instance, if the power of the judiciary permitted, and its duty requires, the
overthrow of the work of the convention." 67 In Taylor v.
Commonwealth, 68 a 1903 decision, it was contended that the Virginia
Constitution reclaimed in 1902 is invalid as it was ordained and
promulgated by the convention without being submitted for ratification or
rejection by the people. The Court rejected such a view. As stated in the
opinion of Justice Harrison: "The Constitution of 1902 was ordained and
proclaimed by a convention duly called by direct vote of the people of the
state to revise and amend the Constitution of 1869. The result of the work
of the convention has been recognized, accepted, and acted upon as the
only valid Constitution of the state by the Governor in swearing fidelity to it
and proclaiming it, as directed thereby; by the Legislature in its formal
official act adopting a joint resolution, July 15, 1902, recognizing the
Constitution ordained by the convention which assembled in the city of
Richmond on the 12th day of June, 1901, as the Constitution of Virginia; by
the individual oaths of members to support it, and by enforcing its
provisions; and the people in their primary capacity by peacefully accepting
it and acquiescing in it, by registering as voters under it to the extent of
thousands throughout the state, and by voting, under its provisions, at a
general election for their representatives in the Congress of the United
States. The Constitution having been thus acknowledged and accepted by
the office administering the government and by the people of the state,
and there being no government in existence under the Constitution of
1869 opposing or denying its validity, we have no difficulty in holding that
the Constitution in question, which went into effect at noon on the 10th
day of July, 1902, is the only rightful, valid, and existing Constitution of this
Page 79 of 158
state, and that to it all the citizens of Virginia owe their obedience and loyal
allegiance." 69
It cannot be plausibly asserted then that premises valid in law are lacking
for the claim that the revised Constitution has been accepted by the
Filipino people. What is more, so it has been argued, it is not merely a case
of its being implied. Through the Citizens Assemblies, there was a plebiscite
with the result as indicated in Proclamation No. 1102. From the standpoint
of respondents then, they could allege that there was more than just mere
acquiescence by the sovereign people. Its will was thus expressed formally
and unmistakably. It may be added that there was nothing inherently
objectionable in the informal method followed in ascertaining its
preference. Nor is the fact that Filipinos of both sexes above the age of
fifteen were given the opportunity to vote to be deplored. The greater the
base of mass participation, the more there is fealty to the democratic
concept. It does logically follow likewise that such circumstances being
conceded, then no justifiable question may be raised. This Court is to
respect what had thus received the people's sanction. That is not for me
though whole of it. Further scrutiny even then is not entirely foreclosed.
There is still an aspect that is judicial, an inquiry may be had as to whether
such indeed was the result. This is no more than what the courts do in
election cases. There are other factors to bear in mind. The fact that the
President so certified is well-nigh conclusive. There is in addition the
evidence flowing from the conditions of peace and stability. There thus
appears to be conformity to the existing order of things. The daily course of
events yields such a conclusion. What is more, the officials under the 1935
Constitution, including practically all Representatives and a majority of the
Senators, have signified their assent to it. The thought persists, however,
that as yet sufficient time has not elapsed to be really certain.
Nor is this all. There is for me an obstacle to the petitions being dismissed
for such ascertainment of popular will did take place during a period of
martial law. It would have been different had there been that freedom of
debate with the least interference, thus allowing a free market of ideas. If
it were thus, it could be truly said that there was no barrier to liberty of
choice. It would be a clear-cut decision either way. One could be certain as
to the fact of the acceptance of the new or of adherence to the old. This is
not to deny that votes are cast by individuals with their personal concerns
uppermost in mind, worried about their immediate needs and captive to
their existing moods. That is inherent in any human institution, much more
so in a democratic polity. Nor is it open to any valid objection because in
the final analysis the state exists for the individuals who in their collectivity
compose it. Whatever be their views, they are entitled to respect. It is
difficult for me, however, at this stage to feel secure in the conviction that
they did utilize the occasion afforded to give expression to what was really
in their hearts. This is not to imply that such doubt could not be dispelled
by evidence to the contrary. If the petitions be dismissed however, then
such opportunity is forever lost.

5. With the foregoing legal principles in mind, I find myself unable to join
the ranks of my esteemed brethren who vote for the dismissal of these
petitions. I cannot yield an affirmative response to the plea of respondents
to consider the matter closed, the proceedings terminated once and for all.
It is not an easy decision to reach. It has occasioned deep thought and
considerable soul-searching. For there are countervailing considerations
that exert a compulsion not easy to resist. It can be asserted with truth,
especially in the field of social and economic rights, that with the revised
Constitution, there is an auspicious beginning for further progress. Then
too it could resolve what appeared to be the deepening contradictions of
political life, reducing at times governmental authority to near impotence
and imparting a sense of disillusionment in democratic processes. It is not
too much to say therefore that there had indeed been the revision of a
fundamental law to vitalize the very values out of which democracy grows.
It is one which has all the earmarks of being responsive to the dominant
needs of the times. It represents an outlook cognizant of the tensions of a
turbulent era that is the present. That is why for some what was done
represented an act of courage and faith, coupled with the hope that the
solution arrived at is a harbinger of a bright and rosy future.
It is such a comfort then that even if my appraisal of the situation had
commanded a majority, there is not, while these lawsuits are being further
considered, the least interference, with the executive department. The
President in the discharge of all his functions is entitled to obedience. He
remains commander-in-chief with all the constitutional powers it implies.
Public officials can go about their accustomed tasks in accordance with the
revised Constitution. They can pursue even the tenor of their ways. They
are free to act according to its tenets. That was so these past few weeks,
even petitions were filed. There was not at any time any thought of any
restraining order. So it was before. That is how things are expected to
remain even if the motions to dismiss were not granted. It might be asked
though, suppose the petitions should prevail? What then? Even so, the
decision of this Court need not be executory right away. Such a disposition
of a case before this Court is not novel. That was how it was done in the
Emergency Powers Act controversy. 70 Once compliance is had with the
requirements of Article XV of the 1935 Constitution, to assure that the
coming force of the revised charter is free from any taint of infirmity, then
all doubts are set at rest.
For some, to so view the question before us is to be caught in a web of
unreality, to cherish illusions that cannot stand the test of actuality. What
is more, it may give the impression of reliance on what may, for the
practical man of affairs, be no more than gossamer distinctions and sterile
refinements unrelated to events. That may be so, but I find it impossible to
transcend what for me are the implications of traditional constitutionalism.
This is not to assert that an occupant of the bench is bound to apply with
undeviating rigidity doctrines which may have served their day. He could at
times even look upon them as mere scribblings in the sands to be washed
Page 80 of 158
away by the advancing tides of the present. The introduction of novel a majority of the votes cast at an election at which the amendments
concepts may be carried only so far though. As Cardozo put the matter: are submitted to the peoplefor their ratification."1
"The judge, even when he is free, is still not wholly free. He is not to
innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of A necessary corollary issue is whether the purported ratification of the
his own ideal of beauty or of goodness. He is to draw his inspiration from proposed Constitution as signed on November 30, 1972 by the 1971
consecrated principles. He is not to yield to spasmodic sentiment, to vague Constitutional Convention may be said also to have substantially complied
and unregulated benevolence. He is to exercise a discretion informed by with its own mandate that "(T)his Constitution shall take immediately upon
tradition, methodized by analogy, disciplined by system, and subordinated its ratification by a majority of the votes cast in aplebiscite called for the
to "the primordial necessity of order in the social life." Wide enough in all purpose and except as herein provided, shall supersede the Constitution of
conscience is the field of discretion that remains." 71Moreover what made Nineteen hundred and thirty-five and all amendments thereto."2
it difficult for this Court to apply settled principles, which for me have not
lost their validity, is traceable to the fact that the revised Constitution was
Respondents contend that "(A)lthough apparently what
made to take effect immediately upon ratification. If a period of time were
is sought to be annulled is Proclamation No. 1102, what
allowed to elapse precisely to enable the judicial power to be exercised, no
petitioners really seek to invalidate is the new
complication would have arisen. Likewise, had there been only one or two
Constitution", and their actions must be
amendments, no such problem would be before us. That is why I do not
dismissed, because:
see sufficient justification for the orthodoxies of constitutional law not to
operate.
— "the Court may not inquire into the validity of
the procedure for ratification" which is "political in
Even with full realization then that the approach pursued is not all that it
character" and that "what is sought to be invalidated
ought to have been and the process of reasoning not without its
is not an act of the President but of the people;
shortcomings, the basic premises of a constitutional democracy, as I
understand them and as set forth in the preceding pages, compel me to
vote the way I did. — "(T)he fact of approval of the new Constitution by an
overwhelming majority of the votes cast as declared
and certified in Proclamation No. 1102 is conclusive on
TEEHANKEE, J., dissenting:
the courts;
The masterly opinion of the Chief Justice wherein he painstakingly deals
— "Proclamation No. 1102 was issued by the President
with the momentous issues of the cases at bar in all their complexity
in the exercise of legislative power under martial law. ...
commands my concurrence.
Alternatively, or contemporaneously, he did so as
"agent" of the Constitutional Convention;"
I would herein make an exposition of the fundamental reasons and
considerations for my stand.
— "alleged defects, such as absence of secret voting,
enfranchisement of persons less than 21 years, non
The unprecedented and precedent-setting issue submitted by petitioners supervision (by) the Comelec are matters not
for the Court's resolution is the validity and constitutionality of Presidential required by Article XV of the 1935 Constitution"; (sic)
Proclamation No. 1102 issued on January 17, 1973, certifying and
proclaiming that the Constitution proposed by the 1971 Constitutional
— "after ratification, whatever defects there might
Convention "has been ratified by an overwhelming majority of all the votes
have been in the procedure are overcome
cast by the members of all the Barangays (Citizens Assemblies) throughout
and mooted (and muted) by the fact of ratification";
the Philippines, and has thereby come into effect."
and
More specifically, the issue submitted is whether the purported ratification
— "(A)ssuming finally that Article XV of the 1935
of the proposed Constitution by means of the Citizens Assemblies has
Constitution was not strictly followed, the ratification
substantially complied with the mandate of Article XV of the existing
of the new Constitution must nonetheless be
Constitution of 1935 that duly proposed amendments thereto, in toto or
respected. For the procedure outlined in Article XV
parts thereof, "shall be valid as part of this Constitution when approved by
was not intended to be exclusive of other procedures,

especially one which contemplates popular and direct
participation of the citizenry ... ."3
To test the validity of respondents' submittal that the Court, in annulling
Proclamation No. 1102 would really be "invalidating the new Constitution",
the terms and premises of the issues have to be defined.
— Respondents themselves assert that "Proclamation
No. 1102 ... is plainly merely declaratory of the fact that
the 1973 Constitution has been ratified and has come
into force.4
— The measure of the fact of ratification is Article XV of
the 1935 Constitution. This has been consistently held
by the Court in the Gonzales:5 and Tolentino6 cases.
— In the Tolentino case, this Court emphasized "that
the provisions of Section 1 of Article XV of the
Constitution, dealing with the procedure or manner of
amending the fundamental law are binding upon the
Convention and the other departments of the
government. It must be added that ... they are no
less binding upon the people."7
— In the same Tolentino case, this Court further
proclaimed that "as long as any amendment is
formulated and submitted under the aegis of the
present Charter, any proposal for such amendment
which is not in conformity with
the letter, spirit and intent of the Charter for effecting
amendments, cannot receive the sanction of this
Court."8
— As continues to be held by a majority of this Court,
proposed amendments to the Constitution "should be
ratified in only one way, that is, in an election or
plebiscite held in accordance with law and participated
in only by qualified and duly registered voters"9 and
under the supervision of the Commission on
Elections. 10
— Hence, if the Court declares Proclamation 1102 null
and void because on its face, the purported ratification
of the proposed Constitution has not faithfully nor
substantially observed nor complied with the
mandatory requirements of Article XV of the (1935)
Constitution, it would not be "invalidating" the
proposed new Constitution but would be simply
declaring that the announced fact of ratification
thereof by means of the Citizens Assemblies
referendums does not pass the constitutional test and
that the proposed new Constitution
has not constitutionally come into existence.
— Since Proclamation 1102 is acknowledged by
respondent to be "plainly merely declaratory" of the
disputed fact of ratification, they cannot assume the
very fact to be established and beg the issue by citing
the self-same declaration as proof of the purported
ratification therein declared.
What complicates the cases at bar is the fact that the proposed 1972
Constitution was enforced as having immediately taken effect upon the
issuance on January 17, 1973 of Proclamation 1102 and the question of
whether "confusion and disorder in government affairs would (not) result"
from a judicial declaration of nullity of the purported ratification is raised
by the Solicitor-General on behalf of respondents.
A comparable precedent of great crisis proportions is found in the
Emergency Powers cases, 11 wherein the Court in its Resolution of
September 16, 1949 after judgment was initially not obtained on August
26, 1949 for lack of the required six (6) votes, finally declared in effect that
the pre-war emergency powers delegated by Congress to the President,
under Commonwealth Act 671 in pursuance of Article VI, section 26 of the
Constitution, had ceased and became inoperative at the latest in May,
1946 when Congress met in its first regular session on May 25, 1946.
Then Chief Justice Manuel V. Moran recited the great interests and
important rights that had arisen under executive orders "issued in good
faith and with the best of intentions by three successive Presidents, and
some of them may have already produced extensive effects on the life of
the nation" — in the same manner as may have arisen under the bona fide
acts of the President now in the honest belief that the 1972 Constitution
had been validly ratified by means of the Citizens Assemblies referendums
— and indicated the proper course and solution therefor, which were duly
abided by and confusion and disorder as well as harm to public interest and
innocent parties thereby avoided as follows:
Upon the other hand, while I believe that the
emergency powers had ceased in June 1945, I am not
prepared to hold that all executive orders issued
thereafter under Commonwealth Act No. 671, are per
se null and void. It must be borne in mind that these
executive orders had been issued in good faith and
with the best of intentions by three successive
Page 81 of 158
Presidents, and some of them may have already
produced extensive effects in the life of the nation. We
have, for instance, Executive Order No. 73, issued on
November 12, 1945, appropriating the sum of
P6,750,000 for public works; Executive Order No. 86,
issued on January 7, 1946, amending a previous order
regarding the organization of the Supreme Court;
Executive Order No. 89, issued on January 1, 1946,
reorganizing Courts of First Instance; Executive Order
No. 184, issued on November 19, 1948, controlling rice
and palay to combat hunger; and other executive
orders appropriating funds for other purposes. The
consequences of a blanket nullification of all these
executive orders will be unquestionably serious and
harmful. And I hold that before nullifying them, other
important circumstances should be inquired into, as for
instance, whether or not they have been ratified by
Congress expressly or impliedly, whether their
purposes have already been accomplished entirely or
partially, and in the last instance, to what extent;
acquiescence of litigants; de facto officers; acts and
contracts of parties acting in good faith; etc. It is my
opinion that each executive order must be viewed in
the light of its peculiar circumstances, and, if necessary
and possible, nullifying it, precautionary measures
should be taken to avoid harm to public interest and
innocent parties. 12
Initially, then Chief Justice Moran voted with a majority of the Court to
grant the Araneta and Guerrero petitions holding null and void the
executive orders on rentals and export control but to defer judgment on
the Rodriguez and Barredo petitions for judicial declarations of nullity of
the executive orders appropriating the 1949-1950 fiscal year budget for the
government and P6 million for the holding of the 1949 national elections.
After rehearsing, he further voted to also declare null and void the last two
executive orders appropriating funds for the 1949 budget and elections,
completing the "sufficient majority" of six against four dissenting justices
"to pronounce a valid judgment on that matter." 13
Then Chief Justice Moran, who penned the Court's majority resolution,
explained his vote for annulment despite the great difficulties and possible
"harmful consequences" in the following passage, which bears re-reading:
However, now that the holding of a special session of
Congress for the purpose of remedying the nullity of
the executive orders in question appears remote and
uncertain, I am compelled to, and do hereby, give my
unqualified concurrence in the decision penned by Mr.

Justice Tuason declaring that these two executive
orders were issued without authority of law.
While in voting for a temporary deferment of the
judgment I was moved by the belief that positive
compliance with the Constitution by the other branches
of the Government, which is our prime concern in all
these cases, would be effected, and indefinite
deferment will produce the opposite result because it
would legitimize a prolonged or permanent evasion of
our organic law. Executive orders which are, in our
opinion, repugnant to the Constitution, would be given
permanent life, opening the way or practices which
may undermine our constitutional structure.
The harmful consequences which, as I envisioned in my
concurring opinion, would come to pass should the said
executive orders be immediately declared null and void
are still real. They have not disappeared by reason of
the fact that a special session of Congress is not now
forthcoming. However, the remedy now lies in the
hands of the Chief Executive and of Congress, for the
Constitution vests in the former the power to call a
special session should the need for one arise, and in the
latter, the power to pass a valid appropriations act.
That Congress may again fail to pass a valid
appropriations act is a remote possibility, for under the
circumstances it fully realizes its great responsibility of
saving the nation from breaking down; and
furthermore, the President in the exercise of his
constitutional powers may, if he so desires, compel
Congress to remain in special session till it approves the
legislative measures most needed by the country.
Democracy is on trial in the Philippines, and surely it
will emerge victorious as a permanent way of life in this
country, if each of the great branches of the
Government, within its own allocated sphere, complies
with its own constitutional duty, uncompromisingly and
regardless of difficulties.
Our Republic is still young, and the vital principles
underlying its organic structure should be maintained
firm and strong, hard as the best of steel, so as to
insure its growth and development along solid lines of a
stable and vigorous democracy. 14
The late Justice Pedro Tuason who penned the initial majority judgment
(declaring null and void the rental and export control executive orders)
likewise observed that "(T)he truth is that under our concept of
constitutional government, in times of extreme perils more than in normal
circumstances 'the various branches, executive, legislative, and judicial,'
given the ability to act, are called upon 'to perform the duties discharge the
responsibilities committed to respectively.' " 15
It should be duly acknowledged that the Court's task of discharging its duty
and responsibility has been considerably lightened by the President's public
manifestation of adherence to constitutional processes and of working
within the proper constitutional framework as per his press conference of
January 20,1973, wherein he stated that "(T)he Supreme Court is the final
arbiter of the Constitution. It can and will probably determine the validity
of this Constitution. I did not want to talk about this because actually there
is a case pending before the Supreme Court. But suffice it to say that I
recognize the power of the Supreme Court. With respect to appointments,
the matter falls under a general provision which authorizes the Prime
Minister to appoint additional members to the Supreme Court. Until the
matter of the new Constitution is decided, I have no intention of utilizing
that power." 16
Thus, it is that as in an analogous situation wherein the state Supreme
Court of Mississippi held that the questions of whether the submission of
the proposed constitutional amendment of the State Constitution
providing for an elective, instead of an appointive, judiciary and whether
the proposition was in fact adopted, were justifiable and not political
questions, we may echo the words therein of Chief Justice Whitfield that
"(W)e do not seek a jurisdiction not imposed upon us by the Constitution.
We could not, if we would, escape the exercise of that jurisdiction which
the Constitution has imposed upon us. In the particular instance in which
we are now acting, our duty to know what the Constitution of the state is,
and in accordance with our oaths to support and maintain it in its integrity,
imposed on us a most difficult and embarrassing duty, one which we have
not sought, but one which, like all others, must be discharged." 17
In confronting the issues at bar, then, with due regard for my colleagues'
contrary views, we are faced with the hard choice of maintaining a firm and
strict — perhaps, even rigid — stand that the Constitution is a "superior
paramount law, unchangeable by ordinary means" save in the particular
mode and manner prescribed therein by the people, who, in Cooley's
words, so "tied up (not only) the hands of their official agencies, but their
own hands as well" 18 in the exercise of their sovereign will or a liberal and
flexible stand that would consider compliance with the constitutional
article on the amending process as merely directory rather than
mandatory.
Page 82 of 158
The first choice of a strict stand, as applied to the cases at bar, signifies that
the Constitution may be amended in toto or otherwise exclusively "by
approval by a majority of the votes cast an election at which the
amendments are submitted to the people for their
ratification", 19 participated in only by qualified and
duly registered voters twenty-one years of age or over 20 and
21
duly supervised by the Commission on Elections, in accordance with the
cited mandatory constitutional requirements.
The alternative choice of a liberal stand would permit a disregard of said
requirements on the theory urged by respondents that "the procedure
outlined in Article XV was not intended to be exclusive of other procedures
especially one which contemplates popular and direct participation of the
citizenry", 22 that the constitutional age and literacy requirements and
other statutory safeguards for ascertaining the will of the majority of the
people may likewise be changed as "suggested, if not prescribed, by the
people (through the Citizens Assemblies) themselves", 23 and that the
Comelec is constitutionally "mandated to oversee ... elections (of public
officers) and not plebiscites." 24
To paraphrase U.S. Chief Justice John Marshall who first declared in the
historic 1803 case of Marbury vs. Madison25 the U.S. Supreme Court's
power of judicial review and to declare void laws repugnant to the
Constitution, there is no middle ground between these two alternatives. As
Marshall expounded it: "(T)he Constitution is either a superior paramount
law, unchangeable by ordinary means, or it is on a level with ordinary
legislative acts, and, like other acts, alterable when the legislature shall
please to alter it. If the former part of the alternative be true, then a
legislative act, contrary to the Constitution, is not law; if the latter part be
true, then written constitutions are absurd attempts on the part of a
people, to limit a power, in its own nature, illimitable."
As was to be restated by Justice Jose P. Laurel a century and a third later in
the 1936 landmark case of Angara vs. Electoral Commission, 26 "(T)he
Constitution sets forth in no uncertain language the restrictions and
limitations upon governmental powers and agencies. If these restrictions
and limitations are transcended it would be inconceivable if the
Constitution had not provided for a mechanism by which to direct the
course of government along constitutional channels, for then the
distribution of powers would be mere verbiage, the bill of rights mere
expressions of sentiment, and the principles of good government mere
political apothegms. Certainly, the limitations of good government and
restrictions embodied in our Constitution are real as they should be in any
living Constitution."
Justice Laurel pointed out that in contrast to the United States
Constitution, the Philippine Constitution as "a definition of the powers of
government" placed upon the judiciary the great burden of "determining

the nature, scope and extent of such powers" and stressed that "when the
judiciary mediates to allocate constitutional boundaries, it does not assert
any superiority over the other departments ... but only asserts the solemn
and sacred obligation entrusted to it by the Constitution to determine
conflicting claims of authority under the Constitution and to establish for
the parties in an actual controversy the rights which the instrument
secures and guarantees to them."
II
Marshall was to utter much later in the equally historic 1819 case
of McCulloch vs. Maryland 27 the "climactic phrase," 28 "we must never
forget that it is a constitution we are expounding," — termed by Justice
Frankfurter as "the single most important utterance in the literature of
constitutional law — most important because most comprehensive and
comprehending." 29 This enduring concept to my mind permeated to this
Court's exposition and rationale in the hallmark case of Tolentino, wherein
we rejected the contentions on the Convention's behalf "that the issue ... is
a political question and that the Convention being a legislative body of the
highest order is sovereign, and as such, its acts impugned by petitioner are
beyond the control of Congress and the Courts." 30
This Court therein made its unequivocal choice of strictly
requiring faithful (which really includes substantial) compliance with
the mandatory requirements of the amending process.
1. In denying reconsideration of our judgment of October 16, 1971
prohibiting the submittal in an advance election of 1971 Constitutional
Convention's Organic Resolution No. 1 proposing to amend Article V,
section 1 of the Constitution by lowering the voting age to 18 years (vice 21
years) 30a "without prejudice to other amendments that will be proposed
in the future ... on other portions of the amended section", this Court
stated that "the constitutional provision in question (as proposed) presents
no doubt which may be resolved in favor of respondents and intervenors.
We do not believe such doubt can exist only because it is urged that
the end sought to be achieved is to be desired. Paraphrasing no less than
the President of Constitutional Convention of 1934, Claro M. Recto, let
those who would put aside, invoking grounds at best controversial, any
mandate of the fundamental law purportedly in order to attain some
laudable objective bear in mind that someday somehow others with
purportedly more laudable objectives may take advantage of the
precedent and continue the destruction of the Constitution, making those
who laid down the precedent of justifying deviations from the
requirements of the Constitution the victims of their own folly." 31
2. This Court held in Tolentino that:
Page 83 of 158
... as to matters not related to its internal operation ignore and disregard such conditions because they are
and the performance of its assigned mission to propose powerful and omnipotent as their original
amendments to the Constitution, the Convention and counterparts. 32
its officers and members are all subject to all the
provisions of the existing Constitution. Now We hold 3. This Court in Tolentino likewise formally adopted the doctrine of proper
that even as to its latter task of proposing amendments submission first advanced in Gonzales vs. Comelec33, thus:
to the Constitution, it is subject to the provisions of
Section 1 of Article XV. This must be so, because it is
We are certain no one can deny that in order that a
plain to Us that the framers of the Constitution took
plebiscite for the ratification of an amendment to the
care that the process of amending the same
Constitution may be validly held, it must provide the
should not be undertaken with the
voter not only sufficient time but ample basisfor
same ease and facility in changing an ordinary
an intelligent appraisal of the nature of
legislation. Constitution making is the most valued
amendment per se as well as its relation to the other
power, second to none, of the people in a
parts of the Constitution with which it has to form a
constitutional democracy such as the one our founding
harmonious whole. In the context of the present state
fathers have chosen for this nation, and which we of
of things, where the Convention hardly started
the succeeding generations generally cherish. And
considering the merits of hundreds, if not thousands,
because the Constitution affects the lives,
proposals to amend the existing Constitution, to
fortunes,future and every other conceivable aspect of
present to people any single proposal or a few of them
the lives of all the people within the country and those
cannot comply with this requirement. We are of the
subject to its sovereignty, every degree of care is taken
opinion that the present Constitution does not
in preparing and drafting it. A constitution worthy of
contemplate in Section 1 of Article XV a plebiscite or
the people for deliberation and study. It is obvious that
"election" wherein the people are in the dark as to
correspondingly, any amendment of the Constitution is
frame of reference they can base their judgment on.
of no less importance than the whole Constitution
We reject the rationalization that the present
itself, and perforce must be conceived and prepared
Constitution is a possible frame of reference, for the
with as much care and deliberation. From the very
simple reason that intervenors themselves are stating
nature of things, the drafters of an original constitution,
the sole purpose of the proposed amendment is to
as already observed earlier, operate without any
enable the eighteen year olds to take part in the
limitations, restraints or inhibitions save those that
election for the ratification of the Constitution to be
they may impose upon themselves. This is not
drafted by the Convention. In brief, under the proposed
necessarily true of subsequent conventions called to
plebiscite, there can be, in the language of Justice
amend the original constitution. Generally, the framers
Sanchez, speaking for the six members of the Court in
of the latter see to it that their handiwork is not lightly
Gonzales, supra, 'no proper submission.' " 34
treated and as easily mutilated or changed, not only for
reasons purely personal but more importantly, because
written constitutions are supposed to be designed so as 4. Four other members of the Court 35 in a separate concurrence
to last for some time, if not for ages, or for, at least, as in Tolentino, expressed their "essential agreement" with Justice Sanchez'
long as they can be adopted to the needs and separate opinion in Gonzales on the need for "fair
exigencies of the people, hence, they must submission (and) intelligent rejection" as "minimum requirements that
be insulated against precipitate and hasty actions must be met in order that there can be a proper submission to the people
motivated by more or less passing political moods or of a proposed constitutional amendment" thus:
fancies. Thus, as a rule, the original constitutions carry
with them limitations and conditions, more or less ... amendments must be fairly laid before the people
stringent, made so by the people themselves, in regard for their blessing or spurning. The people are not to be
to the process of their amendment. And when such mere rubber stamps. They are not to vote blindly. They
limitations or conditions are so incorporated in the must be afforded ample opportunity to mull over the
original constitution, it does not lie in the delegates of original provisions, compare them with the proposed
any subsequent convention to claim that they may amendments, and try to reach a conclusion as the

dictates of their conscience suggest, free from the
incubus of extraneous or possibly insidious influences.
We believe the word "submitted" can only mean that
the government, within its maximum capabilities,
should strain every effort to inform every citizen of the
provisions to be amended, and the proposed
amendments and the meaning, nature and effects
thereof. By this, we are not to be understood as saying
that, if one citizen or 100 citizens or 1,000 citizens
cannot be reached, then there is no submission within
the meaning of the word as intended by the framers of
the Constitution. What the Constitution in effect directs
is that the government, in submitting an amendment
for ratification, should put every instrumentality or
agency within its structural framework to enlighten the
people, educate them with respect to their act of
ratification or rejection. For as we have earlier stated,
one thing is submission and another is ratification.
There must be fair submission, intelligent consent or
rejection. 36
They stressed further the need for undivided attention, sufficient
information and full debate, conformably to the intendment of Article XV,
section 1 of the Constitution, in this wise:
A number of doubts or misgivings could conceivably
and logically assail the average voter. Why should the
voting age be lowered at all, in the first place? Why
should the new voting age be precisely 18 years, and
not 19 or 20? And why not 17? Or even 16 or 15? Is the
18-year old as mature as the 21-year old, so that there
is no need of an educational qualification to entitle him
to vote? In this age of permissiveness and dissent, can
the 18-year old be relied upon to vote with
judiciousness when the 21-year old, in the past
elections, has not performed so well? If the proposed
amendment is voted down by the people, will the
Constitutional Convention insist on the said
amendment? Why is there an unseemly haste on the
part of the Constitutional Convention in having this
particular proposed amendment ratified at this
particular time? Do some of the members of the
Convention have future political plans which they want
to begin to subserve by the approval this year of this
amendment? If this amendment is approved, does it
thereby mean that the 18-year old should not also
shoulder the moral and legal responsibilities of the 21-
year old? Will he be required to compulsory military
service under the colors? Will the contractual consent
be reduced to 18 years? If I vote against the
amendment, will I not be unfair to my own child who
will be 18 years old, come 1973?
The above are just samplings from here, there and
everywhere — from a domain (of searching questions)
the bounds of which are not immediately ascertainable.
Surely, many more questions can be added to the
already long litany. And the answers cannot except as
the questions are debated fully, pondered upon
purposefully, and accorded undivided attention.
Scanning the contemporary scene, we say that the
people are not, and by election time will not
be, sufficiently informed of the meaning, nature and
effects of the proposed constitutional amendment.
They have not been afforded ample time to deliberate
thereon conscientiously. They have been and are
effectively distracted from a full and dispassionate
consideration of the merits and demerits of the
proposed amendment by their traditional pervasive
involvement in local elections and politics. They cannot
thus weigh in tranquility the need for and the wisdom
proposed
amendment. 37
5. This Court therein dismissed the plea of disregarding mandatory
requirements of the amending process "in favor of allowing the sovereign
people to express their decision on the proposed amendments" as
"anachronistic in the real constitutionalism and repugnant to the essence
of the rule of law," in the following terms:
... The preamble of the Constitution says that the
Constitution has been ordained by the 'Filipino people,
imploring the aid of Divine Providence.' Section 1 of
Article XV is nothing than a part of the Constitution
thus ordained by the people. Hence, in construing said
section, We must read it as if thepeople had said, 'This
Constitution may be amended, but it is our will that the
amendment must beproposed and submitted to Us for
ratification only in the manner herein provided.' ...
Accordingly, the real issue here cannot be whether or
not the amending process delineated by the present
Constitution may be disregarded in favor of allowing
the sovereign people to express their decision on the
proposed amendments, if only because it is evident
that the very idea of departing from the fundamental
Page 84 of 158
law is anachronistic in the realm of
constitutionalism and repugnant to the essence of the
rule of law; rather, it is whether or not the provisional
nature of the proposed amendment and the manner of
its submission to the people for ratification or
rejection conform with the mandate of the
people themselves in such regard, as expressed in, the
Constitution itself. 38
6. This Court, in not heeding the popular clamor, thus stated its position:
"(I)t would be tragic and contrary to the plain compulsion of these
perspectives, if the Court were to allow itself in deciding this case to be
carried astray by considerations other than the imperatives of
the rule of law and of the applicable provisions of the Constitution.
Needless to say, in a larger measure than when it binds other departments
of the government or any other official or entity, the Constitution imposes
upon the Court the sacred duty to give meaning and vigor to the
Constitution, by interpreting and construing its provisions in appropriate
cases with the proper parties and by striking down any act violative
thereof. Here, as in all other cases, We are resolved
to discharge that duty. 39
7. The Chief Justice, in his separate opinion in Tolentino concurring with
this Court's denial of the motion for reconsideration, succinctly restated
this Court's position on the fundamentals, as follows:
— On the premature submission of a partial
amendment proposal, with a "temporary provisional or
tentative character": — "... a partial amendment would
deprive the voters of the context which is usually
necessary for them to make a reasonably intelligent
appraisal of the issue submitted for their ratification or
rejection. ... Then, too, the submission to a plebiscite of
a partial amendment, without a definite frame of
reference, is fraught with possibilities which may
jeopardize the social fabric. For one thing, it opens the
door to wild speculations. It offers ample opportunities
for overzealous leaders and members of opposing
political camps to unduly exaggerate the pros and cons
of the partial amendment proposed. In short, it is apt
to breed false hopes and create wrong impressions. As
a consequence, it is bound to unduly strain the people's
faith in the soundness and validity of democratic
processes and institutions.
— On the plea to allow submission to the sovereign
people of the "fragmentary and incomplete" proposal,
although inconsistent with the letter and spirit of the

Constitution: "The view, has, also, advanced that the
foregoing considerations are not decisive on the issue
before Us, inasmuch as thepeople are sovereign, and
the partial amendment involved in this case is being
submitted to them. The issue before Us is whether or
not said partial amendment may be validly
submitted to the people for ratification "in a plebiscite
coincide with the local elections in November 1971,"
and this particular issue will not be submitted to the
people. What is more, the Constitution does not permit
its submission to the people. The question sought to be
settled in the scheduled plebiscite is whether or not the
people are in favor of the reduction of the voting age.
— On a "political" rather than "legalistic" approach: "Is
this approach to the problem too "legalistic?" This term
has possible connotations. It may mean strict
adherence to the law, which in the case at bar is
the Supreme Law of the land. On point, suffice it to say
that, in compliance with the specific man of such
Supreme Law, the members of the Supreme Court
taken the requisite "oath to support and defend the
Constitution." ... Then, again, the term "legalistic" may
be used to suggest inversely that the somewhat
strained interpretation of the Constitution being urged
upon this Court be tolerated or, at least, overlooked,
upon the theory that the partial amendment on voting
age is badly needed and reflects the will of the people,
specially the youth. This course of action favors, in
effect, adoption of apolitical approach, inasmuch as the
advisability of the amendment and an appraisal of the
people's feeling thereon political matters. In fact, apart
from the obvious message of the mass media, and, at
times, of the pulpit, the Court has been literally
bombarded with scores of handwritten letters, almost
all of which bear the penmanship and the signature of
girls, as well as letterhead of some sectarian
educational institutions, generally stating that the
writer is 18 years of age and urging that she or he be
allowed to vote. Thus, the pressure of public opinion
has brought to bear heavily upon the Court for a
reconsideration of its decision in the case at bar.
As above stated, however, the wisdom of the
amendment and the popularity thereof are political
questions beyond our province. In fact, respondents
Tolentino, he pointed out that although "(M)ovants' submittal that "(T)he
and the intervenors originally maintained that We have
primary purpose for the submission of the proposed amendment lowering
no jurisdiction to entertain the petition herein, upon
the voting age to the plebiscite on November 8, 1971 is to enable the youth
the ground that the issue therein raised is a political
one. Aside from the absence of authority to pass upon
political question, it is obviously improper and unwise
for the bench to develop into such questions owing to
the danger of getting involved in politics, more likely of
a partisan nature, and, hence, of impairing the image
and the usefulness of courts of justice as objective and
impartial arbiters of justiciable controversies.
Then, too, the suggested course of action, if adopted,
would constitute a grievous disservice to the people
and the very Convention itself. Indeed, the latter and
the Constitution it is in the process of drafting stand
essentially for the Rule of Law. However, as the
Supreme Law of the land, a Constitution would not be
worthy of its name, and the Convention called upon to
draft it would be engaged in a futile undertaking, if we
did not exact faithful adherence to the fundamental
tenets set forth in the Constitution and compliance
with its provisions were not obligatory. If we, in effect,
approved, consented to or even overlooked a
circumvention of said tenets and provisions, because of
the good intention with which Resolution No. 1 is
animated, the Court would thereby become
the Judge of the good or bad intentions of the
Convention and thus be involved in a question
essentially political in nature.
This is confirmed by the plea made in the motions for
reconsideration in favor of the exercise of judicial
statesmanship in deciding the present case. Indeed,
"politics" is the word commonly used to epitomize
compromise, even with principles, for the sake of
political expediency or the advancement of the bid for
power of a given political party. Upon the other hand,
statesmanship is the expression usually availed of to
refer to high politics or politics on the highest level. In
any event, politics, political approach, political
expediency and statesmanship are generally
associated, and often identified, with the dictum that
"the end justifies the means." I earnestly hope that the
administration of justice in this country and the
Supreme Court, in particular, will adhere to or approve
or indorse such dictum." 40
Page 85 of 158
18 to 20 years who comprise more than three (3) million of our population
to participate in the ratification of the new Constitution in so far as "to
allow young people who would be governed by the Constitution to be
given a say on what kind of Constitution they will have" is a laudable end,
... those urging the vitality and importance of the proposed constitutional
amendment and its approval ahead of the complete and final draft of the
Constitution must seek a valid solution to achieve it in a manner sanctioned
by the amendatory process ordained by our people in the present
Constitution" 41 — so that there may be "submitted, not piece-meal, but by
way of complete and final amendments as an integrated whole (integrated
either with the subsisting Constitution or with the new proposed
Constitution)..."
9. The universal validity of the vital constitutional precepts and principles
above-enunciated can hardly be gainsaid. I fail to see the attempted
distinction of restricting their application to proposals for amendments of
particular provisions of the Constitution and not to so-called entirely new
Constitutions. Amendments to an existing Constitution presumably may be
only of certain parts or in toto, and in the latter case would rise to an
entirely new Constitution. Where this Court held in Tolentino that
"any amendment of the Constitution is of no less importance than the
whole Constitution itself and perforce must be conceived and prepared
with as much care and deliberation", it would appeal that the reverse
would equally be true; which is to say, that the adoption of a whole new
Constitution would be of no less importance than any particular
amendment and therefore the necessary care and deliberation as well as
the mandatory restrictions and safeguards in the amending process
ordained by the people themselves so that "they (may) be insulated against
precipitate and hasty actions motivated by more or less passing political
moods or fancies" must necessarily equally apply thereto.
III
1. To restate the basic premises, the people provided in Article XV of the
Constitution for the amending process only"by approval by a majority of
the votes cast at an election at which the (duly proposed) amendments are
submitted to the people for their ratification."
The people ordained in Article V, section 1 that only those thereby
enfranchised and granted the right of suffrage may speak the "will of the
body politic", viz, qualified literate voters twenty one years of age or over
with one year's residence in the municipality where they have registered.
The people, not as yet satisfied, further provided by amendment duly
approved in 1940 in accordance with Article XV, for the creation of
an independent Commission on Elections with "exclusive charge" for the
purpose of "insuring free, orderly and honest elections" and ascertaining
the true will of the electorate — and more, as ruled by this Court

in Tolentino, in the case of proposed constitutional amendments,
insuring proper submission to the electorate of such proposals. 42
2. A Massachussets case 43 with a constitutional system and provisions
analogous to ours, best defined the uses of the term "people" as a body
politic and "people" in the political sense who are synonymous with the
qualified voters granted the right to vote by the existing Constitution and
who therefore are "the sole organs through which the will of the body
politic can be expressed."
It was pointed out therein that "(T)he word 'people' may have somewhat
varying significations dependent upon the connection in which it is used. In
some connections in the Constitution it is confined to citizens and means
the same as citizens. It excludes aliens. It includes men, women and
children. It comprehends not only the sane, competent, law-abiding and
educated, but also those who are wholly or in part dependents and charges
upon society by reason of immaturity, mental or moral deficiency or lack of
the common essentials of education. All these persons are secured
fundamental guarantees of the Constitution in life, liberty and property
and the pursuit of happiness, except as these may be limited for the
protection of society."
In the sense of "body politic (as) formed by voluntary association of
individuals" governed by a constitution and common laws in a "social
compact ... for the common good" and in another sense of "people" in a
"practical sense" for "political purposes" it was therein fittingly stated that
in this sense, "people" comprises many who, by reason of want of years, of
capacity or of the educational requirements of Article 20 of the
amendments of the Constitution, can have no voice in any government and
who yet are entitled to all the immunities and protection established by
the Constitution. 'People' in this aspect is coextensive with the body politic.
But it is obvious that 'people' cannot be used with this broad meaning of
political signification. The 'people' in this connection means that part of the
entire body of inhabitants who under the Constitution are intrusted with
the exercise of the sovereign power and the conduct of government.
The 'people' in the Constitution in a practical sense means those who under
the existing Constitution possess the right to exercise the elective franchise
and who, while that instrument remains in force unchanged, will be
the sole organs through which the will of the body politic can be expressed.
'People' for political purposes must be
considered synonymous with qualified voters.' "
As was also ruled by the U.S. Supreme Court, "... While the people are thus
the source of political power, their governments, national and state, have
been limited by constitutions, and they have themselves thereby set
bounds to their own power, as against the sudden impulse of mere
majorities." 44
From the text of Article XV of our Constitution, requiring approval of
amendment proposals "by a majority of the votes cast at an election at
which the amendments are submitted to the people for their ratification",
it seems obvious as above-stated that "people" as therein used must be
considered synonymous with "qualified voters" as enfranchised under
Article V, section 1 of the Constitution — since only "people" who are
qualified voters can exercise the right of suffrage and cast their votes.
3. Sound constitutional policy and the sheer necessity of adequate
safeguards as ordained by the Constitution and implementing statutes to
ascertain and record the will of the people in free, orderly and honest
elections supervised by the Comelec make it imperative that there be strict
adherence to the constitutional requirements laid down for the process of
amending in toto or in part the supreme law of the land.
Even at barrio level 45 the Revised Barrio Charter fixes certain safeguards
for the holding of barrio plebiscites thus: "SEC. 6. Plebiscite. — A plebiscite
may be held in the barrio when authorized by a majority vote of the
members present in the barrio assembly, there being a quorum, or when
called by at least four members of the barrio council: Provided, however,
That no plebiscite shall be held until after thirty days from its approval by
either body, and such plebiscite has been given the widest publicity in the
barrio, stating the date, time and place thereof, the questions or issues to
be decided, action to be taken by the voters, and such other information
relevant to the holding of the plebiscite." 46
As to voting at such barrio plebiscites, the Charter further requires that
"(A)ll duly registered barrio assembly members qualified to vote may vote
in the plebiscite. Voting procedures may be made either in writing as in
regular elections, and/or declaration by the voters to the board of election
tellers." 47
The subjects of the barrio plebiscites are likewise delimited thus: "A
plebiscite may be called to decide on the recall of any member of the
barrio council. A plebiscite shall be called to approve any budgetary,
supplemental appropriations or special tax ordinances" and the required
majority vote is specified: "(F)or taking action on any of the above
enumerated measures, majority vote of all the barrio assembly
members registered in the list of the barrio secretary is necessary." 48
The qualifications for voters in such barrio plebiscites and elections of
barrio officials 49 comply with the suffrage qualifications of Article V,
section 1 of the Constitution and provide that "(S)EC. 10. Qualifications of
Voters and Candidates. — Every citizen of the Philippines, twenty one
years of age or over, able to read and write, who has been a resident of the
barrio during the six months immediately preceding the election, duly
registered in the list of voters by the barrio secretary, who is not otherwise
disqualified, may vote or be a candidate in the barrio elections." 50
Page 86 of 158
IV
1. Since it appears on the face of Proclamation 1102 that the mandatory
requirements under the above-cited constitutional articles have not been
complied with and that no election or plebiscite for ratification as therein
provided as well as in section 16 of Article XVII of the proposed
Constitution itself 51 has been called or held, there cannot be said to have
been a valid ratification.
2. Petitioners raised serious questions as to the veracity and genuineness
of the reports or certificates of results purportedly showing unaccountable
discrepancies in seven figures in just five provinces 52 between the reports
as certified by the Department of Local Governments and the reports as
directly submitted by the provincial and city executives, which latter
reports respondents disclaimed inter alia as not final and complete or as
not signed; 53whether the reported votes of approval of the proposed
Constitution conditioned upon the non-convening of the interim National
Assembly provided in Article XVII, section 1 thereof, 54 may be considered
as valid; the allegedly huge and uniform votes reported; and many others.
3. These questions only serve to justify and show the basic validity of the
universal principle governing written constitutions that proposed
amendments thereto or in replacement thereof may be ratified only in the
particular mode or manner prescribed therein by the people. Under Article
XV, section 1 of our Constitution, amendments thereto may be ratified only
in the one way therein provided, i.e. in an election or plebiscite held in
accordance with law and duly supervised by the Commission on Elections,
and which is participated in only by qualified and duly registered voters. In
this manner, the safeguards provided by the election code generally assure
the true ascertainment of the results of the vote and interested parties
would have an opportunity to thresh out properly before the Comelec all
such questions in pre-proclamation proceedings.
4. At any rate, unless respondents seriously intend to question the very
statements and pronouncements in Proclamation 1102 itself which shows
on its face, as already stated, that the mandatory amending process
required by the (1935) Constitution was not observed, the cases at bar
need not reach the stage of answering the host of questions, raised by
petitioners against the procedure observed by the Citizens Assemblies and
the reported referendum results — since the purported ratification is
rendered nugatory by virtue of such non-observance.
5. Finally, as to respondents' argument that the President issued
Proclamation 1102 "as "agent" of the Constitutional Convention" 55 under
Resolution No. 5844 approved on November 22, 1973, and "as agent of the
Convention the President could devise other forms of plebiscite to
determine the will of the majority vis-a-vis the ratification of the proposed
Constitution." 56

The minutes of November 22, 1972, of the Convention, however, do not at
all support this contention. On the contrary, the said minutes fully show
that the Convention's proposal and "agency" was that the President issue a
decree precisely calling a plebiscite for the ratification of the proposed new
Constitution on an appropriate date, under the charge of the Comelec, and
with a reasonable period for an information campaign, as follows:
12. Upon recognition by the Chair, Delegate Duavit
moved for the approval of the resolution, the
resolution portion of which read as follows:
"RESOLVED, AS IT IS HEREBY
RESOLVED, that the 1971
Constitutional Convention propose
to President Ferdinand E. Marcos
that a decree be issued calling a
plebiscite for the ratification of the
proposed New Constitution on such
appropriate date as he shall
determine and providing for the
necessary funds therefor, and that
copies of this resolution as
approved in plenary session be
transmitted to the President of the
Philippines and the Commission on
Elections for implementation."
He suggested that in view of the expected approval of
the final draft of the new Constitution by the end of
November 1972 according to the Convention's
timetable, it would be necessary to lay the groundwork
for the appropriate agencies of the government to
undertake the necessary preparation for the plebiscite.
xxx xxx xxx
12.2 Interpellating, Delegate Pimentel (V.) contended
that the resolution was unnecessary because section
15, Article XVII on the Transitory Provision, which had
already been approved on second and third readings,
provided that the new constitution should be ratified in
a plebiscite called for the purpose by the incumbent
President. Delegate Duavit replied that the provision
referred to did not include the appropriation of funds
for the plebiscite and that, moreover, the resolution
was intended to serve formal notice to the President
and the Commission on Elections to initiate the
necessary preparations.
Page 87 of 158
xxx xxx xxx 13. Delegate Ozamiz then moved to close the debate
and proceed to the period of amendment.
12.4 Interpellating, Delegate Madarang suggested that
a reasonable period for an information campaign was 13.1 Floor Leader Montejo stated that there were no
necessary in order to properly apprise the people of the reservations to amend the resolution.
implications and significance of the new charter.
Delegate Duavit agreed, adding that this was precisely 13.2 Delegate Ozamiz then moved for the previous
why the resolution was modified to give the President question. Submitted to a vote, the motion was
the discretion to choose the most appropriate date for approved.
the plebiscite.
Upon request of the Chair, Delegate Duavit restated
12.5 Delegate Laggui asked whether a formal the resolution for voting.
communication to the President informing him of the
adoption of the new Constitution would not suffice
14.1. Delegate Ordoñez moved for nominal voting.
considering that under Section 15 of the Transitory
Submitted to a vote, the motion was lost.
Provisions, the President would be duty-bound to call a
plebiscite for its ratification. Delegate Duavit replied in
the negative, adding that the resolution was necessary 14.2. Thereupon, the Chair submitted the resolution to
to serve notice to the proper authorities to prepare a vote. It was approved by a show of hands. 57
everything necessary for the plebiscite.
I, therefore, vote to deny respondents' motion to dismiss and to give due
12.6 In reply to Delegate Britanico, Delegate Duavit course to the petitions.
stated that the mechanics for the holding of
theplebiscite would be laid down by the Commission on
Elections in coordination with the President.
12.7 Delegate Catan inquired if such mechanics for the
plebiscite could include a partial lifting of martial law in
order to allow the people to assemble peaceably to
discuss the new Constitution. Delegate Duavit
suggested that the Committee on Plebiscite and
Ratification could coordinate with the COMELEC on the
matter.
12.8 Delegate Guzman moved for the previous
question. The Chair declared that there was one more
interpellant and that a prior reservation had been
made for the presentation of such a motion.
1.8a Delegate Guzman withdrew his motion.
12.9 Delegate Astilla suggested in his interpellation that
there was actually no need for such a resolution in view
of the provision of section 15, Article XVII on the
Transitory Provisions. Delegate Duavit disagreed,
pointing out that the said provision did not provide for
the funds necessary for the purpose.

ANTONIO, J., concurring:
In conformity with my reservation, I shall discuss the grounds for my
concurrence.
I
It is my view that to preserve the independence of the State, the
maintenance of the existing constitutional order and the defense of the
political and social liberties of the people, in times of a grave emergency,
when the legislative branch of the government is unable to function or its
functioning would itself threaten the public safety, the Chief Executive may
promulgate measures legislative in character, for the successful
prosecution of such objectives. For the "President's power as Commander-
in-chief has been transformed from a simple power of military command to
a vast reservoir of indeterminate powers in time of emergency. ... In other
words, the principal canons of constitutional interpretation are ... set aside
so far as concerns both the scope of the national power and the capacity of
the President to gather unto himself all constitutionally available powers in
order the more effectively to focus them upon the task of the hour."
(Corwin, The President: Office & Powers, pp. 317, 318, [1948]).
1. The proclamation of martial rule, ushered the commencement of a crisis
government in this country. In terms of power, crisis government in a
constitutional democracy entails the concentration of governmental
power. "The more complete the separation of powers in a constitutional
system, the more difficult, and yet the more necessary" according to
Rossiter, "will be their fusion in time of crisis... The power of the state in
crisis must not only be concentrated and expanded, it must be freed from
the normal system of constitutional and legal limitations. One of the basic
features of emergency powers is the release of the government from the
paralysis of constitutional restraints" (Rossiter, Constitutional Dictatorship,
p. 290).
It is clearly recognized that in moments of peril the effective action of the
government is channeled through the person of the Chief Executive.
"Energy in the executive," according to Hamilton, "is essential to the
protection of the community against foreign attacks ... to the protection of
property against those irregular and high-handed combinations which
sometimes interrupt the ordinary course of justice; to the security of
liberty against the enterprises and assaults of ambition, of faction, and of
anarchy." (The Federalist, Number 70). "The entire strength of the nation",
said Justice Brewer in the Debs case (158 U.S. 564; 39 L. ed. 1092), "may be
used to enforce in any part of the land the full and free exercise of all
national powers and the security*of all rights entrusted by the constitution
to its care." The marshalling and employment of the "strength of the
nation" are matters for the discretion of the Chief Executive. The
President's powers in time of emergency defy precise definition since their
extent and limitations are largely dependent upon conditions and
circumstances.
2. The power of the President to act decisively in a crisis has been
grounded on the broad conferment upon the Presidency of the Executive
power, with the added specific grant of power under the "Commander-in-
Chief" clause of the constitution. The contours of such powers have been
shaped more by a long line of historical precedents of Presidential action in
times of crisis, rather than judicial interpretation. Lincoln wedded his
powers under the "commander-in-chief" clause with his duty "to take care
that the laws be faithfully executed," to justify the series of extraordinary
measures which he took — the calling of volunteers for military service, the
augmentation of the regular army and navy, the payment of two million
dollars from unappropriated funds in the Treasury to persons unauthorized
to receive it, the closing of the Post Office to "treasonable
correspondence", the blockade of southern ports, the suspension of the
writ of habeas corpus, the arrest and detention of persons "who were
represented to him" as being engaged in or contemplating "treasonable
practices" — all this for the most part without the least statutory
authorization. Those actions were justified by the imperatives of his logic,
that the President may, in an emergency thought by him to require it,
partially suspend the constitution. Thus his famous question: "Are all laws
but one to be unexecuted, and the Government itself go to pieces lest that
one be violated?" The actions of Lincoln "assert for the President",
according to Corwin, "an initiative of indefinite scope and legislative in
effect in meeting the domestic aspects of a war emergency." (Corwin, The
President: Office & Powers, p. 280 [1948]). The facts of the civil war have
shown conclusively that in meeting the domestic problems as a
consequence of a great war, an indefinite power must be attributed to the
President to take emergency measures. The concept of "emergency" under
which the Chief Executive exercised extraordinary powers underwent
correlative enlargement during the first and second World Wars. From its
narrow concept as an "emergency" in time of war during the Civil War and
World War I, the concept has been expanded in World War II to include the
"emergency" preceding the war and even after it. "The Second World War"
observed Corwin and Koenig, was the First World War writ large, and the
quasi-legislative powers of Franklin Roosevelt as "Commander-in-Chief in
wartime"... burgeoned correspondingly. The precedents were there to be
sure, most of them from the First World War, but they proliferated
amazingly. What is more, Roosevelt took his first step toward war some
fifteen months before our entrance into shooting war. This step occurred
in September, 1940, when he handed over fifty so-called overage
destroyers to Great Britain. The truth is, they were not overage, but had
been recently reconditioned and recommissioned. ... Actually, what
Page 88 of 158
President Roosevelt did was to take over for the nonce Congress's power to
dispose of property of the United States (Article IV, Section 3) and to repeal
at least two statutes." (Corwin & Koenig, The Presidency Today, New York
University Press, 1956; sf Corwin, The President: Office and Powers, 1948.)
The creation of public offices is a power confided by the constitution to
Congress. And yet President Wilson, during World War I on the basis of his
powers under the "Commander-in-Chief" clause created "offices" which
were copied in lavish scale by President Roosevelt in World War II. In April
1942, thirty-five "executive agencies" were purely of Presidential creation.
On June 7, 1941 on the basis of his powers as "Commander-in-Chief", he
issued an executive order seizing the North American Aviation plant of
Inglewood, California, where production stopped as a consequence of a
strike. This was justified by the government as the exercise of presidential
power growing out of the "duty constitutionally and inherently resting
upon the President to exert his civil and military as well as his moral
authority to keep the defense efforts of the United States a going concern"
as well as "to obtain supplies for which Congress has appropriated money,
and which it has directed the President to obtain." On a similar
justification, other plants and industries were taken over by the
government. It is true that in Youngstown Sheet & Tube vs. Sawyer (343
U.S. 579; 72 S. Ct. 863; 96 L. Ed. 1153, [1952]), the Supreme Court of the
United States did not sustain the claims that the President could, as the
Nation's Chief Executive and Commander-in-Chief of the armed forces,
validly order the seizure of most of the country's steel mills. The Court
however did not face the naked question of the President's power to seize
steel plants in the absence of any congressional enactment or expressions
of policy. The majority of the Court found that this legislative occupation of
the field made untenable the President's claim of authority to seize the
plants as an exercise of inherent executive power or as Commander-in-
Chief. Justice Clark, in his concurrence to the main opinion of the Court,
explicitly asserted that the President does possess, in the absence of
restrictive legislation, a residual or resultant power above or in
consequence of his granted powers, to deal with emergencies that he
regards as threatening the national security. The same view was shared
with vague qualification by Justices Frankfurter and Jackson, two of the
concurring Justices. The three dissenting Justices, speaking through Chief
Justice Vinson, apparently went further by quoting with approval a passage
extracted from the brief of the government in the case of United States vs.
Midwest Oil Co., (236 U.S. 459 59 L. Ed. 673, 35 S. Ct. 309) where the court
sustained the power of the President to order withdrawals from the public
domain not only without Congressional sanction but even contrary to
Congressional statutes.
It is evident therefore that the Steel Seizure Case, cannot be invoked as an
authority to support the view that the President in times of a grave crisis
does not possess a residual power above or in consequence of his granted
powers, to deal with emergencies that he regards as threatening the

national security. The lesson of the Steel Seizure case, according to Corwin
and Koenig, "Unquestionably ... tends to supplement presidential
emergency power to adopt temporary remedial legislation when Congress
has been, in the judgment of the President, unduly remiss in taking
cognizance of and acting on a given situation." (Corwin and Koenig, The
Presidency Today, New York University Press, 1956).
The accumulation of precedents has thus built up the presidential power
under emergency conditions to "dimensions of executive prerogative as
described by John Locke, of a power to wit, to fill needed gaps in the law,
or even to supersede it so far as may be requisite to realize the
fundamental law of nature and government, namely, that as much as may
be all the members of society are to be preserved." (Corwin and Koenig, The
Presidency Today).
In the light of the accumulated precedents, how could it be reasonably
argued therefore, that the President had no power to issue Presidential
Decree Nos. 86 and 86-A as well as Proclamation No. 1102, since these
measures were considered indispensable to effect the desired reforms at
the shortest time possible and hasten the restoration of normalcy? It is
unavailing for petitioners to contend that we are not faced by an actual
"shooting war" for today's concept of the emergency which justified the
exercise of those powers has of necessity been expanded to meet the
exigencies of new dangers and crisis that directly threaten the nation's
continued and constitutional existence. For as Corwin observed: "... today
the concept of 'war' as a special type of emergency warranting the
realization of constitutional limitations tends to spread, as it were, in both
directions, so that there is not only "the war before the war," but the 'war
after the war.' Indeed, in the economic crisis from which the New Deal may
be said to have issued, the nation was confronted in the opinion of the late
President with an 'emergency greater than war'; and in sustaining certain
of the New Deal measures the Court invoked the justification of
'emergency.' In the final result constitutional practices of wartime have
moulded the Constitution to greater or less extent for peacetime as well,
seem likely to do so still more pronouncedly under fresh conditions of
crisis." (Corwin, Ibid. p. 318.)
The same view was expressed by Rossiter thus:
The second crisis is rebellion, when the authority of a
constitutional government is resisted openly by large
numbers of citizens who are engaged in violent
insurrection against enforcement of its laws or are bent
on capturing it illegally or destroying it altogether. The
third crisis, one recognized particularly in modern times
as sanctioning emergency action by constitutional
governments, is economic depression. The economic
troubles which plagued all the countries of the world in
the early thirties involved governmental methods of an
unquestionably dictatorial character in many
democracies. It was thereby acknowledged that an
economic existence as a war or a rebellion. And these
are not the only cases which have justified
extraordinary governmental action in nations like the
United States. Fire, flood, drought, earthquake, riots,
great strikes have all been dealt with by unusual and of
dictatorial methods. Wars are not won by debating
societies, rebellions are not suppressed by judicial
injunctions, reemployment of twelve million jobless
citizens will not be effected through a scrupulous
regard for the tenets of free enterprise, hardships
caused by the eruptions of nature cannot be mitigated
letting nature take its course. The Civil War, the
depression of 1933 and the recent global conflict were
not and could not have been successfully resolved by
governments similar to those of James Buchanan,
William Howard Taft, or Calvin Coolidge. (Rossiter,
Constitutional Dictatorship — Crisis of Government in
the Modern Democracies, p. 6 [1948).
II
We are next confronted with the insistence of Petitioners that the
referendum in question not having been done inaccordance with the
provisions of existing election laws, which only qualified voters who are
allowed to participate, under the supervision of the Commission on
Elections, the new Constitution, should therefore be a nullity. Such an
argument is predicated upon an assumption, that Article XV of the 1935
Constitution provides the method for the revision of the constitution, and
automatically apply in the final approval of such proposed new
Constitution the provisions of the election law and those of Article V and X
of the old Constitution. We search in vain for any provision in the old
charter specifically providing for such procedure in the case of a
total revision or a rewriting of the whole constitution.
1. There is clearly a distinction between revision and amendment of an
existing constitution. Revision may involve a rewriting of
the whole constitution. The act of amending a constitution, on the other
hand, envisages a change of only specific provisions. The intention of an act
to amend is not the change of the entire constitution but only
the improvement of specific parts of the existing constitution of the
addition of provisions deemed essential as a consequence of new
constitutions or the elimination of parts already considered obsolete or
unresponsive to the needs of the times.1 The 1973 Constitution is not a
mere amendment to the 1935 Constitution. It is a completely new
Page 89 of 158
fundamental charter embodying new political, social and economic
concepts.
According to an eminent authority on Political Law, "The Constitution of
the Philippines and that of the United States expressly provide merely for
methods of amendment. They are silent on the subject of revision. But this
is not a fatal omission. There is nothing that can legally prevent a
convention from actually revising the Constitution of the Philippines or of
the United States even were such conventions called merely for the
purpose of proposing and submitting amendments to the people. For in
the final analysis, it is the approval of the people that gives validity to any
proposal of amendment or revision." (Sinco, Philippine Political Law, p. 49).
Since the 1935 Constitution does not specifically provide for the method or
procedure for the revision or for the approval of a new constitution, should
it now be held, that the people have placed such restrictions on themselves
that they are not disabled from exercising their right as the ultimate source
of political power from changing the old constitution which, in their view,
was not responsive to their needs and in adopting a new charter of
government to enable them to rid themselves from the shackles of
traditional norms and to pursue with new dynamism the realization of their
true longings and aspirations, except in the manner and form provided by
Congress for previous plebiscites? Was not the expansion of the base of
political participation, by the inclusion of the youth in the process of
ratification who after all constitute the preponderant majority more in
accord with the spirit and philosophy of the constitution that political
power is inherent in the people collectively? As clearly expounded by
Justice Makasiar, in his opinion, in all the cases cited where the Courts held
that the submission of the proposed amendment was illegal due to the
absence of substantial compliance with the procedure prescribed by the
constitution, the procedure prescribed by the state Constitution, is so
detailed, that specified the manner in which such submission shall be
made, the persons qualified to vote for the same, the date of election and
other definite standards, from which the court could safely ascertain
whether or not the submission was in accordance with the Constitution.
Thus the case of In re McConaughy (119 N.E. 408) relied upon in one of the
dissenting opinions involved in the application of the provisions of the
state Constitution of Minnesota which clearly prescribed in detail the
procedure under which the Constitution may be amended or revised. 2 This
is not true with our Constitution. In the case of revision there are no
"standards meet for judicial judgment."3
The framers of our Constitution were free to provide in the Constitution
the method or procedure for the revision or rewriting of the entire
constitution, and if such was their intention, they could and should have so
provided. Precedents were not wanting. The constitutions of the various
states of the American Union did provide for procedures for
their amendment and methods for their revision.4

Certainly We cannot, under the guise of interpretation, modify, revise,
amend, remodel or rewrite the 1935 Charter. To declare what the law is, or
has been, is a judicial power, but to declare what the law shall be is not
within Our judicial competence and authority.
Upon the other hand, since our fundamental charter has not provided the
method or procedure for the revision or complete change of the
Constitution, it is evident that the people have reserved such power in
themselves. They decided to exercise it not through their legislature, but
through a Convention expressly chosen for that purpose. The Convention
as an independent and sovereign body has drafted not an amendment but
a completely new Constitution, which decided to submit to the people for
approval, not through an act of Congress, but by means of decrees to be
promulgated by the President. In view of the inability of Congress to act, it
was within the constitutional powers of the President, either as agent of
the Constitutional Convention, or under his authority under martial law, to
promulgate the necessary measures for the ratification of the proposed
new Constitution. The adoption the new Charter was considered as a
necessary basis for all the reforms set in motion under the new society, to
root out the causes of unrest. The imperatives of the emergency
underscored the urgency of its adoption. The people in accepting such
procedure and in voting overwhelmingly for the approval of the new
Constitution have, in effect, ratified the method and procedure taken.
"When the people adopt completely revised or new constitution," said the
Court in Wheeler v. Board of Trustees (37 SE 2nd 322, 326-330), "the
framing or submission of the instrument is not what gives it binding force
and effect. The fiat of the people, and only the fiat of the people, can
breathe life into a constitution."
This has to be so because, in our political system, all political power is
inherent in the people and free governments are founded on their
authority and instituted for their benefit. Thus Section 1 of Article II of the
1935 Constitution declares that: "Sovereignty resides in the people and all
government authority emanate from them." Evidently the
term people refers to the entire citizenry and not merely to the electorate,
for the latter is only a fraction of the people and is only an organ of
government for the election of government officials.
III
The more compelling question, however is: Has this Court the authority to
nullify an entire Constitution that is already effective as it has been
accepted and acquiesced in by the people as shown by their compliance
with the decree promulgated thereunder, their cooperation in its
implementation, and is now maintained by the Government that is in
undisputed authority and dominance?
Of course it is argued that acquiescence by the people can be deduced
from their acts of conformity, because under a regime of martial law the
people are bound to obey and act in conformity with the orders of the
President, and has absolutely no other choice. The flaw of this argument
lies in its application of a mere theoretical assumption based on the
experiences of other nations on an entirely different factual setting. Such
an assumption flounders on the rock of reality. It is true that as a general
rule martial law is the use of military forces to perform the functions of civil
government. Some courts have viewed it as a military regime which can be
imposed in emergency situations. In other words, martial rule exists when
the military rises superior to the civil power in the exercise of some or all
the functions of government. Such is not the case in this country. The
government functions thru its civilian officials. The supremacy of the civil
over the military authority is manifest. Except for the imposition of curfew
hours and other restrictions required for the security of the State, the
people are free to pursue their ordinary concerns.
In short, the existing regime in this Country, does not contain the
oppressive features, generally associated with a regime of Martial law in
other countries. "Upon the other hand the masses of our people have
accepted it, because of its manifold blessings. The once downtrodden rice
tenant has at long last been emancipated — a consummation devoutly
wished by every Philippine President since the 1930's. The laborer now
holds his head high because his rights are amply protected and
respected." * A new sense of discipline has swiftly spread beyond the
corridors of government into the social order. Responding to the
challenges of the New Society, the people have turned in half a million
loose firearms, paid their taxes on undeclared goods and income in
unprecedented numbers and amount, lent their labors in massive
cooperation — in land reform, in the repair of dikes, irrigation ditches,
roads and bridges, in reforestation, in the physical transformation of the
environment to make ours a cleaner and greener land. "The entire country
is turning into one vast garden growing food for the body, for thought and
for the soul." * More important the common man has at long last been
freed from the incubus of fear.
"Martial law has paved the way for a re-ordering of the basic social
structure of the Philippines" reported Frank Valeo to the United States
Senate. "President Marcos has been prompt and sure-footed in using the
power of presidential decree under martial law for this purpose. He has
zeroed in on areas which have been widely recognized as prime sources of
the nation's difficulties — land tenancy, official corruption, tax evasion and
abuse of oligarchic economic power. Clearly he knows his targets ... there is
marked public support for his leadership..." (Bulletin Today, March 3 and 4,
1973)..
In a similar vein, C.L. Sulzberger, a foreign affairs columnist wrote, in the
April 11 issue of The New York Times:
Page 90 of 158
During his first Presidential term (1965-1969), Mr.
Marcos was discouraged by the failure of legislators to
approve urgently needed reforms. He found his second
term further frustrated by spread riots, a Maoist
uprising in Luzon and a much more serious Moslem
insurrection in the southern islands from Mindanao
across the Sulu archipelago to the frontier regions of
Malaysia and Indonesia. Manila claims this war is
Maoist-coordinated.
Mr. Marcos has now in effect taken all the reins of
power and makes no promise as to when he will
relinquish them. But, while fettering a free press,
terminating Congress and locking up some opponents
(many of whom were later amnestied), he has hauled
the Philippines out of stagnation.
Sharecropping is being ended as more than three
million acres of arable land are redistributed with state
funds. New roads have been started. The educational
system is undergoing revision, a corruption is
diminished. In non-communist Asia it is virtually
impossible to wholly end it and this disagreeable
phenomenon still reaches very high.
Mr. Marcos, an imaginative, gifted man, hopes to
reshape society by creating an agrarian middle-class to
replace the archaic sharecropper-absentee landlord
relationship. He is even pushing for a birth control
program with the tacit acceptance of the Catholic
Church. He has started labor reforms and increased
wages. (Daily Express, April 15, 1973)
As explained in this writer's opinion of April 24, 1973 on the "Constancia"
and "Manifestation" of counsel for petitioners:
The new Constitution is considered effective "if the norms created in
conformity with it are by and large applied and obeyed. As soon as the old
Constitution loses its effectiveness and the new Constitution has become
effective, the acts that appear with the subjective meaning of creating or
applying legal norms are no longer interpreted by presupposing the old
basic norm, but by presupposing the new one. The statutes issued under
the old Constitution and not taken over are no longer regarded as valid,
and the organs authorized by the old Constitution no longer competent."
(Kelsen, Pure Theory of Law, [1967].)

The essentially political nature of the question is at once made manifest by
understanding that in the final analysis, what is assailed is not merely the
validity of Proclamation No. 1102 of the President, which is merely
declaratory of the fact of approval or ratification, but the legitimacy of the
government. It is addressed more to the framework and political character
of this Government which now functions under the new Charter. It seeks to
nullify a Constitution that is already effective.
In such a situation, We do not see how the question posed by petitioners
could be judicially decided. "Judicial power presupposes an established
government capable of enacting laws and enforcing their execution, and of
appointing judges to expound and administer them. If it decides at all as a
court, it necessarily affirms the existence and authority of the government
under which it is exercising judicial power." (Luther v. Borden, 48 U.S. [7
How.] 1, 12 L. Ed. 598.)
In other words, where a complete change in the fundamental law has been
effected through political action, the Court whose existence is affected by
such change is, in the words of Mr. Melville Fuller Weston, "precluded from
passing upon the fact of change by a logical difficulty which is not to be
surmounted."5 Such change in the organic law relates to the existence of a
prior point in the Court's "chain of title" to its authority and "does not
relate merely to a question of the horizontal distribution of powers."6 It
involves in essence a matter which "the sovereign has entrusted to the so-
called political departments of government or has reserved to be settled by
its own extra governmental action."7
The non-judicial character of such a question has been recognized in
American law. "From its earliest opinions this Court has consistently
recognized," said Justice Frankfurter, in his illuminating dissent in Baker v.
Carr, 369 U.S. 186, 7 L. Ed. 2d. 633, 722, 726, 727), "a class of controversies
which do not lend themselves to judicial standards and judicial remedies.
To classify the various instances as "political questions" is rather a form of
stating this conclusion than revealing of analysis ... The crux of the matter
is that courts are not fit instruments of decision where what is essentially
at stake is the composition of those large contests of policy traditionally
fought out in non-judicial forums, by which governments and the actions of
governments are made and unmade."
The diversity of views contained in the opinions of the members of this
Court, in the cases at bar, cannot be a case on "right" or "wrong" views of
the Constitution. It is one of attitudes and values. For there is scarcely any
principle, authority or interpretation which has not been countered by the
opposite. At bottom, it is the degree of one's faith — in the nation's
leadership and in the maturity of judgment of our people.
IN VIEW OF THE FOREGOING, the dismissal of these five
cases, and the conclusion of this Court in its judgment
of March question becomes wholly moot except for
this consideration, that, when the judges as individuals
or as a body of individuals come to decide which king or
which constitution they will support and assert to
represent, it may often be good judgment for them to
follow the lead of the men who as a practical matter
are likely to be looked to by the people as more
representative of themselves and conversely are likely
to be more directly in touch with popular sentiment. If,
however, the judges hold too strong views of their own
to be able to take this course, they may follow their
own leads at their own hazard. No question of law is
involved. (Political Questions, 38 Harvard Law Review
[1924-25], pp. 305-309.)
31, 1973 are fully justified.
Barredo, Makasiar and Esguerra, JJ., concur.
APPENDIX TO OPINION
(G.R. Nos. L-36142, 36164, 36165, 36236 & 36283)
PROVISIONS OF STATE CONSTITUTIONS SPECIFICALLY
PROVIDING FOR AMENDMENT AND REVISION @
1. Alaska (1959) — Art. XIII. Amendment and Revision.
Sec. 1. Amendments. Amendments to this constitution may be proposed by
a two-thirds vote of each house of the legislature. The secretary of state
shall prepare a ballot title and proposition summarizing each proposed
amendment, and shall place them on the ballot for the next statewide
election. If a majority of the votes cast on the proposition favor
the amendment, it becomes effective thirty days after the certification of
the election returns by the secretary of state.
Sec. 2. Convention. The legislature may call constitutional conventions at
any time.
Sec. 3. Call by referendum. If during any ten-year period a constitutional
convention has not been held, the secretary of state shall place on the
ballot for the next general election the question: "Shall there be a
Constitutional Convention?" If a majority of the votes cast on the question
are in the negative, the question need not be placed on the ballot until the
end of the next ten-year period. If a majority of the votes cast on the
question are in the affirmative, delegates to the convention shall be chosen
at the next regular statewide election, unless the legislature provides for
Page 91 of 158
the election of the election delegates at a special election. The secretary of
state shall issue the call for the convention. Unless other provisions have
been made by law, the call shall conform as nearly as possible to the act
calling the Alaska Constitutional Convention of 1955, including, but not
limited to, number of members, districts, election and certification of
delegates, and submission and ratification of revisions and ordinances. ... .
Sec. 4. Powers. Constitutional conventions shall have plenary power to
amend or revise the constitution, subject only to ratification by the people.
No call for a constitutional convention shall limit these powers of the
convention.
2. California (1879) — Art. XVIII. Amending and Revising the Constitution.
Sec. 1. Constitutional amendments. Any amendment or amendments to
this Constitution may be proposed in the Senate or Assembly, and if two-
thirds of all the members elected to each of the houses shall vote in favor
thereof, such proposed amendment or amendments shall be entered in
their Journals, with the yeas and nays taken thereon; and it shall be the
duty of the Legislature to submit such proposed amendment or
amendments to the people in such manner, and at such time, and after
such publication as may be deemed expedient. Should more amendments
than one be submitted at the same election they shall be so prepared and
distinguished, by numbers or otherwise, that each can be voted on
separately. If the people shall approve and ratify such amendment or
amendments, or any of them, by a majority of the qualified electors voting
thereon such amendment or amendments shall become a part of this
constitution.
Sec. 2. Constitutional convention. Whenever two-thirds of the members
elected to each branch of the Legislature shall deem it necessary to revise
this Constitution, they shall recommend to the electors to vote at the next
general for or against a Convention for that purpose, and if a majority of
the electors voting at such election on the proposition for a Convention
shall vote in favor thereof, the Legislature shall, at its next session, provide
by law for calling the same. The Convention shall consist of a number of
delegates not to exceed that of both branches of the Legislature, who shall
be chosen in the same manner, and have the same qualifications, as
Members of the Legislature. The delegates so elected shall meet within
three months after their election at such place as the Legislature may
direct. At a special election to be provided for by law, the Constitution that
may be agreed upon by such Convention shall be submitted to the people
for their ratification or rejection, in such manner as the Convention may
determine. The returns of such election shall, in such manner as the
Convention shall direct, be certified to the Executive of the State, who shall
call to his assistance the Controller, Treasurer, and Secretary of State, and
compare the returns so certified to him; and it shall be the duty of the
Executive to declare, by his proclamation, such Constitution, as may have

been ratified by a majority of all the votes cast at such special election, to
be the Constitution of the State of California.
3. Colorado (1876) — Art. XIX. Amendments.
Sec. 1. Constitutional convention; how called. The general assembly may at
any time be a vote of two-thirds of the members elected to each house,
recommend to the electors of the state, to vote at the next general
election for or against a convention to revise, alter and amend this
constitution; and if a majority of those voting on the question shall declare
in favor of such convention, the general assembly shall, at the next session,
provide for the calling thereof. The number of members of the convention
shall be twice that of the senate and they shall be elected in the same
manner, at the same places, and in the same districts. The general
assembly shall, in the act calling the convention, designate the day, hour
and place of its meeting; fix the pay of its members and officers, and
provide for the payment of the same, together with the necessary
expenses of the convention. Before proceeding, the members shall take an
oath to support the constitution of the United States, and of the state of
Colorado, and to faithfully discharge their duties as members of the
convention. The qualifications of members shall be the same as of
members of the senate; and vacancies occurring shall be filled in the
manner provided for filling vacancies in the general assembly.
Said convention shall meet within three months after such election and
prepare such revisions, alterations or amendments to the constitution as
may be deemed necessary; which shall be submitted to the electors for
their ratification or rejection at an election appointed by the convention for
that purpose, not less than two nor more than six months after
adjournment thereof; and unless so submitted and approved by a majority
of the electors voting at the election, no such revision, alteration or
amendment shall take effect.
Sec. 2. Amendments to constitution; how adopted. Any amendment or
amendments to this constitution may be proposed in either house of the
general assembly, and if the same shall be voted for by two-thirds of all the
members elected to each house, such proposed amendment or
amendments, together with the ayes and noes of each house hereon, shall
be entered in full on their respective journals; the proposed amendment or
amendments shall be published with the laws of that session of the general
assembly, and the secretary of state shall also cause the said amendment
or amendments to be published in full in not more than one newspaper of
general circulation in each county, for four successive weeks previous to
the next general election for members of the general assembly; and at said
election the said amendment or amendments shall be submitted to
the qualified electors of the state for their approval or rejection, and such
as are approved by a majority of those voting thereon shall become part of
this constitution.
Provided, that if more than one amendment be submitted at any general
election, each of said amendments shall be voted upon separately and
votes thereon cast shall be separately counted the same as though but one
amendment was submitted. But the general assembly shall have no power
to propose amendments to more than six articles of this constitution at the
same session.
4. Delaware (1897) — Art. XVI. Amendments and Conventions.
Sec. 1. Proposal of constitutional amendments in general assembly;
procedure. Any amendment or amendments to this Constitution may be
proposed in the Senate or House of Representatives; and if the same shall
be agreed to by two-thirds of all the members elected to each House, such
proposed amendment or amendments shall be entered on their journals,
with the yeas and nays taken thereon, and the Secretary of State shall
cause such proposed amendment or amendments to be published three
months before the next general election in at least three newspapers in
each County in which such newspaper shall be published; and if in the
General Assembly next after the said election such proposed amendment
or amendments shall upon yea and nay vote be agreed to by two-thirds of
all the members elected to each House, the same shall thereupon become
part of the Constitution.
Sec. 2. Constitutional conventions; procedure; compensation of delegates;
quorum; powers and duties; vacancies. The General Assembly by a two-
thirds vote of all the members elected to each House may from time to
time provide for the submission to the qualified electors of the State at the
general election next thereafter the question, "Shall there be a Convention
to revise the Constitution and amend the same?;" and upon such
submission, if a majority of those voting on said question shall decide in
favor of a Convention for such purpose, the General Assembly at its next
session shall provide for the election of delegates to such convention at the
next general election. Such Convention shall be composed of forty-one
delegates, one of whom shall be chosen from each Representative District
by the qualified electors thereof, and two of whom shall be chosen from
New Castle County, two from Kent County and two from Sussex County by
the qualified electors thereof respectively. The delegates so chosen shall
convene at the Capital of the State on the first Tuesday in September next
after their election. Every delegate shall receive for his services such
compensation as shall be provided by law. A majority of the Convention
shall constitute a quorum for the transaction of business. The Convention
shall have the power to appoint such officers, employees and assistants as
it may be deem necessary, and fix their compensation, and provide for the
printing of its documents, journals, debates and proceedings. The
Convention shall determine the rules of its proceedings, and be the judge
of the elections, returns and qualifications of its members. Whenever there
shall be a vacancy in the office of delegate from any district or county by
reason of failure to elect, ineligibility, death, resignation or otherwise, a
Page 92 of 158
writ of election to fill such vacancy shall be issued by the Governor, and
such vacancy shall be filled by the qualified electors of such district or
county.
5. Florida (1887) — Art. XVII. Amendments.
Sec. 1. Method of amending constitution. Either branch of the Legislature,
at any regular session, or at any special or extra-ordinary session thereof
called for such purpose either in the governor's original call or any
amendment thereof, may propose the revision or amendment of any
portion or portions of this Constitution. Any such revision or amendment
may relate to one subject or any number of subjects, but no amendment
shall consist of more than one revised article of the Constitution.
If the proposed revision or amendment is agreed to by three-fifths of the
members elected to each house, it shall be entered upon their respective
journals with the yeas and nays and published in one newspaper in each
county where a newspaper is published for two times, one publication to
be made not earlier than ten weeks and the other not later than six weeks,
immediately preceding the election at which the same is to be voted upon,
and thereupon submitted to the electors of the State for approval or
rejection at the next general election, provided, however, that
such revision or amendment may be submitted for approval or rejection in
a special election under the conditions described in and in the manner
provided by Section 3 of Article XVII of the Constitution. If a majority of the
electors voting upon the amendment adopt such amendment the same
shall become a part of this Constitution.
Sec. 2. Method of revising constitution. If at any time the Legislature, by a
vote of two-thirds of all the members of both Houses, shall determine that
a revision of this Constitution is necessary, such determination shall be
entered upon their respective Journals, with yea's and nay's thereon.
Notice of said action shall be published weekly in one newspaper in every
county in which a newspaper is published, for three months preceding the
next general election of Representatives, and in those countries where no
newspaper is published, notice shall be given by posting at the several
polling precincts in such counties for six weeks next preceding said
election. The electors at said election may vote for or against the revision
in question. If a majority of the electors so voting be in favor of revision,
the Legislature chosen at such election shall provide by law for a
Convention to revise the Constitution, said Convention to be held within six
months after the passage of such law. The Convention shall consist of a
number equal to the membership of the House of Representatives, and
shall be apportioned among the several counties in the same manner as
members of said House.
6. Idaho (1890) — Art. XIX. Amendments.

Sec. 1. How amendments may be proposed. Any amendment or
amendments to this Constitution may be proposed in either branch of the
legislature, and if the same shall be agreed to by two-thirds of all the
members of each of the two houses, voting separately, such proposed
amendment or amendments shall, with the yeas and nays thereon, be
entered on their journals, and it shall be the duty of the legislature to
submit such amendment or amendments to the electors of the state at the
next general election, and cause the same to be published without delay
for at least six consecutive weeks, prior to said election, in not less than
one newspaper of the general circulation published in each county; and if a
majority of the electors shall ratify the same, such amendment or
amendments shall become a part of this Constitution.
Sec. 3. Revision or amendments by convention. Whenever two-thirds of the
members elected to each branch of the legislature shall deem it necessary
to call a convention to revise or amend this Constitution, they shall
recommend to the electors to vote at the next general election, for or
against a convention, and if a majority of all the electors voting at said
election shall have voted for a convention, the legislature shall at the next
session provide by law for calling the same; and such convention shall
consist of a number of members, not less than double the number of the
most numerous branch of the legislature.
7. Iowa (1857) — Art. X. Amendments to the Constitution.
Sec. 3. Convention. At the general election to be held in the year one
thousand eight hundred and seventy, and in each tenth year thereafter,
and also at such times as the General Assembly may, by law, provide, the
question, "Shall there be a Convention to revise the Constitution,
and amend the same?" shall be decided by the electors qualified to vote
for members of the General Assembly; and in case a majority of the
electors so qualified, voting at such election, for and against such
proposition, shall decide in favor of a Convention for such purpose, the
General Assembly, at its next session, shall provide by law for the election
of delegates to such Convention.
8. Michigan (1909) — Art. XVII. Amendments and Revision.
Sec. 1. Amendments to constitution; proposal by legislature; submission to
electors. Any amendment or amendments to this constitution may be
proposed in the senate or house of representatives. If the same shall be
agreed to by 2/3 of the members elected to each house,
such amendment or amendments shall be entered on the journals,
respectively, with the yeas and nays taken thereon; and the same shall be
submitted to the electors at the next spring or autumn election thereafter,
as the legislature shall direct; and, if a majority of the electors qualified to
vote for members of the legislature voting thereon shall ratify and approve
such amendment or amendments, the same shall become part of the
constitution.
Sec. 4. General revision; convention; procedure. At the Biennial Spring
Election to be held in the year 1961, in each sixteenth year thereafter and
at such times as may be provided by law, the question of a General
Revision of the Constitution shall be submitted to the Electors qualified to
vote for members of the Legislature. In case a majority of the Electors
voting on the question shall decide in favor of a Convention for such
purpose, at an Election to be held not later than four months after the
Proposal shall have been certified as approved, the Electors of each House
of Representatives District as then organized shall Elect One Delegate for
each Electors of each Senatorial District as then organized shall Elect One
Delegate for each State Senator to which the District is entitled. The
Delegates so elected shall convene at the Capital City on the First Tuesday
in October next succeeding such election, and shall continue their sessions
until the business of the convention shall be completed. A majority of the
delegates elected shall constitute a quorum for the transaction of business.
... No proposed constitution or amendment adopted by such convention
shall be submitted to the electors for approval as hereinafter provided
unless by the assent of a majority of all the delegates elected to the
convention, the yeas and nays being entered on the journal. Any proposed
constitution or amendments adopted by such convention shall be
submitted to the qualified electors in the manner provided by such
convention on the first Monday in April following the final adjournment of
the convention; but, in case an interval of at least 90 days shall not
intervene between such final adjournment and the date of such election.
Upon the approval of such constitution or amendments by a majority of
the qualified electors voting thereon such constitution or amendments
shall take effect on the first day of January following the approval thereof.
9. Minnesota (1857) — Art. XIV. Amendments to the Constitution.
Sec. 1. Amendments to constitution; majority vote of electors voting makes
amendment valid. Whenever a majority of both houses of the legislature
shall deem it necessary to alter or amend this Constitution, they may
proposed such alterations or amendments, which proposed amendments
shall be published with the laws which have been passed at the same
session, and said amendments shall be submitted to the people for their
approval or rejection at any general election, and if it shall appear, in a
manner to be provided by law, that a majority of all the electors voting at
said election shall have voted for and ratified such alterations or
amendments, the same shall be valid to all intents and purposes as a part
of this Constitution. If two or more alterations or amendments shall be
submitted at the same time, it shall be so regulated that the voters shall
vote for or against each separately.
Page 93 of 158
Sec. 2. Revision of constitution. Whenever two-thirds of the members
elected to each branch of the legislature shall think it necessary to call a
convention to revise this Constitution, they shall recommend to the
electors to vote at the next general election for members of the legislature,
for or against a convention; and if a majority of all the electors voting at
said election shall have voted for a convention, the legislature shall, at their
next session, provide by law for calling the same. The convention shall
consist of as many members as the House of Representatives, who shall be
chosen in the same manner, and shall meet within three months after their
election for the purpose aforesaid.
Sec. 3. Submission to people of revised constitution drafted at convention.
Any convention called to revise this constitution shall submit any revision
thereof by said convention to the people of the State of Minnesota for
their approval or rejection at the next general election held not less than 90
days after the adoption of such revision, and, if it shall appear in the
manner provided by law that three-fifths of all the electors voting on the
question shall have voted for and ratified such revision, the same shall
constitute a new constitution of the State of Minnesota. Without such
submission and ratification, said revision shall be of no force or effect.
Section 9 of Article IV of the Constitution shall not apply to election to the
convention.
10. Nevada (1864) — Art. 16. Amendments.
Sec. 1. Constitutional amendments; procedure. Any amendment or
amendments to this Constitution may be proposed in the Senate or
Assembly; and if the same shall be agreed to by a Majority of all the
members elected to each of the two houses, such proposed amendment or
amendments shall be entered on their respective journals, with the Yeas
and Nays taken thereon, and referred to the Legislature then next to be
chosen, and shall be published for three months next preceding the time of
making such choice. And if in the Legislature next chosen as aforesaid, such
proposed amendment or amendments shall be agreed to by a majority of
all the members elected to each house, then it shall be the duty of the
Legislature to submit such proposed amendment or amendments to the
people, in such manner and at such time as the Legislature shall prescribe;
and if the people shall approve and ratify such amendment or amendments
by a majority of the electors qualified to vote for members of the
Legislature voting thereon, such amendment or amendments shall become
a part of the Constitution.
Sec. 2. Convention for revision of constitution; procedure. If at any time the
Legislature by a vote of two-thirds of the Members elected to each house,
shall determine that it is necessary to cause a revision of this entire
Constitution they shall recommend to the electors at the next election for
Members of the Legislature, to vote for or against a convention, and if it
shall appear that a majority of the electors voting at such election, shall

have voted in favor of calling a Convention, the Legislature shall, at its next
session provide by law for calling a Convention to be holden within six
months after the passage of such law, and such Convention shall consist of
a number of Members not less that of both branches of the legislature. In
determining what is a majority of the electors voting such election,
reference shall be had to the highest number of vote cast at such election
for the candidates of any office or on any question.
11. New Hamspire (1784) —
Art. 99. Revision of constitution provided for. It shall be the duty of the
selectmen, and assessors, of the several towns and places in this state, in
warning the first annual meetings for the choice of senators, after the
expiration of seven years from the adoption of this constitution, as
amended, to insert expressly in the warrant this purpose, among the
others for the meeting, to wit, to take the sense of the qualified voters on
the subject of a revision of the constitution; and, the meeting being warned
accordingly, and not otherwise, the moderator shall take the sense of the
qualified voters present as to the necessity of a revision; and a return of
the number of votes for and against such necessity, shall be made by the
clerk sealed up, and directed to the general court at their then next
session; and if, it shall appear to the general court by such return, that the
sense of the people of the state has taken, and that, in the opinion of the
majority of the qualified voters in the state, present and voting at said
meetings, there is a necessity for a revision of the constitution, it shall be
the duty of the general court to call a convention for that purpose,
otherwise the general court shall direct the sense of the people to be
taken, and then proceed in the manner before mentioned. The delegates
to be chosen in the same manner, and proportioned, as the
representatives to the general court; provided that no alterations shall be
made in this constitution, before the same shall be laid before the towns
and unincorporated places, and approved by two thirds of the qualified
voters present and voting on the subject.
12. Oklahoma (1907) — Art. XXIV. Constitutional Amendments.
Sec. 1. Amendments proposed by legislature; a submission to vote.
Any amendment or amendments to this Constitution may be proposed in
either branch of the Legislature, and if the same shall be agreed to by a
majority of all the members elected to each of the two houses, such
proposed amendment or amendments shall, with yeas and nays thereon,
be entered in their journals and referred by the Secretary of State to the
people for their approval or rejection, at the next regular general election,
except when the Legislature, by a two-thirds vote of each house, shall
order a special election for that purpose. If a majority of all
the electors voting at such election shall vote in favor of any amendment
thereto, it shall thereby become a part of this Constitution.
If two or more amendments are proposed they shall be submitted in such
manner that electors may vote for or against them separately.
No proposal for the amendment or alteration of this Constitution which is
submitted to the voters shall embrace more than one general subject and
the voters shall vote separately for or against each proposal submitted;
provided, however, that in the submission of proposals for
the amendment of this Constitution by articles, which embrace one general
subject, each proposed article shall be deemed a single proposals or
proposition
Sec. 2. Constitutional convention to propose amendments or new
constitution. No convention shall be called by the Legislature to
propose alterations, revisions, or amendments to this Constitution, or
to propose a new Constitution, unless the law providing for such
convention shall first be approved by the people on a referendum vote at a
regular or special election, and any amendments, alterations, revisions, or
new Constitution, proposed by such convention, shall be submitted to the
electors of the State at a general or special election and be approved by a
majority of the electors voting thereon, before the same shall become
effective Provided, That the question of such proposed convention shall be
submitted to the people at least once in every twenty years.
13. Oregon (1859) — Art. XVII. Amendments and Revisions.
Sec. 1. Method of amending constitution. Any amendment or amendments
to this Constitution may be proposed in either branch of the legislative
assembly, and if the same shall be agreed to by a majority of all the
members elected to each of the two houses, such proposed amendment or
amendments shall, with the yeas and nays thereon, be entered in their
journals and referred by the secretary of state to the people for their
approval or rejection, at the next regular election, except when the
legislative assembly shall order a special election for that purpose. If a
majority of the electors voting on any such amendment shall vote in favor
thereof, it shall thereby become a part of this Constitution. The votes for
and against such amendment, or amendments, severally, whether
proposed by the legislative assembly or by initiative petition, shall be
canvassed by the secretary of state in the presence of the governor, and if
it shall appear to the governor that the majority of the votes cast at said
election on said amendment, or amendments, severally, are cast in favor
thereof, it shall be his duty forthwith after such canvass, by his
proclamation, to declare the said amendment, or amendments, severally,
having received said majority of votes to have been adopted by the people
of Oregon as part of the Constitution thereof, and the same shall be in
effect as a part of the Constitution from the date of such proclamation.
When two or more amendments shall be submitted in the manner
aforesaid to the voters of this state at the same election, they shall be so
submitted that each amendment shall be voted on separately. No
Page 94 of 158
convention shall be called to amend or propose amendments to this
Constitution, or to propose a new Constitution, unless the law providing for
such convention shall first be approved by the people on a referendum
vote at a regular general election. This article shall not be construed to
impair the right of the people to amend this Constitution by vote upon an
initiative petition therefor.
Sec. 2. Method of revising constitution. (1) In addition to the power to
amend this Constitution granted by section 1, Article IV, and section 1 of
this Article, a revision of all or part of this Constitution may be proposed in
either house of the Legislative Assembly and, if the proposed revision is
agreed to by at least two-thirds of all the members of each house, the
proposed revision shall, with the yeas and nays thereon, be entered in their
journals and referred by the Secretary of State to the people for their
approval or rejection, notwithstanding section 1, Article IV of this
Constitution, at the next regular state-wide primary election, except when
the Legislative Assembly orders a special election for that purpose. A
proposed revision may deal with more than one subject and shall be voted
upon as one question. The votes for and against the proposed revision shall
be canvassed by the Secretary of State in the presence of the Governor
and, if it appears to the Governor that the majority of the votes cast in the
election on the proposed revision are in favor of the proposed revision, he
shall, promptly following the canvass, declare, by his proclamation, that the
proposed revision has received a majority of votes and has been adopted
by the people as the Constitution of the State of Oregon, as the case may
be. The revision shall be in effect as the Constitution or as a part of this
Constitution from the date of such proclamation.
14. Utah (1896) — Art. 23. Amendments.
Sec. 1. Amendments; method of proposal and approval. Any amendments
to his Constitution may be proposed in either house of the Legislature, and
if two-thirds of all the members elected of the two houses, shall vote in
favor thereof, such proposed amendment or amendments shall be entered
on their respective journals with the yeas and nays taken thereon; and the
Legislature shall cause the same to be published in at least one newspaper
in every county of the State, where a newspaper is published, for two
months immediately preceding the next general election, at which time the
said amendment or amendments shall be submitted to the electors of the
State, for their approval or rejection, and if a majority of the electors voting
thereon shall approve the same, such amendment or amendments shall
become part of this Constitution. If two or more amendments are
proposed, they shall be so submitted as to enable the electors to vote on
each of them separately.
Sec. 2. Revision of the Constitution by convention. Whenever two-thirds of
the members, elected to each branch of the Legislature, shall deem it
necessary to call a convention to revise or amend this Constitution, they

shall recommend to the electors to vote at the next general election, for or
against a convention, and, if a majority of all the electors, voting at such
election, shall vote for a convention. The Legislature, at its next session,
shall provide by law for calling the same. The convention shall consist of
not less than the number of members in both branches of the Legislature.
15. Wyoming (1890) — Art. XX. Amendments.
Sec. 1. Procedure for amendments. Any amendment or amendments to this
Constitution may be proposed in either branch of the legislature, and, if
the same shall be agreed to by two-thirds of all the members of the two
houses, voting separately, such proposed amendment or amendments
shall, with the yeas and nays thereon, be entered on their journals, and it
shall be the duty of the legislature to submit such amendment or
amendments to the electors of the state at the next general election, in at
least one newspaper of general circulation, published in each county, and if
a majority of the electors shall ratify the same, such amendment or
amendments shall become a part of this constitution.
Sec. 2. How voted for. If two or more amendments are proposed, they shall
be submitted in such manner that the electors shall vote for or against
each of them separately.
Sec. 3. Constitutional convention; provision for. Whenever two-thirds of the
members elected to each branch of the legislature shall deem it necessary
to call a convention to revise or amend this constitution, they shall
recommend to the electors to vote at the next general election for or
against a convention, and if a majority of all the electors voting at such
election shall have voted for a convention, the legislature shall at the next
session provide by a law for calling the same; and such convention shall
consist of a number of members, not less than double that of the most
numerous branch of the legislature.
Sec. 4. New constitution. Any constitution adopted by such convention
shall have no validity until it has been submitted to and adopted by the
people.
Separate Opinions
MAKALINTAL, J., concurring:
CASTRO, J., concurring:
The preliminary question before this Court was whether or not the
petitioners had made out a sufficient prima faciecase in their petitions to
justify their being given due course. Considering on the one hand the
urgency of the matter and on the other hand its transcendental
importance, which suggested the need for hearing the side of the
respondents before that preliminary question was resolved, We required
them to submit their comments on the petitions. After the comments were
filed We considered them as motions to dismiss so that they could be orally
argued. As it turned out, the hearing lasted five days, morning and
afternoon, and could not have been more exhaustive if the petitions had
been given due course from the beginning.
The major thrust of the petitions is that the act of the Citizens Assemblies
as certified and proclaimed by the President on January 17, 1973
(Proclamation No. 1102) was not an act of ratification, let alone a valid one,
of the proposed Constitution, because it was not in accordance with the
existing Constitution (of 1935) and the Election Code of 1971. Other
grounds are relied upon by the petitioners in support of their basic
proposition, but to our mind they are merely subordinate and peripheral.
Article XV, Section 1, of the 1935 Constitution provides that amendments
(proposed either by Congress in joint session or by a Convention called by it
for the purpose) "shall be valid part of this Constitution when approved by
a majority of votes cast at an election at which the amendments submitted
to the people for their ratification." At the time Constitution was approved
by the Constitutional Convention on February 8, 1935, and ratified in a
plebiscite held on following May 14, the word "election" had already a
definite meaning in our law and jurisprudence. It was not a vague and
amorphous concept, but a procedure prescribed by statute ascertaining
the people's choices among candidates for public offices, or their will on
important matters submitted to the pursuant to law, for approval. It was in
this sense that word was used by the framers in Article XV (also in Articles
VI and VII), and in accordance with such procedure that plebiscites were
held to ratify the very same Constitution in 1935 as well as the subsequent
amendments thereto, thus: in 1939 (Ordinance appended to the
Constitution); 1940 (establishment of a bicameral legislature; eligibility of
the President and the Vice President for re election; creation of the
Commission of Elections); 1947 (Parity Amendment); and 1967 (increase in
membership of the House of Representatives and eligibility of members of
Congress to run for the Constitutional Convention without forfeiture of
their offices).
The Election Code of 1971, in its Section 2, states that "all elections of
public officers except barrio officials andplebiscites shall be conducted in
the manner provided by this Code." This is a statutory requirement
designed, as were the other election laws previously in force, to carry out
the constitutional mandate relative to the exercise of the right suffrage,
Page 95 of 158
and with specific reference to the term "plebiscites," the provision of
Article XV regarding ratification of constitutional amendments.
The manner of conducting elections and plebiscites provided by the Code is
spelled out in other sections thereof. Section 99 requires that qualified
voters be registered in a permanent list, the qualifications being those set
forth in Article V, Section 1, of the 1935 Constitution on the basis of age
(21), literacy and residence. These qualifications are reiterated in Section
101 of the Election Code. Section 102 enumerates the classes of persons
disqualified to vote. Succeeding sections prescribe the election
paraphernalia to be used, the procedure for registering voters, the records,
of registration and the custody thereof, the description and printing of
official ballots, the actual casting of votes and their subsequent counting by
the boards of inspectors, the rules for appreciation of ballots, and then the
canvass and proclamation of the results.
With specific reference to the ratification of the 1972 draft Constitution,
several additional circumstances should be considered:
(1) This draft was prepared and approved by a Convention which had been
convened pursuant to Resolution No. 2 passed by Congress on March 16,
1967, which provides:
Sec. 7. The amendments proposed by the Convention
shall be valid and considered part of the Constitution
when approved by a majority of the votes cast in an
election at which they are submitted to the people for
their ratification pursuant to Article XV of the
Constitution.
(2) Article XVII, Section 16, of the draft itself states:
Sec. 16. This Constitution shall take effect immediately
upon its ratification by a majority of the votes cast in a
plebiscite called for the purpose and, except as herein
provided, shall supersede the Constitution of nineteen
hundred and thirty-five and all amendments thereto.
The same procedure is prescribed in Article XVI, Section 2, for the
ratification of any future amendment to or revision of the said
Constitution.
(3) After the draft Constitution was approved by the Constitutional
Convention on November 30, 1972 the said body adopted Resolution No.
5843, proposing "to President Ferdinand E. Marcos that a decree be issued
calling aplebiscite for the ratification of the proposed New Constitution on
such appropriate date as he shall determine and providing for the

necessary funds therefor." Pursuant to said Resolution the President issued
Decree No. 73 on the same day, calling a plebiscite to be held on January
15, 1973, at which the proposed Constitution "shall be submitted to the
people for ratification or rejection." The Decree had eighteen (18) sections
in all, prescribing in detail the different steps to be taken to carry out the
process of ratification, such as: (a) publication of the proposed Constitution
in English and Pilipino; (b) freedom of information and discussion; (c)
registration of voters: (d) appointment of boards of election inspectors and
designation of watchers in each precinct; (e) printing of official ballots; (f)
manner of voting to insure freedom and secrecy thereof; (g) canvass of
plebiscite returns; and (h) in general, compliance with the provisions of the
Election Code of 1971, with the Commission on Elections exercising its
constitutional and statutory powers of supervision of the entire process.
There can hardly be any doubt that in everybody's view — from the
framers of the 1935 Constitution through all the Congresses since then to
the 1971 Constitutional Convention — amendments to the Constitution
should be ratified in only one way, that is, in an election or plebiscite held
in accordance with law and participated in only by qualified and duly
registered voters. Indeed, so concerned was this Court with the importance
and indispensability of complying with the mandate of the (1935)
Constitution in this respect that in the recent case of Tolentino vs.
Commission on Elections, No. L-34150, October 16, 1971 (41 SCRA 702), a
resolution of the (1971) Constitutional Convention submitting a proposed
amendment for ratification to a plebiscite to be held in November 1971
was declared null and void. The amendment sought to reduce the voting
age from twenty-one to eighteen years and was approved by the
Convention for submission to a plebiscite ahead of and separately from
other amendments still being or to be considered by it, so as to enable the
youth to be thus enfranchised to participate in the plebiscite for the
ratification of such other amendments later. This Court held that such
separate submission was violative of Article XV, Section 1, of the
Constitution, which contemplated that "all the amendments to be
proposed by the same Convention must be submitted to the people in a
single "election" or plebiscite." * Thus a grammatical construction based on
a singular, instead of plural, rendition of the word "election" was
considered a sufficient ground to rule out the plebiscite which had been
called to ratify a proposed amendment in accordance with the procedure
and under all the safeguards provided in the Election Law.
In the cases now before Us what is at issue is not merely the ratification of
just one amendment, as in Tolentino vs. COMELEC, but the ratification of
an entire charter setting up a new form of government; and the issue has
arisen not because of a disputed construction of one word or one provision
in the 1935 Constitution but because no election or plebiscite in
accordance with that Constitution and with the Election Code of 1971 was
held for the purpose of such ratification.
Page 96 of 158
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
broaden the base of citizen participation in the democratic process and to Constitution?
afford ample opportunities for the citizenry to express their views on
important national issues." The Assemblies "shall consist of all persons who (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,
(6) Do you want martial law to continue? [Bulletin
district or ward secretary." By Presidential Decree No. 86-A, dated January
Today, January 11, 1973; emphasis supplied].
5, 1973, the Assemblies were convened for a referendum between January
10 and 15, to "consider vital national issues now confronting the country,
like the holding of the plebiscite on the new Constitution, the continuation Appended to the six additional questions above quoted were the suggested
of martial rule, the convening of Congress on January 22, 1973, and the answers, thus:
holding of elections in November 1973."
COMMENTS ON
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. 1
"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 In order to broaden the base of
announced that he had ordered the postponement of plebiscite which he citizens' participation in
had called for January 15, 1973 (Presidential Decree No. 73) for the government.
ratification of the Constitution, and that he was considering two new dates
for the purpose — February 19 or March 5; that he had ordered that the
registration of voters (pursuant to Decree No. 73) be extended to QUESTION No. 2
accommodate new voters; and that copies of the new Constitution would
be distributed in eight dialects the people. (Bulletin Today, December 24, But we do not want the Ad Interim
1972.) Assembly to be convoked. Or if it is
to be convened at all, it should not
On January 10, 1973 it was reported that one more question would be be done so until after at least seven
added to the original four which were to be submitted to the Citizens (7) years from the approval of the
Assemblies. The question concerning plebiscite was reworded as follows: New Constitution by the Citizens
"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
the plebiscite should be held, not as to whether or not it should be held at QUESTION No. 3
all.
If the Citizens Assemblies approve
The next day, January 11, it was reported that six additional questions of the New Constitution, then the
would be submitted, namely: new Constitution should be
deemed ratified.
(1) Do you approve of the citizens assemblies as the
base of popular government to decide issues of The vote of the Citizens Assemblies
national interest? should already be considered the
plebiscite on the New Constitution.
(2) Do you approve of the new Constitution?
QUESTION No. 4
(3) Do you want a plebiscite to be called to ratify the
new Constitution?

We are sick and tired of too
frequent elections. We are fed up
with politics, of so many debates
and so much expenses.
QUESTION No. 5
Probably a period of at least seven
(7) years moratorium on elections
will be enough for stability to be
established in the country, for
reforms to take root and normalcy
to return.
QUESTION No. 6
We want President Marcos to
continue with Martial Law. We
want him to exercise his powers
with more authority. We want him
to be strong and firm so that he can
accomplish all his reform program
and establish normalcy in the
country. If all other measures fail,
we want President Marcos to
declare a revolutionary government
along the lines of the new
Constitution without the ad interim
Assembly.
So it was that on January 11, 1973, the second day of the purported
referendum, the suggestion was broached, for the first time, that the
plebiscite should be done away with and a favorable vote by the
Assemblies deemed equivalent ratification. This was done, not in the
questionnaire itself, but in the suggested answer to question No. 3.
Strangely, however, it was not similarly suggested that an unfavorable vote
be considered as rejection.
There should be no serious dispute as to the fact that the manner in which
the voting was conducted in the Citizen Assemblies, assuming that such
voting was held, was not within the intendment of Article XV, Section 1, of
the 1935 Constitution nor in accordance with the Election Code of 1971.
The referendum can by no means be considered as the plebiscite
contemplated in Section 2 of said Code and in Article XVII, Section 16, of
the draft Constitution itself, or as the election intended by Congress when
it passed Resolution No. 2 on March 16, 1967 calling a Convention for the
revision of the 1935 Constitution. The Citizens Assemblies were not limited
to qualified, let alone registered voters, but included all citizens from the
age of fifteen, and regardless of whether or not they were illiterates,
feeble-minded, or ex convicts * — these being the classes of persons
expressly disqualified from voting by Section 102 of the Election Code. In
short, the constitutional and statutory qualifications were not considered
in the determination of who should participate. No official ballots were
used in the voting; it was done mostly by acclamation or open show of
hands. Secrecy, which is one of the essential features of the election
process, was not therefore observed. No set of rules for counting the votes
or of tabulating them and reporting the figures was prescribed or followed.
The Commission on Elections, which is the constitutional body charged
with the enforcement and administration of all laws relative to the conduct
of elections, took no part at all, either by way of supervision or in the
assessment of the results.
It has been suggested that since according to Proclamation No. 1102 the
overwhelming majority of all the members of the Citizens Assemblies had
voted for the adoption of the proposed Constitution there was a
substantial compliance with Article XV, Section 1, of the 1935 Constitution
and with the Election Code of 1971. The suggestion misses the point
entirely. It is of the essence of a valid exercise of the right of suffrage that
not only must a majority or plurality of the voters carry the day but that the
same must be duly ascertained in accordance with the procedure
prescribed by law. In other words the very existence of such majority or
plurality depends upon the manner of its ascertainment, and to conclude
that it exists even if it has not been ascertained according to law is simply
to beg the issue, or to assume the very fact to be established. Otherwise no
election or plebiscite could be questioned for non-compliance with the
provisions of the Election Law as long as it is certified that a majority of the
citizens had voted favorably or adversely on whatever it was that was
submitted to them to vote upon.
However, a finding that the ratification of the draft Constitution by the
Citizens Assemblies, as certified by the President in Proclamation No. 1102,
was not in accordance with the constitutional and statutory procedure laid
down for the purpose does not quite resolve the questions raised in these
cases. Such a finding, in our opinion, is on a matter which is essentially
justiciable, that is, within the power of this Court to inquire into. It imports
nothing more than a simple reading and application of the pertinent
provisions of the 1935 Constitution, of the Election Code and of other
related laws and official acts. No question of wisdom or of policy is
involved. But from this finding it does not necessarily follow that this Court
may justifiably declare that the Constitution has not become effective, and
for that reason give due course to these petitions or grant the writs herein
prayed for. The effectivity of the said Constitution, in the final analysis, is
the basic and ultimate question posed by these cases, to resolve which
considerations other than judicial, and therefore beyond the competence
of this Court, are relevant and unavoidable.
Page 97 of 158
Several theories have been advanced respectively by the parties. The
petitioners lay stress on the invalidity of the ratification process adopted by
the Citizens Assemblies and on that premise would have this Court grant
the reliefs they seek. The respondents represented by the Solicitor
General, whose theory may be taken as the official position of the
Government, challenge the jurisdiction of this Court on the ground that the
questions raised in the petitions are political and therefore non-justiciable,
and that in any case popular acquiescence in the new Constitution and the
prospect of unsettling acts done in reliance thereon should caution against
interposition of the power of judicial review. Respondents Gil J. Puyat and
Jose Roy (in L-36165), in their respective capacities as President and
President Pro Tempore of the Senate of the Philippines, and through their
counsel, Senator Arturo Tolentino, likewise invoke the political question
doctrine, but on a ground not concurred in by the Solicitor General,
namely, that approval of the 1973 Constitution by the people was made
under a revolutionary government, in the course of a successful political
revolution, which was converted by act of the people to the present de
jure government under the 1973 Constitution."
Heretofore, constitutional disputes which have come before this Court for
adjudication proceeded on the assumption, conceded by all, that the
Constitution was in full force and effect, with the power and authority of
the entire Government behind it; and the task of this Court was simply to
determine whether or not the particular act or statute that was being
challenged contravened some rule or mandate of that Constitution. The
process employed was one of interpretation and synthesis. In the cases at
bar there is no such assumption: the Constitution (1935) has been
derogated and its continued existence as well as the validity of the act of
derogation is issue. The legal problem posed by the situation is aggravated
by the fact that the political arms of the Government — the Executive
Departments and the two Houses of Congress — have accepted the new
Constitution as effective: the former by organizing themselves and
discharging their functions under it, and the latter by not convening on
January 22, 1973 or at any time thereafter, as ordained by the 1935
Constitution, and in the case of a majority of the members by expressing
their option to serve in the Interim National Assembly in accordance with
Article XVIII, Section 2, of the 1973 Constitution. *
The theory advanced by Senator Tolentino, as counsel for respondents
Puyat and Roy, may be taken up and restated at same length if only
because it would constitute, if sustained, the most convenient ground for
the invocation of the political-question doctrine. In support of his theory,
Senator Tolentino contends that after President Marcos declared martial
law on September 21, 1972 (Proclamation No. 1081) he established a
revolutionary government when he issued General Order No. 1 the next
day, wherein he proclaimed "that I shall govern the nation and direct the
operation of the entire government, including all its agencies and
instrumentalities, in my capacity, and shall exercise all the powers and

prerogatives appurtenant and incident to my position as such Commander-
in-Chief of all the Armed Forces of the Philippines." By this order, it is
pointed out, the Commander-in-Chief of the Armed Forces assumed all the
powers of government — executive, legislative, and judicial; and thereafter
proceeded to exercise such powers by a series of Orders and Decrees
which amounted to legislative enactments not justified under martial law
and, in some instances, trenched upon the domain of the judiciary, by
removing from its jurisdiction certain classes of cases, such as "those
involving the validity, legality, or constitutionality of Proclamation No.
1081, or of any decree, order or act issued, promulgated or performed by
me or by my duly designated representative pursuant thereto." (General
Order No. 3 as amended by General Order No. 3-A, dated September 24,
1972.) The ratification by the Citizens Assemblies, it is averred, was the
culminating act of the revolution, which thereupon converted the
government into a de jure one under the 1973 Constitution.
If indeed it be accepted that the Citizens Assemblies had ratified the 1973
Constitution and that such ratification as well as the establishment of the
government thereunder formed part of a revolution, albeit peaceful, then
the issue of whether or not that Constitution has become effective and, as
necessary corollary, whether or not the government legitimately functions
under it instead of under the 1935 Constitution, is political and therefore
non-judicial in nature. Under such a postulate what the people did in the
Citizen Assemblies should be taken as an exercise of the ultimate sovereign
power. If they had risen up in arms and by force deposed the then existing
government and set up a new government in its place, there could not be
the least doubt that their act would be political and not subject to judicial
review but only to the judgment of the same body politic act, in the
context just set forth, is based on realities. If a new government gains
authority and dominance through force, it can be effectively challenged
only by a stronger force; judicial dictum can prevail against it. We do not
see that situation would be any different, as far as the doctrine of judicial
review is concerned, if no force had been resorted to and the people, in
defiance of the existing Constitution but peacefully because of the absence
of any appreciable opposition, ordained a new Constitution and succeeded
in having the government operate under it. Against such a reality there can
be no adequate judicial relief; and so courts forbear to take cognizance of
the question but leave it to be decided through political means.
The logic of the political-question doctrine is illustrated in statement of the
U.S. Supreme Court in a case * relied upon, curiously enough, by the
Solicitor General, who disagrees with the revolutionary government theory
of Senator Tolentino. The case involved the issue of which of two opposing
governments struggling for supremacy in the State of Rhode Island was the
lawful one. The issue had previously come up in several other cases before
the courts of the State, which uniformly held that the inquiry belonged to
the political power and not to the judicial. Commenting on the ruling thus
arrived at, the U.S. Supreme Court said: "And if a State court should enter
upon the inquiry proposed in this case, and should come to the conclusion
that the government under which it acted had been put aside and
displaced by an opposing government, it would cease to be a court, and
incapable of pronouncing a judicial decision upon the question it
undertook to try. If it decides at all as a court, it necessarily affirms the
existence and authority of the government under which it is exercising
judicial power." In other words, since the court would have no choice but
to decide in one way alone in order to be able to decide at all, the question
could not be considered proper for judicial determination.
It should be noted that the above statement from Luther vs. Borden would
be applicable in the cases at bar only on the premise that the ratification of
the Constitution was a revolutionary act and that the government now
functioning it is the product of such revolution. However, we are not
prepared to agree that the premise is justified.
In the first, place, with specific reference to the questioned ratification,
several significant circumstances may be noted. (1) The Citizens Assemblies
were created, according to Presidential Decree No. 86, "to broaden the
base of citizen participation in the democratic process and to afford ample
opportunities for the citizenry to express their views on important national
issues." (2) The President announced, according to the Daily Express of
January 2, 1973, that "the referendum will be in the nature of a loose
consultation with the people." (3) The question, as submitted to them on
the particular point at issue here, was "Do you a approve of the
Constitution?" (4) President Marcos, in proclaiming that the Constitution
had been ratified, stated as follows: "(S)ince the referendum results show
that more than ninety-five (95) per cent of the members of the Barangays
(Citizens Assemblies) are in favor of the new Constitution, the Katipunan ng
mga Barangay has strongly recommended that the new Constitution
should already be deemed ratified by the Filipino people." (5) There was
not enough time for the Citizens Assemblies to really familiarize
themselves with the Constitution, much less with the many other subjects
that were submitted to them. In fact the plebiscite planned for January 15,
1973 under Presidential Decree No. 73 had been postponed to an
indefinite date, the reasons for the postponement being, as attributed to
the President in the newspapers, that "there was little time to campaign
for or against ratification" (Daily Express, Dec. 22, 1972); that he would
base his decision (as to the date, of the plebiscite) on the compliance by
the Commission (on Elections) on the publication requirement of the new
Charter and on the position taken by national leaders" (Daily Express, Dec.
23, 1972); and that "the postponement would give us more time to debate
on the merits of the Charter." (Bulletin Today, Dec. 24, 1972.)
The circumstances above enumerated lead us to the conclusion that the
Citizens Assemblies could not have understood the referendum to be for
the ratification of the Constitution, but only for the expression of their
views on a consultative basis. Indeed, if the expression of those views had
Page 98 of 158
been intended as an act of ratification (or of rejection as a logical corollary)
— there would have been no need for the Katipunan ng mga Barangay to
recommend that the Constitution should already be deemed ratified, for
recommendation imports recognition of some higher authority in whom
the final decision rests.
But then the President, pursuant to such recommendation, did proclaim
that the Constitution had been ratified and had come into effect. The more
relevant consideration, therefore, as far as we can see, should be as to
what the President had in mind in convening the Citizens Assemblies,
submitting the Constitution to them and proclaiming that the favorable
expression of their views was an act of ratification. In this respect
subjective factors, which defy judicial analysis and adjudication, are
necessarily involved.
In positing the problem within an identifiable frame of reference we find
no need to consider whether or not the regime established by President
Marcos since he declared martial law and under which the new
Constitution was submitted to the Citizens Assemblies was a revolutionary
one. The pivotal question is rather whether or not the effectivity of the said
Constitution by virtue of Presidential Proclamation No. 1102, upon the
recommendation of the Katipunan ng mga Barangay, was intended to be
definite and irrevocable, regardless of non-compliance with the pertinent
constitutional and statutory provisions prescribing the procedure for
ratification. We must confess that after considering all the available
evidence and all the relevant circumstances we have found no reasonably
reliable answer to the question. On one hand we read, for instance, the
following public statements of the President:
Speaking about the proclamation of martial law, he said:
I reiterate what I have said in the past: there is no
turning back for our people.
We have committed ourselves to this revolution. We
have pledged to it our future, our fortunes, our lives,
our destiny. We have burned our bridges behind us. Let
no man misunderstand the strength of our resolution.
(A Report to the Nation, Jan. 7, 1973.)
On the occasion of the signing of Proclamation No. 1102 on January 17,
1973, the President said the following, among other things:
... We can, perhaps delimit the power of the people to
speak on legal matters, on justiciable matters, on
matters that may come before the experts and
interpreters of the law. But we cannot disqualify the

people from speaking on what we and the people
consider purely political matters especially those that
affect the fundamental law of the land.
... The political questions that were presented to the
people are exactly those that refer to the form of
government which the people want ... The implications
of disregarding the people's will are too awesome to be
even considered. For if any power in government
should even dare to disregard the people's will there
would be valid ground for revolt.
... Let it be known to everybody that the people have
spoken and they will no longer tolerate any attempt to
undermine the stability of their Republic; they will rise
up in arms not in revolt against the Republic but in
protection of the Republic which they have installed. It
is quite clear when the people say, we ratify the
Constitution, that they mean they will not discard, the
Constitution.
On January 19, 1973 the Daily Express published statement of the
President made the day before, from which the following portion is
quoted:
... the times are too grave and the stakes too high for
us permit the customary concessions to traditional
democratic process to hold back our people's clear and
unequivocal resolve and mandate to meet and
overcome the extraordinary challenges presented by
these extraordinary times.
On the same occasion of the signing of Proclamation No. 1102 the
President made pointed reference to "the demand of some of our citizens
... that when all other measures should fail, that the President be directed
to organize and establish a Revolutionary Government," but in the next
breath added: "... if we do ratify the Constitution, how can we speak of
Revolutionary Government? They cannot be compatible ..." "(I)t is my
feeling," he said, "that the Citizens' Assemblies which submitted this
recommendation merely sought articulate their impatience with the status
quo that has brought about anarchy, confusion and misery to the masses
..." The only alternatives which the President clearly implied by the
foregoing statements were the ratification of the new Constitution and the
establishment of a revolutionary government, the latter being
unnecessary, in his opinion, because precisely the Constitution had been
ratified. The third obvious alternative was entirely ruled out, namely, a
return to the 1935 Constitution, for it was the status quo under that
Constitution that had caused "anarchy, confusion and misery." The
Page 99 of 158
message seems clear: rather than return to such status quo, he would heed I have had to use this constitutional power in order that
the recommendation of the Citizens' Assemblies to establish a we may not completely lose the civil rights and
revolutionary government, because that would be the only other way to freedom which we cherish...
carry out the reforms he had envisioned and initiated — reforms which, in
all fairness and honesty, must be given credit for the improved quality of ... We are against the wall. We must now defend the
life in its many aspects, except only in the field of civil liberties. Republic with the stronger powers of the Constitution.
If there is any significance, both explicit and implicit, and certainly (Vital Documents, pp. 1-12; emphasis supplied).
unmistakable, in the foregoing pronouncements, it is that the step taken in
connection with the ratification of the Constitution was meant to be
In the report of an interview granted by the President to the Newsweek
irreversible, and that nothing anyone could say would make the least
Magazine (published in the issue of January 29, 1973), the following
difference. And if this is a correct and accurate assessment of the situation,
appears:
then we would say that since it has been brought about by political action
and is now maintained by the government that is in undisputed authority
and dominance, the matter lies beyond the power of judicial review. xxx xxx xxx
On the other hand, by avowals no less significant if not so emphatic in Q. Now that you have gotten off
terms, President Marcos has professed fealty to the Constitution. In the constitutional track, won't you
"Today's Revolution: Democracy" he says: be in serious trouble if you run into
critical problems with your
programs?
I believe, therefore, in the necessity of Revolution as an
instrument of individual and social change ... but that in
a democratic society, revolution is of necessity, R. I have never gotten off the
constitutional, peaceful, and legal. constitutional track. Everything I am
doing is in accordance with the
1935 Constitution. The only thing is
In his TV address of September 23, 1972, President Marcos told the nation:
that instead of 18-year-olds voting,
we have allowed 15-year-olds the
I have proclaimed martial law in accordance with the right to vote. But the 15-year-olds
powers vested in the President by the Constitution of of today are high-school students, if
the Philippines. not graduates, and they are better
informed than my contemporaries
xxx xxx xxx at that age. On the matter of
whether it is constitutional to
proclaim martial law, it is
I repeat, this is not a military takeover of civil
constitutional because the
government functions. The Government of the Republic
Constitution provides for it in the
of the Philippines which was established by our people
event of invasion, insurrection,
in 1946 continues.
rebellion or immediate danger
thereof. We may quarrel about
xxx xxx xxx
whether what we have gone
through is sufficient cause to
I assure you that I am utilizing this power vested in me proclaim martial law but at the very
by the Constitution to save the Republic and reform our least there is a danger of rebellion
society... because so many of our soldiers
have been killed. You must
remember this (martial law
provision) was lifted from the

American legislation that was the
fundamental law of our country.
xxx xxx xxx
In the light of this seeming ambivalence, the choice of what course of
action to pursue belongs to the President. We have earlier made reference
to subjective factors on which this Court, to our mind, is in no position to
pass judgment. Among them is the President's own assessment of the will
of the people as expressed through the Citizens Assemblies and of the
importance of the 1973 Constitution to the successful implementation of
the social and economic reforms he has started or envisioned. If he should
decide that there is no turning back, that what the people recommended
through the Citizens Assemblies, as they were reported to him, demand
that the action he took pursuant thereto be final and irrevocable, then
judicial review is out of the question.
In articulating our view that the procedure of ratification that was followed
was not in accordance with the 1935 Constitution and related statutes, we
have discharged our sworn duty as we conceive it to be. The President
should now perhaps decide, if he has not already decided, whether
adherence to such procedure is weighty enough a consideration, if only to
dispel any cloud of doubt that may now and in the future shroud the
nation's Charter.
In the deliberations of this Court one of the issues formulated for
resolution is whether or not the new Constitution, since its submission to
the Citizens Assemblies, has found acceptance among the people, such
issue being related to the political question theory propounded by the
respondents. We have not tarried on the point at all since we find no
reliable basis on which to form a judgment. Under a regime of martial law,
with the free expression of opinions through the usual media vehicles
restricted, we have no means of knowing, to the point of judicial certainty,
whether the people have accepted the Constitution. In any event, we do
not find the issue decisive insofar as our vote in these cases is concerned.
To interpret the Constitution — that is judicial. That the Constitution
should be deemed in effect because of popular acquiescence — that is
political, and therefore beyond the domain of judicial review.
We therefore vote not to give due course to the instant petitions.
BARREDO, J., concurring:
As far as I am concerned, I regard the present petitions as no more than
mere reiterations of the Supplemental Petitions filed by Counsel Lorenzo
M. Tañada on January 15, 1973 in the so called Plebiscite Cases decided by
this Court on January 22, 1978. Of course, there are amplifications of some
of the grounds previously alleged and in the course of the unprecedented
five-day hearing that was held from February 12 to 16 last, more extensive
and illuminating arguments were heard by Us, but, in my estimation, and
with due recognition of the sincerety, brilliance and eloquence of counsels,
nothing more cogent and compelling than what had already been
previously presented by Counsel Tañada is before Us now. Accordingly, I
cannot see any reason why I should change the position I took in regard to
the earlier cases. I reiterate, therefore, the vote I cast when these petitions
were initially considered by the Court; namely, to dismiss them.
In view, however, of the transcendental importance of the issues before
the Court and the significance to our people and in history of the individual
stands of the members of the Court in relation to said issues and to the
final outcome of these cases, and considering that I reserved before the
filing of a more extended opinion, I will take this opportunity to explain
further why I hold that the 1973 Constitution is already in force, if only to
clarify that apart from the people's right of revolution to which I made
pointed reference in my previous opinion, I can see now, after further
reflection, that the vote of the people in the referendum in the Citizens
Assemblies held on January 10 to 15, 1973, upon the result of which
Proclamation 1102 is based, may be viewed more importantly as a political
act than as a purely legal one with the result that such vote to consider the
1973 Constitution as ratified without the necessity of holding a plebiscite in
the form followed in the previous ratification plebiscites in 1935 of the
Constitution itself, 1937 of women's suffrage, 1939 of the amendments to
the Ordinance Appended to the Constitution, 1940 of the re-election of the
President, the bicameral legislature and the Commission on Elections, 1947
of the parity amendment and 1967, rejecting the proposed increase in the
members of the House of Representatives and eligibility of members of
Congress to the Constitutional Convention, may be deemed as a valid
ratification substantially in compliance with the basic intent of Article XV of
the 1935 Constitution. If indeed this explanation may be considered as a
modification of my rationalization then, I wish to emphasize that my
position as to the fundamental issue regarding the enforceability of the
new Constitution is even firmer now than ever before. As I shall elucidate
anon, paramount considerations of national import have led me to the
conviction that the best interests of all concerned would be best served by
the Supreme Court holding that the 1973 Constitution is now in force, not
necessarily as a consequence of the revolutionary concept previously
suggested by me, but upon the ground that as a political, more than as a
legal, act of the people, the result of the referendum may be construed as
a compliance with the substantiality of Article XV of the 1935 Constitution.
I subsequently, under date of December 17, 1972, the President ordered the
The facts that gave rise to these proceedings are historical and well known.
Generally, they may be taken judicial notice of. They revolve around the
Page 100 of 158
purported ratification of the Constitution of 1973 declared in Proclamation
1102 issued by the President on January 17, 1973.
Pursuant to a joint resolution of the Congress sitting as a constituent
assembly approved on March 16, 1967, delegates to a constitutional
convention to propose amendments to the Constitution of 1935 were
elected in accordance with the implementing law, Republic Act 6132, on
November 10, 1970. Known as the Constitutional Convention of 1971, the
assembly began its sessions on June 1, 1971. After encountering a lot of
difficulties, due to bitter rivalries over important positions and committees
and an incomprehensible fear of overconcentrating powers in their
officers, the delegates went about their work in comparatively slow pace,
and by the third quarter of 1972 had finished deliberations and second-
reading voting only on an insignificant number of proposals — until
September 21, 1972, when the President, not altogether unexpectedly, yet
abruptly, issued Proclamation 1081 declaring martial law throughout the
country. An attempt was made to have the Convention recessed until after
the lifting of martial law, and not long after the motion of Delegate Kalaw
to such effect was turned down, the activities within the assembly shifted
to high gear. As if unmindful of the arrest and continued detention of
several of its members, the convention gathered swift momentum in its
work, and on November 30, 1972, it approved by overwhelming vote the
draft of a complete constitution, instead of mere specific amendments of
particular portions of the Constitution of 1935. Needless to say, before
martial law was declared, there was full and unlimited coverage of the
workings in the convention by the mass media. At the same time, public
debates and discussions on various aspects of proposed amendments were
not uncommon.
Earlier, on November 22, 1972, the Convention had Resolution No. 5843
proposing "to President Ferdinand Marcos that a decree be issued calling a
plebiscite for ratification of the proposed new Constitution on appropriate
date as he shall determine and providing for necessary funds therefor."
Acting under this authority, December 1, 1972, the President issued
Presidential Decree No. 73 submitting the draft constitution for ratification
by the people at a plebiscite set for January 15, 1973. This order contained
provisions more or less similar to the plebiscite laws passed by Congress
relative to the past plebiscites held in connection with previous proposed
amendments.
In connection with the plebiscite thus contemplated, General Order No. 17
was issued ordering and enjoining the authorities to allow and encourage
public and free discussions on proposed constitution. Not only this,
suspension the effects of martial law and lifted the suspension of privilege
of the writ of habeas corpus insofar as activities connected with the
ratification of the draft constitution were concerned. These two orders
were not, however, to last very long. On January 7, 1973, the President,

invoking information related to him that the area of public debate and
discussion had opened by his previous orders was being taken advantage
of by subversive elements to defeat the purposes for which they were
issued and to foment public confusion, withdrew said orders and enjoined
full and stricter implementation of martial law.
In the meantime, the President had issued on December 3, 1972
Presidential Decree No. 86 creating Citizens Assemblies "so as to afford
ample opportunities for the citizenry to express their views on important
national issues" and one of the questions presented to said assemblies
was: "Do you like the plebiscite on the proposed Constitution to be held
later" So, the same order of January 7, 1973, General Order No. 20, the
President ordered, "that the plebiscite scheduled to be held January 15,
1973, be postponed until further notice".
In the meanwhile also, on January 5, 1973, the President issued
Presidential Decree, No. 86-A providing as follows:
PRESIDENTIAL DECREE NO. 86-A
STRENGTHENING AND DEFINING THE ROLE OF
BARANGAYS (CITIZENS ASSEMBLIES)
WHEREAS, on the basis of preliminary and initial
reports from the field as gathered from barangays
(citizens assemblies) that have so far been established,
the people would like to decide for themselves
questions or issues, both local and national, affecting
their day-to-day lives and their future;
WHEREAS, the barangays (citizens assemblies) would
like themselves to be the vehicle for expressing the
views of the people on important national issues;
WHEREAS, such barangays (citizens assemblies) desire
that they be given legal status and due recognition as
constituting the genuine, legitimate and valid
expression of the popular will; and
WHEREAS, the people would like the citizens
assemblies to conduct immediately a referendum on
certain specified questions such as the ratification of
the new Constitution, continuance of martial law, the
convening of Congress on January 22, 1973, and the
elections in November 1973 pursuant to the 1935
Constitution.
NOW, THEREFORE, I, FERDINAND E. MARCOS, President
of the Philippines, by virtue of the powers vested in me
by the Constitution as Commander-in-Chief of all
Armed Forces of the Philippines, do hereby declare as
part of the law of the land the following:
1. The present barangays (citizens assemblies) are
created under Presidential Decree No. 86 dated
December 31, 1972, shall constitute the base for citizen
participation in governmental affairs and their
collective views shall be considered in the formulation
of national policies or programs and, wherever
practicable, shall be translated into concrete and
specific decision;
2. Such barangays (citizens assemblies) shall consider
vital national issues now confronting the country, like
the holding of the plebiscite on the new Constitution,
the continuation of martial rule, the convening of
Congress on January 22, 1973, and the holding of
elections in November 1973, and others in the future,
which shall serve as guide or basis for action or decision
by the national government;
3. The barangays (citizens assemblies) shall conduct
between January 10 and 15, 1973, a referendum on
important national issues, including those specified in
paragraph 2 hereof, and submit results thereof to the
Department of Local Governments Community
Development immediately thereafter, pursuant to
express will of the people as reflected in the reports
gathered from the many thousands of barangays
(citizens assemblies) throughout the country.
4. This Decree shall take effect immediately.
Done in the City of Manila, this 5th day of January, in
the year of Our Lord, nineteen hundred and seventy
three.
And on January 7, 1973, this was followed by Presidential Decree No. 86-B
reading thus:
PRESIDENTIAL DECREE NO. 86-B
DEFINING FURTHER THE ROLE OF BARANGAYS (CITIZENS
ASSEMBLIES)
Page 101 of 158
WHEREAS, since their creation pursuant to Presidential
Decree No. 86 dated December 31, 1972, the
Barangays (Citizens Assemblies) have petitioned the
Office of the President to submit them for resolution
important national issues;
WHEREAS, one of the questions persistently mentioned
refers to the ratification of the Constitution proposed
by the 1971 Constitutional Convention;
WHEREAS, on the basis of the said petitions, it is
evident that the people believe that the submission of
the proposed Constitution to the Citizens Assemblies or
Barangays should be taken as a plebiscite in itself in
view of the fact that freedom of debate has always
been limited to the leadership in political, economic
and social fields, and that it is now necessary to bring
this down to the level of the people themselves
through the Barangays or Citizens Assemblies;
NOW THEREFORE, I, FERDINAND E. MARCOS, President
of the Philippines, by virtue of the powers in me vested
by the Constitution, do hereby order that important
national issues shall from time to time be referred to
the Barangays (Citizens Assemblies) for resolution in
accordance with Presidential Decree No. 86-A dated
January 5, 1973 and that the initial referendum shall
include the matter of ratification of the Constitution
proposed by the 1971 Constitutional Convention.
The Secretary of the Department of Local Governments
and Community Development shall insure the
implementation of this Order.
Done in the City of Manila, this 7th day of January in
the year of Our Lord, nineteen hundred and seventy-
three.
And so it was that by January 10, 1973, when the Citizens Assemblies thus
created started the referendum which was held from said date to January
15, 1973, the following questions were submitted to them:
(1) Do you like the New Society?
(2) Do you like the reforms under martial law?
(3) Do you like Congress again to hold sessions?

(4) Do you like the plebiscite to be held later?
(5) Do you like the way President Marcos is running the
affairs of the government?.
but on January 11, 1973, six questions were added as follows:
(1) Do you approve of the citizens assemblies as the
base of popular government to decide issues of
national interests?
(2) Do you approve of the New Constitution?
(3) Do you want a plebiscite to be called to ratify the
new Constitution?
(4) Do you want the elections to be held in November,
1973 in accordance with the provisions of the 1935
Constitution?
(5) If the elections would not be held, when do you
want it to be called?
(6) Do you want martial law to continue?
It is not seriously denied that together with the question the voters were
furnished "comments" on the said questions more or less suggestive of the
answer desired. It may assumed that the said "comments" came from
official sources, albeit specifically unidentified. As petitioners point out, the
most relevant of these "comments" were the following:
COMMENTS ON
xxx xxx xxx
QUESTION No. 2
But we do not want the Ad Interim
Assembly to be convoke. Or if it is
to be convened at all, it should not
be done so until after at least seven
(7) years from the approval of the
New Constitution by the Citizens
Assemblies.
QUESTION No. 3
The vote of the Citizens Assemblies
should already be considered the
plebiscite on the New Constitution.
If the Citizens Assemblies approve
of the new Constitution then the
new Constitution should be
deemed ratified.
The Solicitor General claims, and there seems to be showing otherwise,
that the results of the referendum were determined in the following
manner:
Thereafter, the results of the voting were collated and
sent to the Department of Local Governments. The
transmission of the results was made by telegram,
telephone, the provincial government SSB System in
each province connecting all towns; the SSB
communication of the PACD connecting most
provinces; the Department of Public Information
Network System; the Weather Bureau Communication
System connecting all provincial capitals and the
National Civil Defense Network connecting all
provincial capitals. The certificates of results were then
flown to Manila to confirm the previous figures
received by the aforementioned means of
transmission. The certificates of results tallied with the
previous figures taken with the exception of few cases
of clerical errors.
The Department adopted a system of regionalizing the
receiving section of the Citizens Assemblies operation
at the Department wherein the identity of the barrio
and the province was immediately given to a staff in
charge of each region. Every afternoon at 2:00 o'clock,
the 11 regions submitted the figures they received
from the field to the central committee to tabulate the
returns. The last figures were tabulated at 12 midnight
of January 16, 1973 and early morning of January 17,
1973 and were then communicated to the President by
the Department of Local Governments.
The development culminated in the issuance by the President of
Proclamation 1102 on January 17, 1973. Said proclamation reads:
Page 102 of 158
PROCLAMATION NO. 1102 ANNOUNCING THE
RATIFICATION BY THE FILIPINO PEOPLE OF THE
CONSTITUTION PROPOSED BY THE 1971
CONSTITUTIONAL CONVENTION.
WHEREAS, the Constitution proposed by the nineteen
hundred seventy-one Constitutional Convention is
subject to ratification by the Filipino people;
WHEREAS, Citizens Assemblies were created in barrios
in municipalities and in districts/wards in chartered
cities pursuant to Presidential Decree No. 6, dated
December 31, 1972, composed of all persons who are
residents of the barrio, district or ward for at least six
months, fifteen years of age or over, citizens of the
Philippines and who are registered in the list of Citizen
Assembly members kept by the barrio, district or ward
secretary;
WHEREAS, the said Citizens Assemblies were establish
precisely to broaden the base of citizen participation in
the democratic process and to afford ample
opportunity for the citizen to express their views on
important national issues;
WHEREAS, responding to the clamor of the people an
pursuant to Presidential Decree No. 86-A, dated
January 5, 1973, the following questions were posed
before Citizens' Assemblies or Barangays: Do you
approve of the New Constitution? Do you still want a
plebiscite to be called to ratify the new Constitution?
WHEREAS, fourteen million nine hundred seventy-six
thousand five hundred sixty one (14,976,561) members
of all the Barangays (Citizens Assemblies) voted for the
adoption of the proposed Constitution, as against
seven hundred forty-three thousand eight hundred
sixty nine (743,869) who voted for its rejection; while
on the question as to whether or not the people would
still like a plebiscite to be called to ratify the new
Constitution fourteen million two hundred ninety-eight
thousand eight hundred fourteen (14,298,814)
answered that there was no need for plebiscite and
that the vote of the Barangays (Citizens Assemblies)
should be considered as a vote in a plebiscite;

WHEREAS, since the referendum results show that
more than ninety-five (95) percent of the members of
the Barangays (Citizen Assemblies) are in favor of the
New Constitution, the Katipunan ng Mga Barangay has
strongly recommended that the new Constitution
should already be deemed ratified by the Filipino
people;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President
of the Philippines, by virtue of the powers in me vested
by the Constitution, do hereby certify and proclaim that
the Constitution proposed by the nineteen hundred
and seventy-one (1971) Constitutional Convention has
been ratified by an overwhelmingly majority of all of
the votes cast by the members of all the Barangays
(Citizens Assemblies) throughout the Philippines, and
has thereby come into effect.
IN WITNESS WHEREOF, I have hereunto set my hand
and caused the seal of the Republic of the Philippines
to be affixed.
Done in the City of Manila, this 17th day of January, in
the year of Our Lord, nineteen hundred and seventy-
three.
The first attempt to question the steps just enumerated taken by the
President was in the so-called Plebiscite Cases, ten in number, which were
filed by different petitioners during the first half of December 1972.1 Their
common target then was Presidential Decree No. 73, but before the said
cases could be decided, the series of moves tending in effect to make them
moot and academic insofar as they referred exclusively to the said
Presidential Decree began to take shape upon the issuance of Presidential
Decree No. 86-A, quoted above. And when Presidential Decree No. 86-B,
also above quoted, was issued and the six additional questions which were
first publicized on January 11, 1973 were known, together with the
"comments", petitioners sensed that a new and unorthodox procedure was
being adopted to secure approval by the people of the new Constitution,
hence Counsel Tañada, not being satisfied with the fate of his urgent
motion for early decision of the above ten cases dated January 12, 1973,
filed on January 15, 1973, his supplemental motion seeking the prohibition
against and injunction of the proceedings going on. Principal objective was
to prevent that the President be furnished the report of the results of the
referendum and thereby disable him from carrying out what petitioners
were apprehensively foreseeing would be done — the issuance of some
kind of proclamation, order or decree, declaring that the new Constitution
had been ratified. Reacting swiftly, the Court resolved on the same day,
January 15, which was Monday, to consider the supplemental motion as a
supplemental petition and to require the respondents to answer the same
the next Wednesday, January 17th, before the hour of the hearing of the
petition which set for 9:30 o'clock in the morning of that day. The details
what happened that morning form part of the recital of facts the decision
rendered by this Court in the ten cases on January 22, 1973 and need not
be repeated here. Suffice it to state no that before the hearing could be
closed and while Counsel Tañada was still insisting on his prayer for
preliminary injunction or restraining order, the Secretary of Justice arrived
and personally handed to the Chief Justice a copy Proclamation 1102 which
had been issued at about 11:00 o'clock that same morning. In other words,
the valiant and persistent efforts of petitioners and their counsels were
overtaken by adverse developments, and in the mind of the majority of the
members of the Court, the cases had become academic. For my part, I took
the view that even on the basis of the supplemental petition and the
answer thereto filed by respondents, the Court could already decide on the
fundamental issue of the validity Proclamation 1102, as Justices Zaldivar,
Antonio and Esguerra also believed, inasmuch as Counsel Tañada's
pleading and argument had anticipated its issuance, but the majority felt it
was not ready to resolve the matter, for lack, according them, of full
ventilation, and so, the decision reserved petitioners the filing of the
"appropriate" cases, evidently, the present ones.
II
At the threshold, I find myself confronted by a matter which, although
believed to be inconsequential by my learned brethren, I strongly feel
needs special attention. I refer to the point raised by Counsel Arturo M.
Tolentino for respondent Gil J. Puyat and Jose Roy, who have been sued as
President and President Pro Tempore of the Senate, to the effect that
change in the composition of the Supreme Court provided for the 1973
Constitution, from the 11-man tribunal under the 1935 Constitution to a
15-man Court, makes of these cases which were filed after January 17,
1973 the date when Proclamation 1102 declared the new Constitution as
ratified, political nature and beyond our jurisdiction. The main
consideration submitted in this connection is that inasmuch as the number
votes needed for a decision of this Court has been increased from six to
eight in ordinary cases and from eight to ten for the declaration of
unconstitutionality of a treaty, executive agreement 2 or law, the Court
would have to resolve first as a prejudicial question whether the Court is
acting in these cases as the 15-man or the 11-man Court, in which event, it
would be faced with the dilemma that if it acts either as the former or as
the latter, it would be prejudging the very matter in issue one way or the
other, and, in effect, it would be choosing between two constitutions,
which is a political determination not within the Court's competence.
While I agree that the problem is at first blush rather involved, I do not
share the view that the premises laid down by counsel necessarily preclude
this Court from taking a definite stand on whether the Court is acting in
Page 103 of 158
these cases as the 15-Man or the 11-man Court. I feel very strongly that
the issue should not be ignored or dodged, if only to make the world know
that the Supreme Court of the Philippines is never incognizant of the
capacity in which it is acting, much less lacking in courage or wisdom to
resolve an issue that relates directly to its own composition. What a
disgrace it would be to admit that this Supreme Court does not know, to
use a common apt expression, whether it is fish or fowl. Withal, scholars
and researchers who might go over our records in the future will inevitably
examine minutely how each of us voted and upon what considerations we
have individually acted, and, indeed, doubts may arise as to whether or
not, despite the general result we might announce, there had been the
requisite number of votes for a valid collegiate action.
For instance, it may be argued that the present cases do not involve an
issue of unconstitutionality, hence, if we are acting as the 11-man Court,
only six votes would suffice to declare Proclamation 1102 ineffective, and if
upon analysis of our respective opinions it should be inferable therefrom
that six of us have considered the matter before the Court as justiciable
and at the same time have found the procedure of ratification adopted in
Presidential Decrees 86-A and 86-B and related orders of the President as
not being in conformity with Article XV of the old Constitution, a cloud
would exist as to efficacy of the dispositive portion of Our decision dismiss
these cases, even if we have it understood that by the vote of justices in
favor of such dismissal, We intended to mean the implementation or
enforcement of the new Constitution now being done could continue.
Be that as it may, I am against leaving such an important point open to
speculation. By nature I am averse to ambiguity and equivocation and as a
member of the Supreme Court, last thing I should knowingly countenance
is uncertainty as to the juridical significance of any decision of the Court
which is precisely being looked upon as the haven in which doubts are
supposed to be authoritatively dispelled. Besides, from very nature of
things, one thing is indubitably beyond dispute — we cannot act in both
capacities of a 15-man and an 11-man Court at the same time, in like
manner that it is inconceivable that the 1935 and 1973 Constitution can be
considered by Us both in force. Our inescapable duty is to make a choice
between them, according to what law and other considerations inherent to
our function dictate. I cannot bear the thought that someone may
someday say that the Supreme Court of the Philippines once decided a
case without knowing the basis of its author to act or that it was ever
wanting in judicial courage to define the same.
Accordingly, with full consciousness of my limitations but compelled by my
sense of duty and propriety to straighten out this grave of issue touching
on the capacity in which the Court acting in these cases, I hold that we
have no alternative but adopt in the present situation the orthodox rule
that when validity of an act or law is challenged as being repugnant
constitutional mandate, the same is allowed to have effect until the

Supreme Court rules that it is unconstitutional. Stated differently, We have
to proceed on the assumption that the new Constitution is in force and
that We are acting in these cases as the 15-man Supreme Court provided
for there Contrary to counsel's contention, there is here no prejudgment
for or against any of the two constitutions. The truth of matter is simply
that in the normal and logical conduct governmental activities, it is neither
practical nor wise to defer the course of any action until after the courts
have ascertained their legality, not only because if that were to be the rule,
the functioning of government would correspondingly be undesirably
hesitative and cumbersome, but more importantly, because the courts
must at the first instance accord due respect to the acts of the other
departments, as otherwise, the smooth running of the government would
have to depend entirely on the unanimity of opinions among all its
departments, which is hardly possible, unless it is assumed that only the
judges have the exclusive prerogative of making and enforcing the law,
aside from being its sole interpreter, which is contrary to all norms of
juridical and political thinking. To my knowledge, there is yet no country in
the world that has recognized judicial supremacy as its basic governmental
principle, no matter how desirable we might believe the idea to be.
Indeed, it is not hard to visualize the difficulty if not absurdity of Our acting
on the assumption that this Court is still functioning under the 1935
Constitution. It is undeniable that the whole government, including the
provincial, municipal and barrio units and not excluding the lower courts
up to the Court of Appeals, is operating under the 1973 Constitution.
Almost daily, presidential orders and decrees of the most legislative
character affecting practically every aspect of governmental and private
activity as well as the relations between the government and the citizenry
are pouring out from Malacañang under the authority of said Constitution.
On the other hand, taxes are being exacted and penalties in connection
therewith are being imposed under said orders and decrees. Obligations
have been contracted and business and industrial plans have been and are
being projected pursuant to them. Displacements of public officials and
employees in big numbers are going on in obedience to them. For the ten
justices of the Supreme Court to constitute an island of resistance in the
midst of these developments, which even unreasoning obstinacy cannot
ignore, much less impede, is unimaginable, let alone the absurd and
complicated consequences such a position entails in the internal workings
within the judiciary amount its different components, what with the lower
courts considering such orders and decrees as forming part of the law of
the land in making their orders and decisions, whereas the Supreme Court
is holding, as it were, their effectivity at bay if it is not being indifferent to
or ignoring them.
It is suggested that the President, being a man of law, committed to abide
by the decision of the Supreme Court, and if the Court feels that it cannot
in the meantime consider the enforcement of the new Constitution, he can
wait for its decision. Accepting the truth of this assertion, it does
necessarily follow that by this attitude of the President, considers the
Supreme Court as still operating under the Constitution. Quite on the
contrary, it is a fact that he has given instructions for the payment of the
justices in accordance with the rate fixed in the New Constitution. Not only
that, official alter ego, the Secretary of Justice, has been shoving this Court,
since January 18, 1973, all matters related to the administrative
supervision of the lower courts which by the new charter has been
transferred from the Department of Justice to the Supreme Court, and as
far as I know, President has not countermanded the Secretary's steps in
that direction. That, on the other hand, the President has not augmented
the justices of the Court to complete the prescribed number of fifteen is, in
my appraisal, of no consequence considering that with the presence of ten
justices who are the Court now, there is a working quorum, and the
addition of new justices cannot in anyway affect the voting on the
constitutional questions now before Us because, while there sufficient
justices to declare by their unanimous vote illegality of Proclamation 1102,
the votes of the justices to added would only be committed to upholding
the same, since they cannot by any standard be expected to vote against
legality of the very Constitution under which they would be appointed.
Moreover, what makes the premise of presumptive valid preferable and,
even imperative, is that We are dealing here with a whole constitution that
radically modifies or alters only the form of our government from
presidential parliamentary but also other constitutionally institutions vitally
affecting all levels of society. It is, to mind, unrealistic to insist on that,
fundamentally, the 1973 Constitution is the same 1935 Constitution, with a
few improvements. A cursory perusal of the former should convince
anyone that it is in essence a new one. While it does retain republicanism
as the basic governmental tenet, the institutional changes introduced
thereby are rather radical and its social orientation is decidedly more
socialistic, just as its nationalistic features are somewhat different in
certain respects. One cannot but note that the change embraces practically
every part of the old charter, from its preamble down to its amending and
effectivity clauses, involving as they do the statement of general principles,
the citizenship and suffrage qualifications, the articles on the form of
government, the judiciary provisions, the spelling out of the duties and
responsibilities not only of citizens but also of officers of the government
and the provisions on the national economy as well as the patrimony of the
nation, not to mention the distinctive features of the general provisions.
What is more, the transitory provisions notably depart from traditional and
orthodox views in that, in general, the powers of government during the
interim period are more or less concentrated in the President, to the
extent that the continuation or discontinuance of what is now practically a
one-man-rule, is even left to his discretion. Notably, the express ratification
of all proclamations, orders, decrees and acts previously issued or done by
the President, obviously meant to encompass those issued during martial
law, is a commitment to the concept of martial law powers being
implemented by President Marcos, in defiance of traditional views and
prevailing jurisprudence, to the effect that the Executive's power of
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legislation during a regime of martial law is all inclusive and is not limited
to the matters demanded by military necessity. In other words, the new
constitution unlike any other constitution countenances the institution by
the executive of reforms which normally is the exclusive attribute of the
legislature.
Withal, the best proofs that by its expressed and implied intent, the
Constitution of 1973 is a new one, are that (1) Section 16 of its Article XVII
which provides that this constitution shall "supersede the Constitution of
nineteen hundred and thirty-five and all amendments thereto" and (2) its
transitory provisions expressly continue the effectivity of existing laws,
offices and courts as well as the tenure of all incumbent officials, not
adversely affected by it, which would have been unnecessary if the old
constitution were being merely amended.
The new Constitution, in its Section 10, Article XVII, provides that "(T)he
incumbent members of the Judiciary (which include the Chief Justice and
Associate Justices of Supreme Court) may continue in office (under the
constitution) until they reach the age of seventy years, etc." By virtue of
the presumptive validity of the new charter, all of form part of the 15-man-
Court provided for therein correspondingly, We have in legal
contemplation, ceased in the meanwhile to be members of the 11-man-
Court in the 1935 Constitution. Should the Court finally decide that the
Constitution is invalid, then We would automatically revert to our positions
in the 11-man- Court, otherwise, We would just continue to be in our
membership in the 15-man-Court, unless We feel We cannot in conscience
accept the legality of existence. On the other hand, if it is assumed that We
are the 11-man-Court and it happens that Our collective decision is in favor
of the new constitution, it would be problematical for any dissenting justice
to consider himself as included automatically in the 15-man-Court, since
that would tantamount to accepting a position he does not honestly
believe exists.
III
In brief, the main contention of the petitioners is that Proclamation 1102 is
invalid because the ratification of the 1973 Constitution it purports to
declare as having taken place as a result of the referendum above-referred
to is ineffective since it cannot be said on the basis of the said referendum
that said Constitution has been "approved by a majority of the votes cast at
an election" in the manner prescribed by Article XV the Constitution of
1935. More specifically, they maintain that the word "election" in the said
Article has already acquired a definite accepted meaning out of the
consistent holding in the past of ratification plebiscites, and accordingly, no
other form of ratification can be considered contemplated by the framers
of the Old Constitution than that which had been followed 1935, 1937,
1939, 1940, 1946 and 1967, the last three or four which were held under
the supervision of the Commission on Elections. Furthermore, they

emphatically deny the veracity of the proclaimed results of the referendum
because, according to them the referendum was a farce and its results
were manufactured or prefabricated, considering that Mr. Francisco Cruz,
who is supposed to have submitted the final report to the President, which
served as basis for Proclamation 1102, had no official authority to render
the same, and it is inconceivable and humanly impossible for anyone to
have been able to gather, tabulate and canvass the 15 million votes
allegedly reported within the short period of time employed. Of course,
they also contend that in any event, there was no proper submission
because martial law per se creates constructive duress which deprives the
voters of the complete freedom needed for the exercise of their right of
choice and actually, there was neither time nor opportunity for real debate
before they voted.
On the other hand, the position of the Solicitor General as counsel for the
respondents is that the matter raised in the petitions is a political one
which the courts are not supposed to inquire into, and, anyway, there has
been a substantial compliance with Article XV of the 1935 Constitution,
inasmuch as, disregarding unessential matters of form, the undeniable fact
is that the voting in the referendum resulted in the approval by the people
of the New Constitution.
I need not dwell at length on these variant positions of the parties. In my
separate opinion in the Plebiscite Cases, I already made the observation
that in view of the lack of solemnity and regularity in the voting as well as
in the manner of reporting and canvassing conducted in connection with
the referendum, I cannot say that Article XV of the Old Constitution has
been complied with, albeit I held that nonetheless, the Constitution of
1973 is already in force. In order, however, to make myself clearer on some
relevant points, I would like to add a few considerations to what I have
already said in the former cases.
In my opinion in those cases, the most important point I took into account
was that in the face of the Presidential certification through Proclamation
1102 itself that the New Constitution has been approved by a majority of
the people and having in mind facts of general knowledge which I have
judicial notice of, I am in no position to deny that the result of the
referendum was as the President had stated. I can believe that the figures
referred to in the proclamation may not accurate, but I cannot say in
conscience that all of them are manufactured or prefabricated, simply
because I saw with own eyes that people did actually gather and listen
discussions, if brief and inadequate for those who are abreast of current
events and general occurrences, and that they did vote. I believe I can
safely say that what I have seen have also been seen by many others
throughout the country and unless it can be assumed, which honestly, I do
not believe to be possible, that in fact there were actually no meetings held
and no voting done in more places than those wherein there were such
meetings and votings, I am not prepared to discredit entirely the
declaration that there was voting and that the majority of the votes were
in favor of the New Constitution. If in fact there were substantially less
than 14 million votes of approval, the real figure, in my estimate, could still
be significant enough and legally sufficient to serve as basis for a valid
ratification.
It is contended, however, that the understanding was that the referendum
among the Citizens Assemblies was to be in the nature merely of a loose
consultation and not an outright submission for purposes of ratification. I
can see that at the outset, when the first set of questions was released,
such may have been the idea. It must not be lost sight of, however, that if
the newspaper reports are to be believed, and I say this only because
petitioners would consider the newspapers as the official gazettes of the
administration, the last set of six questions were included precisely
because the reaction to the idea of mere consultation was that the people
wanted greater direct participation, thru the Citizens Assemblies, in
decision-making regarding matters of vital national interest. Thus, looking
at things more understandingly and realistically the two questions
emphasized by counsel, namely, (1) Do yo approve of the New
Constitution? and (2) Do you want plebiscite to be called to ratify the new
Constitution? should be considered no longer as loose consultations but as
direct inquiries about the desire of the voters regarding the matters
mentioned. Accordingly, I take it that if the majority had expressed
disapproval of the new Constitution, the logical consequence would have
been the complete abandonment of the idea of holding any plebiscite at
all. On the other hand, it is very plain to see that since the majority has
already approved the new Constitution, a plebiscite would be superfluous.
Clear as these rationalizations may be, it must have been thought that if
the holding of a plebiscite was to be abandoned, there should be a direct
and expressed desire of the people to such effect in order to forestall as
much as possible any serious controversy regarding the non-holding of the
plebiscite required by the letter of Section 16 of Article XVII, the effectivity
clause, of the new Constitution. Oddly enough, the "comments"
accompanying the questions do strongly suggest this view. And as it turned
out, the majority found no necessity in holding a plebiscite.
In connection with the question, Do you approve of the New Constitution?
capital is being made of the point that as so framed, the thrust of the said
question does not seek an answer of fact but of opinion. It is argued that it
would have been factual were it worded categorically thus — Do you
approve the New Constitution? The contention would have been weighty
were it not unrealistic. I remember distinctly that the observation
regarding the construction of the subject question was not originally made
by any of the talented counsels for petitioners. It came from Mr. Justice
Fred Ruiz Castro whose mastery of the English language can rightly be the
cause of envy of even professors of English. None of the other members of
the Court, as far as I can recall, ever noticed how the said question is
phrased, or if anyone of Us did, I am not aware that he gave it more than
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passing attention. What I mean is that if neither any of the distinguished
and learned counsels nor any member of the Court understood the said
question otherwise than calling for a factual answer instead of a mere
opinion, how could anyone expect the millions of unlettered members of
the Citizens Assemblies to have noticed the point brought out by Justice
Castro? Truth to tell, I myself did not realize the difference until Justice
Castro gave it emphasis. Besides, reading the question in the light of the
accompanying "comment" corresponding to it in particular, I am certain
that any one who answered the same understood it in no other sense than
a direct inquiry as to whether or not, as a matter of fact, he approves the
New Constitution, and naturally, affirmative answer must be taken as a
categorical vote of approval thereof, considering, particularly, that
according to the reported result of the referendum said answer was even
coupled with the request that the President defer the convening of the
Interim National Assembly.
It is also contended that because of this reference in answer to that
question to the deferment of the convening of the interim assembly, the
said answer is at best a conditional approval not proper nor acceptable for
purposes of ratification plebiscite. The contention has no basis. In interest
of accuracy, the additional answer proposed in pertinent "comment" reads
as follows: "But we do not want Ad Interim Assembly to be convoked etc."
On the assumption that the actual answer, as reported, was of similar
tenor, it is not fair to ascribe to it the imposition of a condition. At most,
the intention is no more than a suggestion or a wish.
As regards said "comments", it must be considered that a martial law was
declared, the circumstances surrounding making of the Constitution
acquired a different and more meaningful aspect, namely, the formation of
a new society. From the point of view of the President and on the basis of
intelligence reports available to him, the only way to meet situation
created by the subversive elements was to introduce immediately effective
reforms calculated to redeem the people from the depth of retrogression
and stagnation caused by rampant graft and corruption in high places,
influence peddling, oligarchic political practices, private armies, anarchy,
deteriorating conditions of peace and order, the so inequalities widening
the gap between the rich and the poor, and many other deplorable long
standing maladies crying for early relief and solution. Definitely, as in the
case of rebellious movement that threatened the Quirino Administration,
the remedy was far from using bullets alone. If a constitution was to be
approved as an effective instrument towards the eradication of such grave
problems, it had to be approved without loss of time and sans the
cumbersome processes that, from the realistic viewpoint, have in the past
obstructed rather than hastened the progress of the people. Stated
otherwise, in the context of actualities, the evident objective in having a
new constitution is to establish new directions in the pursuit of the
national aspirations and the carrying out of national policies. Only by
bearing these considerations in mind can the "comments" already referred

to be properly appreciated. To others said "comments" may appear as
evidence of corruption of the will of those who attended the assemblies,
but actually, they may also be viewed in the same light as the sample
ballots commonly resorted to in the elections of officials, which no one can
contend are per se means of coercion. Let us not forget that the times are
abnormal, and prolonged dialogue and exchange of ideas are not generally
possible, nor practical, considering the need for faster decisions and more
resolute action. After all voting on a whole new constitution is different
from voting on one, two or three specific proposed amendments, the
former calls for nothing more than a collective view of all the provisions of
the whole charter, for necessarily, one has to take the good together with
the bad in it. It is rare for anyone to reject a constitution only because of a
few specific objectionable features, no matter how substantial, considering
the ever present possibility that after all it may be cured by subsequent
amendment. Accordingly, there was need to indicate to the people the
paths open to them in their quest for the betterment of their conditions,
and as long as it is not shown that those who did not agree to the
suggestions in the "comments" were actually compelled to vote against
their will, I am not convinced that the existence of said "comments" should
make any appreciable difference in the court's appraisal of the result of the
referendum.
I must confess that the fact that the referendum was held during martial
law detracts somehow from the value that the referendum would
otherwise have had. As I intimated, however, in my former opinion, it is
not fair to condemn and disregard the result of the referendum barely
because of martial law per se. For one thing, many of the objectionable
features of martial law have not actually materialized, if only because the
implementation of martial law since its inception has been generally
characterized by restraint and consideration, thanks to the expressed
wishes of the President that the same be made "Philippine style", which
means without the rigor that has attended it in other lands and other
times. Moreover, although the restrictions on the freedom of speech, the
press and movement during martial law do have their corresponding
adverse effects on the area of information which should be open to a
voter, in its real sense what "chills" his freedom of choice and mars his
exercise of discretion is suspension of the privilege of the writ of habeas
corpus. The reason is simply that a man may freely and correctly vote even
if the needed information he possesses as to the candidates or issues being
voted upon is more or less incomplete, but when he is subject to arrest and
detention without investigation and without being informed of the cause
thereof, that is something else which may actually cause him to cast a
captive vote. Thus it is the suspension of the writ of habeas
corpus accompanying martial law that can cause possible restraint on the
freedom choice in an election held during martial law. It is a fact, however,
borne by history and actual experience, that in the Philippines, the
suspension of the privilege of the writ habeas corpus has never produced
any chilling effect upon the voters, since it is known by all that only those
who run afoul the law, saving inconsequential instances, have any cause
for apprehension in regard to the conduct by them of the normal activities
of life. And so it is recorded that in the elections 1951 and 1971, held while
the privilege of writ of habeas corpus was under suspension, the Filipino
voters gave the then opposition parties overwhelming if not sweeping
victories, in defiance of the respective administrations that ordered the
suspensions.
At this juncture, I think it is fit to make it clear that I am not trying to show
that the result of the referendum may considered as sufficient basis for
declaring that the New Constitution has been ratified in accordance with
the amending clause of the 1935 Constitution. I reiterate that in point of
law, I find neither strict nor substantial compliance. The foregoing
discussion is only to counter, if I may, certain impression regarding the
general conditions obtaining during and in relation to the referendum
which could have in one way or another affected the exercise of the
freedom of choice and the use of discretion by the members of the Citizens
Assemblies, to the end that as far as the same conditions may be relevant
in my subsequent discussions of the acceptance by the people of the New
Constitution they may also be considered.
IV
It is my sincere conviction that the Constitution of 1973 has been accepted
or adopted by the people. And on this premise, my considered opinion is
that the Court may no longer decide these cases on the basis of purely
legal considerations. Factors which are non-legal but nevertheless
ponderous and compelling cannot be ignored, for their relevancy is
inherent in the issue itself to be resolved.
In my opinion in the Plebiscite Cases, I joined my colleagues in holding that
the question of whether or not there was proper submission under
Presidential Decree No. 73 is justiciable, and I still hold that the propriety of
submission under any other law or in any other form is constitutionally a fit
subject for inquiry by the courts. The ruling in the decided cases relied
upon by petitioners are to this effect. In view, however, of the factual
background of the cases at bar which include ratification itself, it is
necessary for me to point out that when it comes to ratification, I am
persuaded that there should be a boundary beyond which the competence
of the courts no longer has any reason for being, because the other side is
exclusively political territory reserved for their own dominion by the
people.
The main basis of my opinion in the previous cases was acceptance by the
people. Others may feel there is not enough indication of such acceptance
in the record and in the circumstances the Court can take judicial notice of.
For my part, I consider it unnecessary to be strictly judicial in inquiring into
such fact. Being personally aware, as I have already stated, that the Citizens
Assemblies did meet and vote, if irregularly and crudely, it is not for me to
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resort, for the purposes of these cases, to judicial tape and measure, to
find out with absolute precision the veracity of the total number of votes
actually cast. After all, the claims that upon a comparison of conflicting
reports, cases of excess votes may be found, even if extrapolated will not,
as far as I can figure out, suffice to overcome the outcome officially
announced. Rather than try to form a conclusion out of the raw evidence
before Us which the parties did not care to really complete, I feel safer by
referring to the results announced in the proclamation itself. Giving
substantial allowances for possible error and downright manipulation, it
must not be overlooked that, after all, their having been accepted and
adopted by the President, based on official reports submitted to him in due
course of performance of duty of appropriate subordinate officials,
elevated them to the category of an act of a coordinate department of the
government which under the principle separation of powers is clothed with
presumptive correctness or at least entitled to a high degree of
acceptability, until overcome by better evidence, which in these cases does
not exist. In any event, considering that due to the unorthodoxy of the
procedure adopted and the difficulty of an accurate checking of all the
figures, I am unable to conceive of any manageable means of acquiring
information upon which to predicate a denial, I have no alternative but to
rely on what has been officially declared. At this point, I would venture to
express the feeling that if it were not generally conceded that there has
been sufficient showing of the acceptance in question by this time, there
would have been already demonstrative and significant indications of a
rather widespread, if not organized resistance in one form or another.
Much as they are to be given due recognition as magnificent
manifestations of loyalty and devotion to principles, I cannot accord to the
filing of these cases as indicative enough of the general attitude of the
people.
It is true that in the opinion I had the privilege of penning the Court in
Tolentino vs. Comelec, 41 SCRA 702, I made strong and unequivocal
pronouncements to the effect that any amendment to the Constitution of
1935, to be valid, must appear to have been made in strict conformity with
the requirements of Article XV thereof. What is more, that decision
asserted judicial competence to inquire into the matter of compliance or
non compliance as a justiciable matter. I still believe in the correctness of
those views and I would even add that I sincerely feel it reflects the spirit of
the said constitutional provision. Without trying to strain any point
however, I, submit the following considerations in the context of the
peculiar circumstances of the cases now at bar, which are entirely different
from those in the backdrop of the Tolentino rulings I have referred to.
1. Consider that in the present case what is involved is not just an
amendment of a particular provision of an existing Constitution; here, it is,
as I have discussed earlier above, an entirely new Constitution that is being
proposed. This important circumstance makes a great deal of difference.

No less than counsel Tolentino for herein respondents Puyat and Roy, who
was himself the petitioner in the case I have just referred to is, now inviting
Our attention to the exact language of Article XV and suggesting that the
said Article may be strictly applied to proposed amendments but may
hardly govern the ratification of a new Constitution. It is particularly
stressed that the Article specifically refers to nothing else but
"amendments to this Constitution" which if ratified "shall be valid as part
of this Constitution." Indeed, how can a whole new constitution be by any
manner of reasoning an amendment to any other constitution and how can
it, if ratified, form part of such other constitution? In fact, in the Tolentino
case I already somehow hinted this point when I made reference in the
resolution denying the motion for reconsideration to the fact that Article
XV must be followed "as long as any amendment is formulated and
submitted under the aegis of the present Charter." Said resolution even
added. "(T)his is not to say that the people may not, in the exercise of their
inherent revolutionary powers, amend the Constitution or promulgate an
entirely new one otherwise.".
It is not strange at all to think that the amending clause of a constitution
should be confined in its application only to proposed changes in any part
of the same constitution itself, for the very fact that a new constitution is
being adopted implies a general intent to put aside the whole of the old
one, and what would be really incongrous is the idea that in such an
eventuality, the new Constitution would subject its going into effect to any
provision of the constitution it is to supersede, to use the language
precisely of Section 6, Article XVII, the effectivity clause, of the New
Constitution. My understanding is that generally, constitutions are self-
born, they very rarely, if at all, come into being, by virtue of any provision
of another constitution. 3 This must be the reason why every constitution
has its own effectivity clause, so that if, the Constitutional Convention had
only anticipated the idea of the referendum and provided for such a
method to be used in the ratification of the New Constitution, I would have
had serious doubts as to whether Article XV could have had priority of
application.
2. When an entirely new constitution is proposed to supersede the existing
one, we cannot but take into consideration the forces and the
circumstances dictating the replacement. From the very nature of things,
the proposal to ordain a new constitution must be viewed as the most
eloquent expression of a people's resolute determination to bring about a
massive change of the existing order, a meaningful transformation of the
old society and a responsive reformation of the contemporary institutions
and principles. Accordingly, should any question arise as to its effectivity
and there is some reasonable indication that the new charter has already
received in one way or another the sanction of the people, I would hold
that the better rule is for the courts to defer to the people's judgment, so
long as they are convinced of the fact of their approval, regardless of the
form by which it is expressed provided it be reasonably feasible and
reliable. Otherwise stated, in such instances, the courts should not bother
about inquiring into compliance with technical requisites, and as a matter
of policy should consider the matter non-justiciable.
3. There is still another circumstance which I consider to be of great
relevancy. I refer to the ostensible reaction of the component elements,
both collective and individual, of the Congress of the Philippines. Neither
the Senate nor the House of Representatives has been reported to have
even made any appreciable effort or attempt to convene as they were
supposed to do under the Constitution of 1935 on January 22, 1973 for the
regular session. It must be assumed that being composed of experienced,
knowledgeable and courageous members, it would not have been difficult
for said parliamentary bodies to have conceived some ingenious way of
giving evidence of their determined adherence to the Constitution under
which they were elected. Frankly, much as I admire the efforts of the
handful of senators who had their picture taken in front of the padlocked
portals of the Senate chamber, I do not feel warranted to accord such act
as enough token of resistance. As counsel Tolentino has informed the
court, there was noting to stop the senators and the congressmen to meet
in any other convenient place and somehow officially organize themselves
in a way that can logically be considered as a session, even if nothing were
done than to merely call the roll and disperse. Counsel Tolentino even
pointed out that if there were not enough members to form a quorum, any
smaller group could have ordered the arrest of the absent members. And
with particular relevance to the present cases, it was not constitutionally
indispensable for the presiding officers to issue any call to the members to
convene, hence the present prayers for mandamus have no legal and
factual bases. And to top it all, quite to the contrary, the records of the
Commission on Elections show that at least 15 of 24 senators and over 95
out of less than 120 members of the House of Representatives, have
officially and in writing exercised the option given to them to join the
Interim National Assembly under the New Constitution, thereby
manifesting their acceptance of the new charter.
Now, having these facts in mind, and it being obvious that of the three
great departments of the government under the 1935 Constitution, two,
the Executive and the Legislative, have already accepted the New
Constitution and recognized its enforceability and enforcement, I cannot
see how this Supreme Court can by judicial fiat hold back the political
developments taking place and for the sake of being the guardian of the
Constitution and the defender of its integrity and supremacy make its
judicial power prevail against the decision of those who were duly chosen
by the people to be their authorized spokesmen and representatives. It is
not alone the physical futility of such a gesture that concerns me. More
than that, there is the stark reality that the Senators and the Congressmen,
no less than the President, have taken the same oath of loyalty to the
Constitution that we, the Justices, have taken and they are, therefore,
equally bound with Us to preserve and protect the Constitution. If as the
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representatives of the people, they have already opted to accept the New
Constitution as the more effective instrument for fulfillment of the national
destiny, I really wonder if there is even any idealistic worth in our
desperately clinging by Ourselves alone to Our sworn duty vis-a-vis the
1935 Constitution. Conscious of the declared objectives of the new
dispensation and cognizant of the decisive steps being with the least loss of
time, towards their accomplishment, cannot but feel apprehensive that
instead of serving the best interests of our people, which to me is in reality
the real meaning of our oath of office, the Court might be standing in the
way of the very thing our beloved country needs to retrieve its past glory
and greatness. In other words, it is my conviction that what these cases
demand most of all is not a decision demonstrative of our legal erudition
and Solomonic wisdom but an all rounded judgment resulting from the
consideration of all relevant circumstances, principally the political, or, in
brief, a decision more political than legal, which a court can render only by
deferring to the apparent judgment of the people and the announcement
thereof by the political departments of the government and declaring the
matter non-justiciable.
4. Viewed from the strictly legal angle and in the light of judicial methods
of ascertainment, I cannot agree with the Solicitor General that in the legal
sense, there has been at least substantial compliance with Article XV of the
1935 Constitution, but what I can see is that in a political sense, the
answers to the referendum questions were not given by the people as legal
conclusions. I take it that when they answered that by their signified
approval of the New Constitution, they do not consider it necessary to hold
a plebiscite, they could not have had in mind any intent to do what was
constitutionally improper. Basically accustomed to proceed along
constitutional channels, they must have acted in the honest conviction that
what was being done was in conformity with prevailing constitutional
standards. We are not to assume that the sovereign people were indulging
in a futile exercise of their supreme political right to choose the
fundamental charter by which their lives, their liberties and their fortunes
shall be safeguarded. In other words, we must perforce infer that they
meant their decision to count, and it behooves this Court to render
judgment herein in that context. It is my considered opinion that viewed
understandingly and realistically, there is more than sufficient ground to
hold that, judged by such intent and, particularly, from the political
standpoint, the ratification of the 1973 Constitution declared in
Proclamation 1102 complies substantially with Article XV of the 1935
Charter, specially when it is considered that the most important element of
the ratification therein contemplated is not in the word "election", which
conceivably can be in many feasible and manageable forms but in the word
"approved" which may be said to constitute the substantiality of the whole
article, so long as such approval is reasonably ascertained. In the last
analysis, therefore, it can be rightly said, even if only in a broad sense, that
the ratification here in question was constitutionally justified and
justifiable.

5. Finally, if any doubt should still linger as to the legitimacy of the New
Constitution on legal grounds, the same should be dispelled by viewing the
situation in the manner suggested by Counsel Tolentino and by the writer
of this opinion in his separate opinion, oft-referred to above, in the
Plebiscite Cases — that is, as an extra constitutional exercise by the people,
under the leadership of President Marcos, of their inalienable right to
change their fundamental charter by any means they may deem
appropriate, the moment they are convinced that the existing one is no
longer responsive to their fundamental, political and social needs nor
conducive to the timely attainment of their national destiny. This is not
only the teaching of the American Declaration of Independence but is
indeed, a truth that is self-evident. More, it should be regarded as implied
in every constitution that regardless of the language of its amending
clause, once the people have given their sanction to a new charter, the
latter may be deemed as constitutionally permissible even from the point
of view of the preceding constitution. Those who may feel restrained to
consider this view out of respect to the import of Tolentino vs.
Comelec, supra., would be well advised to bear in mind that the case was
decided in the context of submission, not accomplished ratification.
V agree, albeit my admiration and respect are all theirs for their zeal and
The language of the disputed amending clause of the 1935 Constitution
should not be deemed as the be all and end all the nation. More important
than even the Constitution itself with all its excellent features, are the
people living under it — their happiness, their posterity and their national
destiny. There is nothing that cannot be sacrificed in the pursuit of these
objectives, which constitute the totality of the reasons for national
existence. The sacred liberties and freedom enshrined in it and the
commitment and consecration thereof to the forms of democracy we have
hitherto observed are mere integral parts of this totality; they are less
important by themselves.
What seems to me to be bothering many of our countrymen now is that by
denying the present petitions, the Court would be deemed as sanctioning,
not only the deviations from traditional democratic concepts and principles
but also the qualified curtailment of individual liberties now being
practiced, and this would amount, it is feared, to a repudiation of our oath
to support and defend the Constitution of 1935. This is certainly something
one must gravely ponder upon. When I consider, however, that the
President, the Vice President, the members of both Houses of Congress,
not to speak of all executive departments and bureaus under them as well
as all the lower courts, including the Court of Appeals have already
accepted the New Constitution as an instrument of a meaningful
nationwide-all-level change in our government and society purported to
make more realistic and feasible, rather than idealistic and cumbersomely
deliberative, the attainment of our national aspirations, I am led to wonder
whether or not we, as members of the Supreme Court are being true to
our duty to our people by refusing to follow suit and accept the realities of
the moment, despite our being convinced of the sincerity and laudableness
of their objectives, only because we feel that by the people's own act of
ratifying the Constitution of 1935, they have so encased themselves within
its provisions and may, therefore, no longer take measures to redeem
themselves from the situation brought about by the deficiencies of the old
order, unless they act in strict conformity therewith. I cannot believe that
any people can be so stifled and enchained. In any event, I consider it a
God-given attribute of the people to disengage themselves, if necessary,
from any covenant that would obstruct their taking what subsequently
appears to them to be the better road to the promotion and protection of
their welfare. And once they have made their decision in that respect,
whether sophisticatedly or crudely, whether in legal form or otherwise,
certainly, there can be no court or power on earth that can reverse them.
I would not be human if I should be insensitive to the passionate and
eloquent appeals of Counsels Tañada and Salonga that these cases be
decided on the basis of conscience. That is exactly what I am doing. But if
counsel mean that only by granting their petitions can this Court be
worthily the bulwark of the people's faith in the government, I cannot
tenacity, their industry and wisdom, their patriotism and devotion to
principle. Verily, they have brought out everything in the Filipino that these
cases demand.
In times of national emergencies and crises, not arising from foreign
invasion, we need not fear playing opposite roles, as long as we are all
animated by sincere love of country and aim exclusively at the attainment
of the national destiny. Our heroes of the past, Rizal, Bonifacio, Aguinaldo,
Antonio Luna, Mabini and so also with our patriots of the recent
generations, Quezon, Osmeña, Roxas, Laurel and Recto, to mention only
some of them, had their differences of views — and they did not hesitate
to take diametrically opposing sides — that even reached tragic
proportions, but all of them are admired and venerated.
It is my faith that to act with absolute loyalty to our country and people is
more important than loyalty to any particular precept or provision of the
Constitution or to the Constitution itself. My oath to abide by the
Constitution binds me to whatever course of action I feel sincerely is
demanded by the welfare and best interests of the people.
In this momentous juncture of our history, what is imperative is national
unity. May God grant that the controversies the events leading to these
cases have entail will heal after the decision herein is promulgated, so that
all us Filipinos may forever join hands in the pursuit of our national destiny.
IN VIEW OF ALL THE FOREGOING, I vote to dismiss these petitions
for mandamus and prohibition without costs.
Page 108 of 158
MAKASIAR, J., concurring:
Assuming, without conceding, that Article XV of the 1935 Constitution
prescribes a procedure for the ratification of constitutional amendments or
of a new Constitution and that such procedure was no complied with, the
validity of Presidential Proclamation No. 1102 is a political, not a justiciable,
issue; for it is inseparably or inextricably link with and strikes at, because it
is decisive of, the validity of ratification and adoption of, as well as
acquiescence of people in, the 1973 Constitution and the legitimacy of the
government organized and operating thereunder. And being political, it is
beyond the ambit of judicial inquiry, tested by the definition of a political
question enunciated in Tañada, et. al. vs. Cuenco, et al. (103 Phil. 1051),
aside from the fact the this view will not do violence to rights vested under
the new Constitution, to international commitments forged pursuant
thereto and to decisions rendered by the judicial as well as quasi-judicial
tribunals organized and functioning or whose jurisdiction has been altered
by the 1973 Constitution and the government established thereunder, and
will dissipate any confusion in the minds of the citizenry, who have been
obeying the mandates of the new Constitution, as well as exercising the
rights and performing the obligations defined by the new Constitution, and
decrees and orders issued in implementation of the same and cooperating
with the administration in the renovation of our social, economic and
political system as re-structured by the 1973 Constitution and by the
implementing decrees and orders (see Miller vs. Johnson, 18 SW 522, 522-
526, 1892).
In 1957, Mr. Chief Justice Roberto Concepcion, then Associate Justice, in
behalf of the Court, defined a political question as one which, under the
Constitution, is "to be decided by the people in their sovereign capacity, or
in regard to which full discretionary authority had been delegated to the
Legislature or Executive branch of the government." (Tañada, et al. vs.
Cuenco, et al., supra).
Article XV of the 1935 Constitution provides: "Such amendments shall be
valid as part of this Constitution when approved by a majority of the votes
cast at an election at which the amendments are submitted to the people
for ratification." Under Article XV of the 1935 Constitution, the power to
propose constitutional amendments is vested in Congress or in a
constitutional convention; while the power to ratify or reject such
proposed amendments or new Constitution is reserved by the sovereign
people. The nullification of Proclamation No. 1102 would inevitably render
inoperative the 1973 Constitution, which is in fact the express prayer of the
petitioners in G.R. No. L-36164. Regardless of the modality of submission or
ratification or adoption — even if it deviates from or violates the procedure
delineated therefore by the old Constitution — once the new Constitution
is ratified, adopted and/or acquiesced in by the people or ratified even by a
body or agency not duly authorized therefor but is subsequently adopted
or recognized by the people and by the other official organs and

functionaries of the government established under such a new
Constitution, this Court is precluded from inquiring into the validity of such
ratification, adoption or acquiescence and of the consequent effectivity of
the new Constitution. This is as it should be in a democracy, for the people
are the repository of all sovereign powers as well as the source of all
governmental authority (Pole vs. Gray, 104 SO 2nd 841 [1958]). This basic
democratic concept is expressly restated in Section 1 of Article II of the
Declaration of Principles of the 1935 and 1973 Constitutions, thus:
"Sovereignty resides in the people and all government authority emanates
from them."
The legality of the submission is no longer relevant; because the
ratification, adoption and/or acquiescence by the people cures any
infirmity in its submission or any other irregularities therein which are
deemed mandatory before submission as they are considered merely
directory after such ratification or adoption or acquiescence by the people.
As Mr. Justice Brewer, then of the Kansas State Supreme Court and later
Associate Justice of the Federal Supreme Court, stated in re Prohibitory
Amendment Cases (24 Kansas 700 & 710 Reprint 499, 506): "The two
important, vital elements of the Legislature and a majority of the popular
vote. Beyond these, other provisions are mere machineries and forms. They
may not be disregarded, because by them certainty as to the essentials is
secured. But they are not themselves the essentials." (Cited in Larken vs.
Gronna, 285 NW 59, 61-64, 1939).
This was the ruling by the American Supreme Court in the 1939 case
of Coleman vs. Miller (307 U.S. 433, 83 L.ed. 1385), where Chief Justice
Hughes, speaking for the majority, stated that:
... Thus the political departments of the government
dealt with the effect of both previous rejection and
attempted withdrawal and determined that both were
ineffectual in the presence of an actual ratification ... .
This decision by the political departments of the
Government as to the validity of the adoption of the
Fourteenth amendment has been accepted.
We think that in accordance with this historic
precedent the question of the efficacy of ratifications
by state legislatures, in the light of previous rejection or
attempted withdrawal, should be regarded as a
political question pertaining to the political
departments, with the ultimate authority in the
Congress in the exercise of its control over the
promulgation of the adoption of the amendment.
This view was likewise emphasized by Mr. Justice Black in his concurring
opinion, in which Mr. Justices Roberts, Frankfurter, and Douglas join, thus:
The Constitution grants Congress exclusive power to
control submission of constitutional amendments. Final
determination by Congress that ratification by three-
fourths of the States has taken place "is conclusive
upon the courts." In the exercise of that power,
Congress, of course, is governed by the Constitution.
However, whether submission, intervening procedure
or Congressional determination of ratification conforms
to the commands of the Constitution, calls for decisions
by a "political department" of questions of a type which
this Court has frequently designated "political." And
decision of a "political question" by the "political
department" to which the Constitution has committed
it "conclusively binds the judges, as well as all other
officers, citizens and subjects of...government."
Proclamation under authority of Congress that an
amendment has been ratified will carry with it a solemn
assurance by the Congress that ratification has taken
place as the Constitution commands. Upon this
assurance a proclaimed amendment must be accepted
as a part of the Constitution, leaving to the judiciary its
traditional authority of interpretation. To the extent
that the Court's opinion in the present case even
impliedly assumes a power to make judicial
interpretation of the exclusive constitutional authority
of Congress over submission and ratification of
amendments, we are unable to agree... (American
Constitutional Issues, by Pritchett, 1962 Ed., p. 44).
The doctrine in the aforesaid case of Coleman vs. Miller was adopted by
Our Supreme Court in toto in Mabanag vs. Lopez Vito (78 Phil. 1).
The ruling in the cases of Gonzales vs. Comelec, et al. (L-28224, Nov. 29,
1967, 21 SCRA 774) and Tolentino vs. Comelec, et al. (L-34150, Oct. 16,
1971, 41 SCRA 702) on which petitioners place great reliance — that the
courts may review the propriety of a submission of a proposed
constitutional amendment before the ratification or adoption of such
proposed amendment by the sovereign people, hardly applies to the cases
at bar; because the issue involved in the aforesaid cases refers to only the
propriety of the submission of a proposed constitutional amendment to
the people for ratification, unlike the present petitions, which challenge
inevitably the validity of the 1973 Constitution after its ratification or
adoption thru acquiescence by the sovereign people. As heretofore stated,
it is specious and pure sophistry to advance the reasoning that the present
petitions pray only for the nullification of the 1973 Constitution and the
government operating thereunder.
It should be stressed that even in the Gonzales case, supra, We held that:
Page 109 of 158
Indeed, the power to amend the Constitution or to
propose amendments thereto is not included in the
general grant of legislative powers to Congress. It is
part of the inherent powers of the people — as the
repository of sovereignty in a republican state, such as
ours — to make, and hence, to amend their own
Fundamental Law. Congress may propose amendments
to the same explicitly grants such power. Hence, when
exercising the same, it is said that Senators and
Members of the House of Representatives act, not as
members, but as component elements of a constituent
assembly. When acting as such, the members
of Congress derive their authority from the
Constitution, unlike the people, when performing the
same function, for their authority does not emanate
from the Constitution — they are the very source of all
powers of government, including the Constitution itself.
(21 SCRA 787)
We did not categorically and entirely overturn the doctrine in Mabanag vs.
Lopez Vito (78 Phil. 1) that both the proposal to amend and the ratification
of such a constitutional amendment are political in nature forming as they
do the essential parts of one political scheme — the amending process. WE
merely stated therein that the force of the ruling in the said case
of Mabanag vs. Lopez Vito has been weakened by subsequent cases. Thus,
We pronounced therein:
It is true that in Mabanag vs. Lopez Vito, this Court
characterizing the issue submitted thereto as a political
one, declined to pass upon the question whether or not
a given number of votes cast in Congress in favor of a
proposed amendment to the Constitution — which was
being submitted to the people for ratification —
satisfied the three fourths vote requirement of the
fundamental law. The force of this precedent has been
weakened, however, by Suanes vs. Chief Accountant of
the Senate, Avelino vs. Cuenco, Tañada vs. Cuenco and
Macias vs. Commission on Elections. In the first, we
held the officers and employees of the Senate Electoral
Tribunal are supervision and control, not of that of the
Senate President, claimed by the latter; in the second,
this Court proceeded to determine the number of
Senators necessary for a quorum in the Senate; in the
third we nullified the election, by Senators belonging to
the party having the largest number of votes in said
chamber purporting to act on behalf of the party
having the second largest number of votes therein, of
two (2) Senators belonging to the first party, as

members, for the second party, of the Senate Electoral
Tribunal; and in the fourth, we declared
unconstitutional an act of Congress purporting to
apportion the representative districts for the House of
Representatives, upon the ground that the
apportionment had not been made as may be possible
according to the number of inhabitants of each
province. Thus we rejected the theory advanced in
these four (4) cases, that the issues therein raised were
political questions the determination of which is
beyond judicial review. (21 SCRA pp. 785-786);
for which reason We concluded
In short, the issue whether or not a resolution of
Congress before acting as a constituent assembly —
violates the Constitution is essentially justiciable, not
political, and, hence, subject to judicial review, and to
the extent that this view may be inconsistent with the
stand taken in Mabanag vs. Lopez Vito, the latter
should be deemed modified accordingly. (p. 787,
emphasis supplied.)
In the Tolentino case, supra, We reiterated the foregoing statements (41
SCRA 703-714).
The inevitable consequence therefore is that the validity of the ratification
or adoption of or acquiescence by the people in the 1973 Constitution,
remains a political issue removed from the jurisdiction of this Court to
review.
One more word about the Gonzales and Tolentino cases. Both primarily
stressed on the impropriety of the submission of a proposed constitutional
amendment. Courts do not deal with propriety or wisdom or absence of
either of an official act or of a law. Judicial power concerns only with the
legality or illegality, constitutionality or unconstitutionality of an act: it
inquires into the existence of power or lack of it. Judicial wisdom is not to
be pitted against the wisdom of the political department of the
government.
The classic example of an illegal submission that did not impair the validity
of the ratification or adoption of a new Constitution is the case of the
Federal Constitution of the United States. It should be recalled that the
thirteen (13) original states of the American Union — which succeeded in
liberating themselves from England after the revolution which began on
April 19, 1775 with the skirmish at Lexington, Massachusetts and ended
with the surrender of General Cornwallis at Yorktown, Virginia, on October
19, 1781(Encyclopedia Brit., Vol. I, 1933 Ed., p. 776) — adopted their
Articles of Confederation and Perpetual Union, that was written from 1776
to 1777 and ratified on March 1, 1781 (Encyclopedia Brit., Vol. II, 1966 Ed.,
p. 525). About six thereafter, the Congress of the Confederation passed a
resolution on February 21, 1787 calling for a Federal Constitutional
Convention "for the sole and express purpose of revising the articles of
confederation ... ." (Appendix I, Federalist, Modern Library ed., p. 577,
emphasis supplied).
The Convention convened at Philadelphia on May 14, 1787. Article XIII of
the Articles of Confederation and Perpetual Union stated specifically:
The articles of this confederation shall be inviolably
observed in every state, and the union shall be
perpetual; nor shall any alterations at any time
hereafter be made in any of them; unless such
alteration be agreed to in a congress of the united
states, and be afterwards confirmed by the legislatures
of every state. (See the Federalist, Appendix II, Modern
Library Ed., 1937, p. 584; emphasis supplied.)
But the foregoing requirements prescribed by the Articles of Confederation
and Perpetual Union for the alteration for the ratification of the Federal
Constitution as drafted by the Philadelphia Convention were not followed.
Fearful the said Federal Constitution would not be ratified by the
legislatures as prescribed, the Philadelphia Convention adopted a
resolution requesting the Congress of the Confederation to pass a
resolution providing that the Constitution should be submitted to elected
state conventions and if ratified by the conventions in nine (9) states, not
necessarily in all thirteen (13) states, the said Constitution shall take effect.
Thus, history Professor Edward Earle Mead of Princeton University
recorded that:
It would have been a counsel of perfection to consign
the new constitution to the tender mercies of the
legislatures of each and all of the 13 states. Experience
clearly indicated that ratification then would have had
the same chance as the scriptural camel passing
through the eye of a needle. It was therefore
determined to recommend to Congress that the new
Constitution be submitted to conventions in the several
states especially elected to pass upon it and that,
furthermore, the new government should go into effect
if and when it should be ratified by nine of the thirteen
states ... . (The Federalist, Modern Library Ed., 1937,
Introduction by Edward Earle Mead, pp. viii-ix;
emphasis supplied)
Page 110 of 158
Historian Samuel Eliot Morison similarly recounted:
The Convention, anticipating that the influence of many
state politicians would be Antifederalist, provided for
ratification of the Constitution by popularly elected
conventions in each state. Suspecting that Rhode
Island, at least, would prove recalcitrant, it declared
that the Constitution would go into effect as soon as
nine states ratified. The convention method had the
further advantage that judges, ministers, and others
ineligible to state legislatures, could be elected to a
convention. The nine-state provision was, of course,
mildly revolutionary. But the Congress of the
Confederation, still sitting in New York to carry on
federal government until relieved, formally submitted
the new constitution to the states and politely faded
out before the first presidential inauguration. (The
Oxford History of the Am. People, by Samuel Eliot
Morison, 1965 ed., p. 312).
And so the American Constitution was ratified by nine (9) states on June
21, 1788 and by the last four states on May 29, 1790 (12 C.J. p. 679
footnote, 16 C.J.S., 27. — by the state conventions and not by all thirteen
(13) state legislatures as required by Article XIII of the Articles of
Confederation and Perpetual Union aforequoted — and in spite of the fact
that the Federal Constitution as originally adopted suffers from two basic
infirmities, namely, the absence of a bill of Rights and of a provision
affirming the power of judicial review.
The liberties of the American people were guaranteed by subsequent
amendments to the Federal Constitution. The doctrine of judicial review
has become part of American constitutional law only by virtue of a judicial
pronouncement by Chief Justice Marshall in the case of Marbury vs.
Madison (1803, 1 Cranch 137).
Until this date, no challenge has been launched against the validity of the
ratification of the American Constitution, nor against the legitimacy of the
government organized and functioning thereunder.
In the 1946 case of Wheeler vs. Board of Trustees (37 SE 2nd 322, 326-330),
which enunciated the principle that the validity of a new or revised
Constitution does not depend on the method of its submission or
ratification by the people, but on the fact or fiat or approval or adoption or
acquiescence by the people which fact of ratification or adoption or
acquiescence is all that is essential, the Court cited precisely the case of the
irregular revision and ratification by state conventions of the Federal
Constitution, thus:

No case identical in its facts with the case now under
consideration has been called to our attention, and we
have found none. We think that the principle which we
apply in the instant case was very clearly applied in the
creation of the constitution of the United States. The
convention created by a resolution of Congress had
authority to do one thing, and one only, to wit, amend
the articles of confederation. This they did not do, but
submitted to the sovereign power, the people, a new
constitution. In this manner was the constitution of the
United States submitted to the people and it became
operative as the organic law of this nation when it had
been properly adopted by the people.
Pomeroy's Constitutional Law, p. 55, discussing the
convention that formulated the constitution of the
United States, has this to say: "The convention
proceeded to do, and did accomplish, what they were
not authorized to do by a resolution of Congress that
called them together. That resolution plainly
contemplated amendments to the articles of
confederation, to be submitted to and passed by the
Congress, and afterwards ratified by all the State
legislatures, in the manner pointed out by the existing
organic law. But the convention soon became convinced
that any amendments were powerless to effect a cure;
that the disease was too deeply seated to be reached
such tentative means. They saw that the system they
were called to improve must be totally abandoned, and
that the national idea must be re-established at the
center of their political society. It was objected by some
members, that they had no power, no authority, to
construct a new government. They had no authority, if
their decisions were to be final; and no authority
whatsoever, under the articles of confederation, to
adopt the course they did. But they knew that their
labors were only to be suggestions; and that they as
well as any private individuals, and any private
individuals as well as they, had a right to propose a plan
of government to the people for their adoption. They
were, in fact, a mere assemblage of private citizens,
and their work had no more binding sanction than a
constitution drafted by Mr. Hamilton in his office would
have had. The people, by their expressed will,
transformed this suggestion, this proposal, into an
organic law, and the people might have done the same
with a constitution submitted to them by a single
citizen."
xxx xxx xxx
... When the people adopt a completely revised or new
constitution, the framing or submission of the
instrument is not what gives it binding force and effect.
The fiat of the people and only the fiat of the people,
can breathe life into a constitution.
xxx xxx xxx
... We do not hesitate to say that a court is never
justified in placing by implication a limitation upon the
sovereign. This would be an authorized exercise of
sovereign power by the court. In State v. Swift, 69 Ind.
505, 519, the Indiana Supreme Court said: "The people
of a State may form an original constitution, or
abrogate an old one and form a new one, at any time,
without any political restriction except the constitution
of the United States; ... ." (37 SE 327-328, 329,
emphasis supplied.)
In the 1903 case of Weston vs. Ryan, the Court held:
It remains to be said that if we felt at liberty to pass
upon this question, and were compelled to hold that
the act of February 23, 1887, is unconstitutional and
void, it would not, in our opinion, by any means follow
that the amendment is not a part of our state
Constitution. In the recent case of Taylor vs.
Commonwealth (Va.) 44 S.E. 754, the Supreme Court of
Virginia hold that their state Constitution of 1902,
having been acknowledged and accepted by the officers
administering the state government, and by the people,
and being in force without opposition, must be
regarded as an existing Constitution irrespective of the
question as to whether or not the convention which
promulgated it had authority so to do without
submitting it to a vote of the people. In Brittle v. People,
2 Neb. 198, is a similar holding as to certain provisions
of the Nebraska Constitution of 1886, which were
added by the Legislature at the requirement of
Congress, though never submitted to the people for
their approval." (97 NW 349-350; emphasis supplied).
Against the decision in the Wheeler case, supra, confirming the validity of
the ratification and adoption of the American Constitution, in spite of the
fact that such ratification was in clear violation of the prescription on
Page 111 of 158
alteration and ratification of the Articles of Confederation and Perpetual
Union, petitioners in G.R. No. L-36165 dismissed this most significant
historical fact by calling the Federal Constitution of the United States as a
revolutionary one, invoking the opinion expressed in Vol. 16, Corpus Juris
Secundum, p. 27, that it was a revolutionary constitution because it did not
obey the requirement that the Articles of Confederation and Perpetual
Union can be amended only with the consent of all thirteen (13) state
legislatures. This opinion does not cite any decided case, but merely refers
to the footnotes on the brief historic account of the United States
Constitution on p. 679 of Vol. 12, CJS. Petitioners, on p. 18 of their main
Notes, refer US to pp. 270-316 of the Oxford History of the American
People, 1965 Ed. by Samuel Eliot Morison, who discusses the Articles of
Confederation and Perpetual Union in Chapter XVIII captioned
"Revolutionary Constitution Making, 1775 1781" (pp. 270-281). In Chapter
XX on "The Creative Period in Politics, 1785-1788," Professor Morison
delineates the genesis of the Federal Constitution, but does not refer to it
even implicitly as revolutionary constitution (pp. 297-316). However, the
Federal Constitution may be considered revolutionary from the view point
of McIver if the term revolution is understood in "its wider sense to
embrace decisive changes in the character of government, even though
they do not involve the violent overthrow of an established order, ... ."
(R.M. MacIver, The Web of Government, 1965 ed., p. 203).
It is rather ridiculous to refer to the American Constitution as a
revolutionary constitution. The Articles of Confederation and Perpetual
Union that was in force from July 12, 1776 to 1788, forged as it was during
the war of independence was a revolutionary constitution of the thirteen
(13) states. In the existing Federal Constitution of the United States which
was adopted seven (7) or nine (9) years after the thirteen (13) states won
their independence and long after popular support for the government of
the Confederation had stabilized was not a product of a revolution. The
Federal Constitution was a "creation of the brain and purpose of man" in
an era of peace. It can only be considered revolutionary in the sense that it
is a radical departure from its predecessor, the Articles of Confederation
and Perpetual Union.
It is equally absurd to affirm that the present Federal Constitution of the
United States is not the successor to the Articles of Confederation and
Perpetual Union. The fallacy of the statement is so obvious that no further
refutation is needed.
As heretofore stated, the issue as to the validity of Proclamation No. 1102
strikes at the validity and enforceability of the 1973 Constitution and of the
government established and operating thereunder. Petitioners pray for a
declaration that the 1973 Constitution is inoperative (L-36164). If
Proclamation No. 1102 is nullified, then there is no valid ratification of the
1973 Constitution and the inevitable conclusion is that the government
organized and functioning thereunder is not a legitimate government.

That the issue of the legitimacy of a government is likewise political and
not justiciable, had long been decided as early as the 1849 case of Luther
vs. Borden (7 How. 1, 12 L.ed., 581), affirmed in the 1900 case of Taylor vs.
Beckham (178 U.S. 548, 44 L.ed. 1187) and re-enunciated in 1912 in the
case of Pacific States Telephone and Telegraph Company vs. Oregon (223
U.S. 118, 133-151, 56 L.ed. 377-386). Because it reaffirmed the
pronouncements in both Borden and Beckham cases, it is sufficient for us
to quote the decision in Pacific States Telephone and Telegraph Co., supra,
penned by Mr. Chief Justice White, who re-stated:
In view of the importance of the subject, the apparent
misapprehension on one side and seeming
misconception on the other, suggested by the
argument as to the full significance of the previous
doctrine, we do not content ourselves with a mere
citation of the cases, but state more at length than we
otherwise would the issues and the doctrine expounded
in the leading and absolutely controlling case — Luther
v. Borden, 7 How. 1, 12 L.ed. 581.
xxx xxx xxx
... On this subject it was said (p. 38):
"For if this court is authorized to enter upon this
inquiry, proposed by the plaintiff, and it should be
decided that the character government had no legal
existence during the period of time above mentioned,
— if it had been annulled by the adoption of the
opposing government, — then the laws passed by its
legislature during that time were nullities; its taxes
wrongfully collected, its salaries and compensations to
its officers illegally paid ; its public accounts improperly
settled and the judgments and sentences of its courts in
civil and criminal cases null and void, and the officers
who carried their decisions into operation answerable
as trespassers, if not in some cases as criminals."
xxx xxx xxx
"The fourth section of the fourth article of the
Constitution of the United States shall guarantee to
every state in the Union a republican form of
government, and shall protect each of them against
invasion; and on the application of the Legislature or of
the Executive (when the legislature cannot be
convened) against domestic violence.
"Under this article of the Constitution it rests with
Congress to decide what government is established one
in a state. For, as the United State guarantee to each
state a republican government, Congress must
necessarily decide what government is established in
the state before it can determine whether it is
republican or not. And when the senators and
representatives of a state are admitted into the
Councils of the Union, the authority of the government
under which they were appointed, as well as its
republican character, is recognized by the proper
constitutional authority. And its decision is binding on
every other department of the government, and could
not be questioned in a judicial tribunal. It is true that
the contest in this case did not last long enough to
bring the matter to this issue; and as no senators or
representatives were elected under the authority of
the government of which Mr. Dorr was the head,
Congress was not called upon to decide the
controversy. Yet the right to decide is placed there and
not in the courts."
xxx xxx xxx
... We do not stop to cite other cases which indirectly or
incidentally refer to the subject, but conclude by
directing attention to the statement by the court,
speaking through Mr. Chief Justice Fuller, in Taylor vs.
Beckham, 178 U.S. 548, 44 L.ed. 1187, 20 Sup. Ct. Rep.
890, 1009, where, after disposing of a contention made
concerning the 14th Amendment, and coming to
consider a proposition which was necessary to be
decided concerning the nature and effect of the
guaranty of S 4 of article 4, it was said (p. 578):
"But it is said that the 14th Amendment must be read
with S 4 of article 4, of the Constitution, providing that
the United States shall guarantee to every state in this
Union a republican form of government, and shall
protect each of them against invasion; and on
application of the legislature, or the Executive (when
the legislature cannot be convened), against domestic
violence."
xxx xxx xxx
"It was long ago settled that the enforcement of this
guaranty belonged to the political department. Luther
Page 112 of 158
v. Borden, 7 How. 1, 12 L.ed. 581. In that case it was
held that the question, which of the two opposing
governments of Rhode Island, namely, the charter
government or the government established by a
voluntary convention, was the legitimate one, was a
question for the determination of the political
department; and when that department had decided,
the courts were bound to take notice of the decision
and follow it."
xxx xxx xxx
As the issues presented, in their very essence, are,
and have long since by this Court been, definitely
determined to be political and governmental, and
embraced within the scope of the scope of the powers
conferred upon Congress, and not, therefore within the
reach of judicial power, it follows that the case
presented is not within our jurisdiction, and the writ of
error must therefore be, and it is, dismissed for want of
jurisdiction. (223 U.S. pp. 142-151; emphasis supplied).
Even a constitutional amendment that is only promulgated by the
Constitutional Convention without authority therefor and without
submitting the same to the people for ratification, becomes valid, when
recognized, accepted and acted upon the by Chief of State and other
government functionaries, as well as by the people. In the 1903 case
of Taylor vs. Commonwealth (44 SE 754-755), the Court ruled:
The sole ground urged in support of the contention
that Constitution proclaimed in 1902 is invalid is that it
was ordained and promulgated by the convention
without being submitted for ratification or rejection by
the people of the commonwealth.
The Constitution of 1902 was ordained and proclaimed
by convention duly called by direct vote of the people
of the state to revise and amend the Constitution of
1869. The result of the work that the convention has
been recognized, accepted, and acted upon as the only
valid Constitution of the state by the Governor in
swearing fidelity to it and proclaiming it, as directed
thereby; by the Legislature in its formal official act
adopting a joint resolution, July 15, 1902, recognizing
the Constitution ordained by the convention which
assembled in the city of Richmond on the 12th day of
June 1901, as the Constitution of Virginia; by the
individual oaths of members to support it, and by its

having been engaged for nearly a year in legislating
under it and putting its provisions into operation but
the judiciary in taking the oath prescribed thereby to
support and by enforcing its provisions; and by the
people in their primary capacity by peacefully accepting
it and acquiescing in it, registering as voters under it to
the extent of thousands through the state, and by
voting, under its provisions, at a general election for
their representatives in the Congress of the United
States. (p. 755).
The Court in the Taylor case above-mentioned further said:
While constitutional procedure for adoption or
proposal to amend the constitution must be duly
followed, without omitting any requisite steps, courts
should uphold amendment, unless satisfied that the
Constitution was violated in submitting the proposal.
... Substance more than form must be regarded in
considering whether the complete constitutional system
for submitting the proposal to amend the constitution
was observed.
In the 1925 case of Taylor vs. King (130 A 407, 408 410), the Court stated:
There may be technical error in the manner in which a
proposed amendment is adopted, or in its
advertisement, yet, if followed, unobjected to, by
approval of the electors, it becomes part of the
Constitution. Legal complaints to the submission may
be made prior to taking the vote, but, if once
sanctioned, the amendment is embodied therein, and
cannot be attacked, either directly or collaterally,
because of any mistake antecedent thereto. Even
though it be submitted at an improper time, it is
effective for all purposes when accepted by the
majority. Armstrong v. King, 281 Pa. 207, 126 A. 263.
(130 A 409).
Even if the act of the Constitutional Convention is beyond its authority,
such act becomes valid upon ratification or adoption or acquiescence by
the people. Thus, in the 1905 case of Ex parte Birmingham and A.R.
Company (42 SO pp. 118 & 123), the Alabama Supreme Court upheld this
principle and stated that: "The authorities are almost uniform that this
ratification of an unauthorized act by the people (and the people are the
principal in this instance) renders the act valid and binding."
It has likewise been held that it is not necessary that voters ratifying the
new Constitution are registered in the book of voters; it is enough that they
are electors voting on the new Constitution. (Bott vs. Wurts, 40 A 740
[1899]; 45 LRA 251, emphasis supplied).
In the 1956 case of Thomson vs. Peoples State Bank (75 NW 2nd 370, 375),
the Supreme Court of Wisconsin ruled that "irregularity in the procedure
for the submission of the proposed constitutional amendment will not
defeat the ratification by the people."
Again, in the 1958 case of Swaim vs. Tuscaloosa County (103 SO 2nd 769),
the Alabama Supreme Court pronounced that "the irregularity in failing to
publish the proposed constitutional amendment once in each of the 4
calendar weeks next preceding the calendar week in which the election
was held or once in each of the 7-day periods immediately preceding the
day of the election as required by the Constitution, did not invalidate the
amendment which was ratified by the people."
The same principle was reiterated in 1961 by the Mississippi Supreme Court
in Barnes, et al. v. Ladner (131) SO 2nd 45 462), where they admitted
irregularities or illegalities committed in the procedure for submission of
the proposed constitutional amendment to the people for ratification
consisted of: "(a) the alleged failure of the county election commissioners
of the several counties to provide a sufficient number of ballot boxes
'secured by good and substantial locks,' as provided by Section 3249, Code
of 1942, Rec., to be used in the holding of the special election on the
constitutional amendment, and (b) the alleged failure of the State Election
Commissioners to comply with the requirements of Code Sections 3204
and 3205 in the appointment of election commissioners in each of the 82
counties. The irregularities complained of, even if proved, were not such
irregularities would have invalidated the election." (Emphasis supplied; see
also Sylvester vs. Tindall, 8 SO 2nd 892; 154 Fla. 663).
Even prior to the election in November, 1970 of delegates of the
Constitutional Convention and during the deliberations of the
Constitutional Convention from June 1, 1971 until martial law was
proclaimed on Sept. 21, 1972, the salient reforms contained in the 1973
Constitution which have long been desired by the people, had been
thoroughly discussed in the various committees of the Constitutional
Convention, on the floor of the Convention itself, in civic forums and in all
the media of information. Many of the decrees promulgated by the Chief
Executive from Sept. 22, 1972 to Jan. 17, 1973 implement some of the
reforms and had been ratified in Sec. 3(2) of Article XVII of the 1973
Constitution.
Petitioners cannot safely state that during martial law the majority of the
people cannot freely vote for these reforms and are not complying with the
implementing decrees promulgated by the President.
Page 113 of 158
Free election is not inevitably incompatible with martial law. We had free
elections in 1951 and 1971 when the opposition won six out of eight
senatorial seats despite the suspension of the privileges of the writ
of habeas corpus(see Lansang vs. Garcia, et al., Dec. 14, 1971, 42 SCRA
448), which suspension implies constraint on individual freedom as the
proclamation of martial law. In both situations, there is no total blackout of
human rights and civil liberties.
All the local governments, dominated either by Nacionalistas or Liberals, as
well as officials of the Legislative and Executive branches of the
government elected and/or appointed under the 1935 Constitution have
either recognized or are now functioning under the 1973 Constitution,
aside from the fact of its ratification by the sovereign people through the
Citizens Assemblies. Ninety-five (95) of a total of one hundred ten (110)
members of the House of Representatives including the Speaker and the
Speaker Pro Tempore as well as about eleven (11) Congressmen who
belong to the Liberal Party and fifteen (15) of a total of twenty-four (24)
senators including Liberal senators Edgar U. Ilarde and John Osmeña opted
to serve in the Interim Assembly, according to the certification of the
Commission on Elections dated February 19, 1973 (Annex Rejoinder-3 to
Consolidated Rejoinder of petitioners in L-36165). Only the five (5)
petitioners in L-36165 close their eyes to a fait accompli. All the other
functionaries recognize the new government and are performing their
duties and exercising their powers under the 1973 Constitution, including
the lower courts. The civil courts, military tribunals and quasi-judicial
bodies created by presidential decrees have decided some criminal, civil
and administrative cases pursuant to such decrees. The foreign
ambassadors who were accredited to the Republic of the Philippines
before martial law continue to serve as such in our country; while two new
ambassadors have been accepted by the Philippines after the ratification of
the 1973 Constitution on January 17, 1973. Copies of the 1973 Constitution
had been furnished the United Nations Organization and practically all the
other countries with which the Philippines has diplomatic relations. No
adverse reaction from the United Nations or from the foreign states has
been manifested. On the contrary, our permanent delegate to the United
Nations Organization and our diplomatic representatives abroad appointed
before martial law continue to remain in their posts and are performing
their functions as such under the 1973 Constitution.
Even the Commission on Elections is now implementing the provisions of
the 1973 Constitution by requiring all election registrars to register 18-year
olds and above whether literates or not, who are qualified electors under
the 1973 Constitution (see pars. 1-A(c), (d), & (e) of Annex A to Notes of
respondents Puyat and Roy in L-36165).
In brief, it cannot be said that the people are ignoring the 1973
Constitution and the government which is enforcing the same for over 10
weeks now With the petitioners herein, secessionists, rebels and

subversives as the only possible exceptions, the rest of the citizenry are
complying with decrees, orders and circulars issued by the incumbent
President implementing the 1973 Constitution.
Of happy relevance on this point is the holding in Miller vs. Johnson 18 SW
522:
If a set of men, not selected by the people according to
the forms of law, were to formulate an instrument and
declare it the constitution, it would undoubtedly be the
duty of the courts declare its work a nullity. This would
be revolution, and this the courts of the existing
government must resist until they are overturned by
power, and a new government established. The
convention, however, was the offspring of law. The
instrument which we are asked to declare invalid as a
constitution has been made and promulgated according
to the forms of law. It is a matter of current history that
both the executive and legislative branches of the
government have recognized its validity as a
constitution, and are now daily doing so. Is the
question, therefore, one of a judicial character? It is our
undoubted duty, if a statute be unconstitutional to so
declare it; also, if a provision of the state constitution
be in conflict with the federal constitution, to hold the
former invalid. But this is a very different case. It may
be said, however, that, for every violation of or non-
compliance with the law, there should be a remedy in
the courts. This is not, however, always the case. For
instance, the power of a court as to the acts of the
other departments of the government is not an
absolute one, but merely to determine whether they
have kept within constitutional limits, it is a duty rather
than a power, The judiciary cannot compel a co-equal
department to perform a duty. It is responsible to the
people; but if it does act, then, when the question is
properly presented, it is the duty of the court to say
whether it has conformed to the organic law. While the
judiciary should protect the rights of the people with
great care and jealousy, because this is its duty, and
also because, in times of great popular excitement, it is
usually their last resort, yet it should at the same time
be careful to overstep the proper bounds of its power,
as being perhaps equally dangerous; and especially
where such momentous results might follow as would
be likely in this instance, if the power of the judiciary
permitted, and its duty required, the overthrow of the
work of the convention.
After the American Revolution the state of Rhode
Island retained its colonial character as its constitution,
and no law existed providing for the making of a new
one. In 1841 public meetings were held, resulting in the
election of a convention to form a new one, — to be
submitted to a popular vote. The convention framed
one, submitted it to a vote, and declared it adopted.
Elections were held for state officers, who proceeded
to organize a new government. The charter
government did not acquiesce in these proceedings,
and finally declared the state under martial law. It
called another convention, which in 1843 formed a new
constitution. Whether the charter government, or the
one established by the voluntary convention, was the
legitimate one, was uniformly held by the courts of the
state not to be a judicial, but a political question; and
the political department having recognized the one, it
was held to be the duty of the judiciary to follow its
decision. The supreme court of the United States, in
Luther v. Borden, 7 How. 1, while not expressly deciding
the principle, as it held the federal court, yet in the
argument approves it, and in substance says that where
the political department has decided such a matter the
judiciary should abide by it.
Let us illustrate the difficulty of a court deciding the
question: Suppose this court were to hold that the
convention, when it reassembled, had no power to
make any material amendment, and that such as were
made are void by reason of the people having
theretofore approved the instrument. Then, next, this
court must determine what amendments were
material; and we find the court, in effect, making a
constitution. This would be arrogating sovereignty to
itself. Perhaps the members of the court might differ as
to what amendments are material, and the result
would be confusion and anarchy. One judge might say
that all the amendments, material and immaterial,
were void; another, that the convention had then the
implied power to correct palpable errors, and then the
court might differ as to what amendments are material.
If the instrument as ratified by the people could not be
corrected or altered at all, or if the court must
determine what changes were material, then the
instrument, as passed upon by the people or as fixed by
the court would be lacking a promulgation by the
convention; and, if this be essential, then the question
would arise, what constitution are we now living under,
and what is the organic law of the state? A suggestion
Page 114 of 158
of these matters shows what endless confusion and
harm to the state might and likely would arise. If,
through error of opinion, the convention exceeded its
power, and the people are dissatisfied, they have ample
remedy, without the judiciary being asked to overstep
the proper limits of its power. The instrument provides
for amendment and change. If a wrong has been done,
it can, in the proper way in which it should be remedied,
is by the people acting as a body politic. It is not a
question of whether merely an amendment to a
constitution, made without calling a convention, has
been adopted, as required by that constitution. If it
provides how it is to be done, then, unless the manner
be followed, the judiciary, as the interpreter of that
constitution, will declare the amendment
invalid. Koehler v. Hill, 60 Iowa, 543, 14 N.W. Rep. 738,
and 15 N.W. Rep. 609; State v. Tuffy, 1 Nev. 391, 12
Pac. Rep. 835. But it is a case where a new constitution
has been formed and promulgated according to the
forms of law. Great interests have already arisen under
it; important rights exist by virtue of it; persons have
been convicted of the highest crime known to the law,
according to its provisions; the political power of the
government has in many ways recognized it; and, under
such circumstances, it is our duty to treat and regard it
as a valid constitution, and now the organic law of our
commonwealth.
We need not consider the validity of the amendments
made after the convention reassembled. If the making
of them was in excess of its powers, yet, as the entire
instrument has been recognized as valid in the manner
suggested, it would be equally an abuse of power by
the judiciary and violative of the rights of the people, —
who can and properly should remedy the matter, if not
to their liking, — if it were to declare the instrument of
a portion invalid, and bring confusion and anarchy upon
the state. (emphasis supplied).
If this Court inquires into the validity of Proclamation No. 1102 and
consequently of the adoption of the 1973 Constitution it would be
exercising a veto power on the act of the sovereign people, of whom this
Court is merely an agent, which to say the least, would be anomalous. This
Court cannot dictate to our principal, the sovereign people, as to how the
approval of the new Constitution should be manifested or expressed. The
sovereign people have spoken and we must abide by their decision,
regardless of our notion as to what is the proper method of giving assent to
the new Charter. In this respect, WE cannot presume to know better than

the incumbent Chief Executive, who, unlike the members of this Court,
only last January 8, 1973, We affirmed in Osmeña vs. Marcos (Pres. Election
Contest No. 3, Jan. 8, 1973), was re-elected by the vote of over 5 million
electors in 1969 for another term of four years until noon of December 30,
1973 under the 1935 Constitution. This Court, not having a similar mandate
by direct fiat from the sovereign people, to execute the law and administer
the affairs of government, must restrain its enthusiasm to sally forth into
the domain of political action expressly and exclusively reserved by the
sovereign people themselves.
The people in Article XV of the 1935 Constitution did not intend to tie their
hands to a specific procedure for popular ratification of their organic law.
That would be incompatible with their sovereign character of which We are
reminded by Section 1, of Article II of both the 1935 and the 1973
Constitutions.
The opinion of Judge Thomas McIntire Cooley that the sovereign people
cannot violate the procedure for ratification which they themselves define
in their Constitution, cannot apply to a unitary state like the Republic of the
Philippines. His opinion expressed in 1868 may apply to a Federal State like
the United States, in order to secure and preserve the existence of the
Federal Republic of the United States against any radical innovation
initiated by the citizens of the fifty (50) different states of the American
Union, which states may be jealous of the powers of the Federal
government presently granted by the American Constitution. This
dangerous possibility does not obtain in the case of our Republic.
Then again, Judge Cooley advanced the aforesaid opinion in 1868 when he
wrote his opus "Constitutional Limitations." * (Vol. 6, Encyclopedia Brit.,
1969 ed. pp. 445 446). It is possible that, were he live today, in a milieu
vastly different from 1868 to 1898, he might have altered his views on the
matter.
Even if conclusiveness is to be denied to the truth of the declaration by the
President in Proclamation No. 1102 that the people through their Citizens'
Assemblies had overwhelmingly approved the new Constitution due regard
to a separate, coordinate and co-equal branch of the government demands
adherence to the presumption of correctness of the President's
declaration. Such presumption is accorded under the law and
jurisprudence to officials in the lower levels of the Executive branch, there
is no over-riding reason to deny the same to the Chief of State as head of
the Executive Branch. WE cannot reverse the rule on presumptions,
without being presumptuous, in the face of the certifications by the Office
the Secretary of the Department of Local Government and Community
Development. (Annexes 1, to 1-E, Annexes 2 to 2-O to the compliance with
manifestation filed by the Solicitor General on behalf of the respondents
public officers dated March 7, 1973). There is nothing in the records that
contradicts, much less overthrow the results of the referendum as
certified. Much less are We justified in reversing the burden of proof — by
shifting it from the petitioners to the respondents. Under the rules on
pleadings, the petitioners have the duty to demonstrate by clear and
convincing evidence their claim that the people did not ratify through the
Citizens' Assemblies nor adopt by acquiescence the 1973 Constitution. And
have failed to do so.
No member of this Tribunal is justified in resolving the issues posed by the
cases at bar on the basis of reports relayed to him from private sources
which could be biased and hearsay, aside from the fact that such reports
are not contained in the record. Proclamation No. 1102 is not just an
ordinary act of the Chief Executive. It is a well-nigh solemn declaration
which announces the highest act of the sovereign people —
their imprimatur to the basic Charter that shall govern their lives hereafter
— may be for decades, if not for generations.
Petitioners decry that even 15-year olds, ex convicts and illiterates were
allowed to vote in the Citizens' Assemblies, despite their admission that the
term "Filipino people" in the preamble as well as "people" in Sections 1 and
5 of Article II of the 1935 Constitution and in Section 1(3) of Article III of the
Bill of Rights includes all Filipino citizens of all ages, of both sexes, whether
literate or illiterate, whether peaceful citizens, rebels, secessionists,
convicts or ex-convicts. Without admitting that ex-convicts voted in the
referendum, about which no proof was even offered, these sectors of our
citizenry, whom petitioners seem to regard with contempt or decision and
whom petitioners would deny their sovereign right to pass upon the basic
Charter that shall govern their lives and the lives of their progenies, are
entitled as much as the educated, the law abiding, and those who are 21
years of age or above to express their conformity or non conformity to the
proposed Constitution, because their stake under the new Charter is not
any less than the stake of the more fortunate among us. As a matter of
fact, these citizens, whose juridical personality or capacity to act is limited
by age, civil interdiction or ignorance deserve more solicitude from the
State than the rest of the citizenry. In the ultimate analysis, the inclusion of
those from 15 years up to below 21 years old, the ex-convicts and the
ignorant, is more democratic as it broadens the base of democracy and
therefore more faithful to the express affirmation in Section 1 of Article II
of the Declaration of Principles that "sovereignty resides in the people and
all government authority emanates from them."
Moreover, ex-convicts granted absolute pardon are qualified to vote. Not
all ex-convicts are banned from voting. Only those who had been
sentenced to at least one year imprisonment are disenfranchised but they
recover their right of suffrage upon expiration of ten years after service of
sentence (Sec. 102, 1971 Rev. Elec. Code). Furthermore, ex-convicts and
imbeciles constitute a very negligible number in any locality or barrio,
including the localities of petitioners.
Page 115 of 158
Included likewise in the delegated authority of the President, is the
prerogative to proclaim the results of the plebiscite or the voting the
Citizens' Assemblies. Petitioners deny the accuracy or correctness of
Proclamation No. 1102 that the 1973 Constitution was ratified by the
overwhelming vote of close to 15 million citizens because there was no
official certification to the results of the same from the Department of
Local Governments. But there was such certification as per Annex 1 to 1-A
to the Notes submitted by the Solicitor General counsel for respondents
public officers. This should suffice to dispose of this point. Even in the
absence of such certification, in much the same way that in passing law,
Congress or the legislative body is presumed to be in possession of the
facts upon which such laws are predicated (Justice Fernando, The Power of
Judicial Review, 1967 Ed., pp. 112-11 citing Lorenzo vs. Dir., etc., [1927] 50
Phil. 595 and O'Gonmore, et al: vs. Hartford, etc., [1931] 282 U.S. 251), it
should likewise be presumed that the President was in possession of the
fact upon which Proclamation No. 1102 was based. This presumption is
further strengthened by the fact that the Department of Local
Governments, the Department National Defense and the Philippine
Constabulary as well the Bureau of Posts are all under the President, which
offices as his alter ego, are presumptively acting for and in behalf of the
President and their acts are valid until disapproved or reprobated by the
President (Planas vs. Gil, 67 Phil. 62; Villen vs. Secretary of Interior, 67 Phil.
451). To deny the truth or the proclamation of the President as to the
overwhelming majority vote in the Citizens' Assemblies in favor of the new
Constitution, is to charge the President with falsification, which is a most
grievous accusation. Under the, rules of pleadings and evidence, the
petitioners have the burden of proof by preponderance of evidence in civil
cases and by proof beyond reasonable doubt in criminal prosecutions,
where the accused is always presumed to be innocent. Must this
constitutional right be reversed simply because the petitioner all assert the
contrary? Is the rule of law they pretend invoke only valid as long as it
favors them?
The presumption of regularity in the performance of official functions is
accorded by the law and jurisprudence to acts of public officers whose
category in the official hierarchy is very much lower than that of the Chief
of State. What reason is there to withhold such a presumption in favor of
the President? Does the fact that the President belong to the party in
power and that four (4) of the five (5) senators who are petitioners in L-
36165 belong to the opposition party, justify a discrimination against the
President in matters of this nature? Unsupported as their word is by any
credible and competent evidence under the rules of evidence, must the
word of the petitioners prevail over that of the Chief Executive, because
they happen to be former senators and delegates to the Constitutional
Convention? More than any of the petitioners herein in all these cases, the
incumbent President realizes that he risks the wrath of his people being
visited upon him and the adverse or hostile verdict of history; because of
the restrictions on the civil liberties of his people, inevitable concomitants
of martial law, which necessarily entail some degree of sacrifice on the part

of the citizenry. Until the contrary is established or demonstrated, herein
petitioners should grant that the Chief Executive is motivated by what is
good for the security and stability of the country, for the progress and
happiness of the people. All the petitioners herein cannot stand on the
proposition that the rights under the 1935 Constitution are absolute and
invulnerable to limitations that may be needed for the purpose of bringing
about the reforms for which the petitioners pretend to be clamoring for
and in behalf of the people. The five (5) petitioners in L-36165 and four (4)
of the seven (7) petitioners in L-36164 were all participants in the political
drama of this country since 1946. They are witness to the frustrations of
well-meaning Presidents who wanted to effect the reforms, especially for
the benefit of the landless and the laboring class — how politics and
political bargaining had stymied the effectuation of such reforms thru
legislation. The eight (8) petitioners in L-36164 and L-36165 may not have
participated in the systematic blocking of the desired reforms in Congress
or outside of it; but the question may be asked as to what exactly they did
to support such reforms. For the last seven (7) decades since the turn of
the century, for the last thirty-five (35) years since the establishment of the
Commonwealth government in 1935 and for the last twenty seven (27)
years since the inauguration of the Republic on July 4, 1946, no tangible
substantial reform had been effected, funded and seriously implemented,
despite the violent uprisings in the thirties, and from 1946 to 1952, and the
violent demonstrations of recent memory. Congress and the oligarchs
acted like ostriches, "burying their heads in timeless sand. "Now the hopes
for the long-awaited reforms to be within a year or to are brighter. It would
seem therefore to the duty of everyone including herein petitioners to give
the present leadership the opportunity to institute and carry out the
needed reforms as provided for in the new or 1973 Constitution and thru
the means prescribed in that same Constitution.
As stated in Wheeler vs. Board of Trustees, "a court is never justified in
placing by implication a limitation upon the sovereign."
This Court in the Gonzales and Tolentino cases transcended its proper
sphere and encroached upon the province exclusively reserved to and by
the sovereign people. This Court did not heed to the principle that the
courts are not the fountain of all remedies for all wrongs. WE cannot
presume that we alone can speak with wisdom as against the judgment of
the people on the basic instrument which affects their very lives. WE
cannot determine what is good for the people or ought to be their
fundamental law. WE can only exercise the power delegated to Us by the
sovereign people, to apply and interpret the Constitution and the laws for
the benefit of the people, not against them nor to prejudice them. WE
cannot perform an act inimical to the interest of Our principal, who at any
time may directly exercise their sovereign power ratifying a new
Constitution in the manner convenient to them.
It is pertinent to ask whether the present Supreme Court can function
under the 1935 Constitution without being a part of the government
established pursuant thereto. Unlike in the Borden case, supra, where
there was at least another government claiming to be the legitimate organ
of the state of Rhode Island (although only on paper as it had no
established organ except Dorr who represented himself to be its head; in
the cases at bar there is no other government distinct from and
maintaining a position against the existing government headed by the
incumbent Chief Executive. (See Taylor vs. Commonwealth, supra). There is
not even a rebel government duly organized as such even only for domestic
purposes, let alone a rebel government engaged in international
negotiations. As heretofore stated, both the executive branch and the
legislative branch established under the 1935 Constitution had been
supplanted by the government functioning under the 1973 Constitution as
of January 17, 1973. The vice president elected under the 1935
Constitution does not asset any claim to the leadership of the Republic of
the Philippines. Can this Supreme Court legally exist without being part of
any government?
Brilliant counsel for petitioners in L-36165 has been quite extravagant in his
appraisal of Chief Justice Roger Brooke Taney whom he calls the "hero of
the American Bar," because during the American civil war he apparently
had the courage to nullify the proclamation of President Lincoln
suspending the privileges of the writ of habeas corpus in Ex
parte Merryman (Federal Case No. 9487 [1861]). But who exactly was Chief
Justice Roger Brooke Taney? The Editorial Board of Vol. 21 of the
Encyclopedia Brit., 1966 ed. (pp. 778-779, 1969 ed., pp. 654-657), briefly
recounts that he was born in 1777 in Calvert County, Maryland, of parents
who were landed aristocrats as well as slave owners. Inheriting the
traditional conservatism of his parents who belonged to the landed
aristocracy, Taney became a lawyer in 1799, practiced law and was later
appointed Attorney General of Maryland. He also was a member of the
Maryland state legislature for several terms. He was a leader of the
Federalist Party, which disintegrated after the war of 1812, compelling him
to join the Democratic Party of Andrew Jackson, also a slave owner and
landed aristocrat, who later appointed him first as Attorney General of the
United States, then Secretary of the Treasury and in 1836 Chief Justice of
the United States Supreme Court to succeed Chief Justice John Marshall, in
which position he continued for 28 years until he died on October 21, 1864.
His death "went largely unnoticed and unregretted." Because he himself
was a slave owner and a landed aristocrat, Chief Justice Taney sympathized
with the Southern States and, even while Chief Justice, hoped that the
Southern States would be allowed to secede peacefully from the Union.
That he had no sympathy for the Negroes was revealed by his decision
in Dred Scott vs. Sandford (19 How. 398 [1857]) where he pronounced that
the American Negro is not entitled to the rights of an American citizen and
that his status as a slave is determined by his returning to a slave state.
One can therefore discern his hostility towards President Lincoln when he
decided Ex parte Merryman, which animosity to say the least does no befit
Page 116 of 158
a judicial mind. Such a man could hardly be spoken of as a hero of the
American Bar, least of all of the American nation. The choice of heroes
should not be expressed indiscriminately just to embellish one's rhetoric.
Distinguished counsel in L-36165 appears to have committed another
historical error, which may be due to his rhetorical in the Encyclopedia
Britannica (Vol. 9, 1969 ed., pp. 508-509) to this effect. On the contrary,
Encyclopedia Britannica (Vol. 17 Encyclopedia Brit., 1966 & 1969 eds., 732-
733), refers to Marshal Henri Philippe Petain as the genuine hero or "Savior
of Verdun"; because he held Verdun against the 1916 offensive of the
German army at the cost of 350,000 of his French soldiers, who were then
demoralized and plotting mutiny. Certainly, the surviving members of the
family of Marshal Petain would not relish the error. And neither would the
members of the clan of Marshal Foch acknowledge the undeserved
accolade, although Marshal Foch has a distinct place in history on his own
merits. The foregoing clarification is offered in the interest of true
scholarship and historical accuracy, so that the historians, researchers and
students may not be led astray or be confused by esteemed counsel's
eloquence and mastery of the spoken and written word as well as by his
eminence as law professor, author of law books, political leader, and
member of the newly integrated Philippine Bar.
It is quite intriguing why the eminent counsel and co-petitioner in L-36164
did not address likewise his challenge to the five (5) senators who are
petitioners in L-36165 to also act as "heroes and idealists," to defy the
President by holding sessions by themselves alone in a hotel or in their
houses if they can muster a quorum or by causing the arrest of other
senators to secure a quorum and thereafter remove respondents Puyat
and Roy (Avelino, et al. vs. Cuenco, et al. [1949] 83 Phil. 17), if they believe
most vehemently in the justice and correctness of their position that the
1973 Constitution has not been validly ratified, adopted or acquiesced in by
the people since January 18, 1973 until the present. The proclaimed
conviction of petitioners in L-36165 on this issue would have a ring of
credibility, if they proceeded first to hold a rump session outside the
legislative building; because it is not unreasonable to demand or to exact
that he who exhorts others to be brave must first demonstrate his own
courage. Surely, they will not affirm that the mere filing of their petition in
L-36165 already made them "heroes and idealists." The challenge likewise
seems to insinuate that the members of this Court who disagree with
petitioners' views are materialistic cowards or mercenary fence-sitters. The
Court need not be reminded of its solemn duty and how to perform it. WE
refuse to believe that petitioners and their learned as well as illustrious
counsels, scholars and liberal thinkers that they are, do not recognize the
sincerity of those who entertain opinions that clash with their own. Such an
attitude does not sit well with the dictum that "We can differ without being
difficult; we can disagree without being disagreeable," which distinguished
counsel in L-36165 is wont to quote.

WE reserve the right to prepare an extensive discussion of the other points
raised by petitioners, which We do not find now necessary to deal with in
view of Our opinion on the main issue.
IN VIEW OF THE FOREGOING, ALL THE PETITIONS IN THESE FIVE
CASES SHOULD BE DISMISSED.
MAKASIAR, J., concurring:
Pursuant to Our reservation, We now discuss the other issues raised by the
petitioners.
II
EVEN IF ISSUE IS JUSTICIABLE, PEOPLE'S RATIFICATION, ADOPTION OR
ACQUIESCENCE CREATES STRONG PRESUMPTION OF VALIDITY OF 1973
CONSTITUTION.
As intimated in the aforecited cases, even the courts, which affirm the
proposition that the question as to whether a constitutional amendment or
the revised or new Constitution has been validly submitted to the people
for ratification in accordance with the procedure prescribed by the existing
Constitution, is a justiciable question, accord all presumption of validity to
the constitutional amendment or the revised or new Constitution after the
government officials or the people have adopted or ratified or acquiesced in
the new Constitution or amendment, although there was an illegal or
irregular or no submission at all to the people. (Collier vs. Gray, 4th Dec.
Dig. 935 [1934], Hammond vs. Clark, 71 SE 482-483; People vs. Sours, 31
Colo. 369, 74 Pac. 167, 102 Am. St. Rep. 34; Thompson vs. Winneth, 78
Neb. 379, 110 NW 1113, 10 L.R.A. [N.S.] 149; State vs. Laylin, 69 Ohio St.
Rep. 1, 68 NE 574; Weston vs. Ryan, 70 Neb. 211, 97 NW 347; Combs vs.
State, 81 Ga. 780, 8 SE 318; Woodward vs. State, 103 Ga. 496, 30 SE 522;
Corre vs. Cooney, 70 Mont. 355, 225 P 1007, 1009). As late as 1971, the
courts stressed that the constitutional amendment or the new Constitution
should not be condemned "unless our judgment its nullity is manifest
beyond reasonable doubt" (1971 case of Moore vs. Shanahan, 486 Pac. 2d
506, 207 Kan. 1, 645; and the 1956 case of Tipton vs. Smith, et al., supra).
Mr. Justice Enrique M. Fernando, speaking for the Court, pronounced that
the presumption of constitutionality must persist in the absence of factual
foundation of record to overthrow such presumption (Ermita-Malate Hotel,
etc. vs. City Mayor, L-24698, July 31, 1967, 20 SCRA 849).
III
CONSTITUTIONAL CONVENTION — CO-EQUAL WITH AND INDEPENDENT OF
CONGRESS, EXECUTIVE AND JUDICIARY.
The Constitutional Convention is co-ordinate and co-equal with, as well as
independent of, the three grand departments of the Government, namely,
the legislative, the executive and the judicial. As a fourth separate and
distinct branch, to emphasize its independence, the Convention cannot be
dictated to by either of the other three departments as to the content as
well as the form of the Charter that it proposes. It enjoys the same
immunity from interference or supervision by any of the aforesaid
branches of the Government in its proceedings, including the printing of its
own journals (Tañada and Fernando, Constitution of the Philippines, 1952
ed., Vol. I, pp. 8 9; Malcolm and Laurel, Phil. Const. Law, p. 22; Frantz vs.
Autry, 91 Pac. 193). Implicit in that independence, for the purpose of
maintaining the same unimpaired and in order that its work will not be
frustrated, the Convention has the power to fix the date for the plebiscite
and to provide funds therefor. To deny the Convention such prerogative,
would leave it at the tender mercy of both legislative and executive
branches of the Government. An unsympathetic Congress would not be
disposed to submit the proposed Constitution drafted by the Constitutional
Convention to the people for ratification, much less appropriate the
necessary funds therefor. That could have been the fate of the 1973
Constitution, because the same abolished the Senate by creating a
unicameral National Assembly to be presided by a Prime Minister who
wields both legislative and executive powers and is the actual Chief
Executive, for the President contemplated in the new Constitution
exercises primarily ceremonial prerogatives. The new Constitution likewise
shortened abruptly the terms of the members of the present Congress
(whose terms end on December 31, 1973, 1975 and 1977) which provides
that the new Constitution shall take effect immediately upon its ratification
(Sec. 16, Article XVII, 1973 Constitution). The fact that Section 2 of the
same Article XVIII secures to the members of Congress membership in the
interim National Assembly as long as they opt to serve therein within thirty
(30) days after the ratification of the proposed Constitution, affords them
little comfort; because the convening of the interim National Assembly
depends upon the incumbent President (under Sec. 3[1], Art. XVII, 1973
Constitution). Under the foregoing circumstances, the members of
Congress, who were elected under the 1935 Constitution, would not be
disposed to call a plebiscite and appropriate funds therefor to enable the
people to pass upon the 1973 Constitution, ratification of which means
their elimination from the political scene. They will not provide the means
for their own liquidation.
Because the Constitutional Convention, by necessary implication as it is
indispensable to its independence and effectiveness, possesses the power
to call a plebiscite and to appropriate funds for the purpose, it inescapably
must have the power to delegate the same to the President, who, in
estimation of the Convention can better determine appropriate time for
such a referendum as well as the amount necessary to effect the same; for
which reason the Convention thru Resolution No. 29 approved on
November 22, 1972, which superseded Resolution No. 5843 adopted on
November 16, 1972, proposed to the President "that a decree be issued
Page 117 of 158
calling a plebiscite for the ratification of the proposed new Constitution
such appropriate date as he shall determine and providing for the
necessary funds therefor, ...," after stating in "whereas" clauses that the
1971 Constitutional Convention expected to complete its work by the end
of November, 1972 that the urgency of instituting reforms rendered
imperative the early approval of the new Constitution, and that the
national and local leaders desire that there be continuity in the immediate
transition from the old to the new Constitution.
If Congress can legally delegate to the Chief Executive or his subaltern the
power to promulgate subordinate rules and regulations to implement the
law, this authority to delegate implementing rules should not be denied to
the Constitutional Convention, a co-equal body.
Apart from the delegation to the Chief Executive of the power to call a
plebiscite and to appropriate funds therefor by the Constitutional
Convention thru its Resolution No. 29, the organization of the Citizens'
Assemblies for consultation on national issues, is comprehended within the
ordinance-making power of the President under Section 63 of the Revised
Administrative Code, which expressly confers on the Chief Executive
the power to promulgate administrative acts and commands touching on
the organization or mode of operation of the government or re-arranging
or re-adjusting any district, division or part of the Philippines "or disposing
of issues of general concern ... ." (Emphasis supplied). Hence, as
consultative bodies representing the localities including the barrios, their
creation by the President thru Presidential Decree No. 86 of December 31,
1972, cannot be successfully challenged.
The employment by the President of these Citizens' Assemblies for
consultation on the 1973 Constitution or on whether there was further
need of a plebiscite thereon, — both issues of national concern — is still
within the delegated authority reposed in him by the Constitutional
Convention as aforesaid.
It should be noted that Resolution No. 29, which superseded Resolution
No. 5843, does not prescribe that the plebiscite must be conducted by the
Commission on Elections in accordance with the provisions of the 1971
Revised Election Code. If that were the intention of the Constitutional
Convention in making the delegation, it could have easily included the
necessary phrase for the purpose, some such phrase like "to call a
plebiscite to be supervised by the Commission on Elections in accordance
with the provisions of the 1971 Revised Election Code (or with existing
laws)." That the Constitutional Convention omitted such phrase, can only
mean that it left to the President the determination of the manner by
which the plebiscite should be conducted, who shall supervise the
plebiscite, and who can participate in the plebiscite. The fact that said
Resolution No. 29 expressly states "that copies of this resolution as
approved in plenary session be transmitted to the President of the
 Page 118 of 158

Philippines and the Commission on Elections for implementation," did not ... Once this work of drafting has been completed, it compound, as well of the errors and prejudices as of the good sense and
in effect designate the Commission on Elections as supervisor of the could itself direct the submission to the people for wisdom, of the individuals of whom they are composed. The compacts
plebiscite. The copies of said resolution that were transmitted to the ratification as contemplated in Article XV of the which are to embrace thirteen distinct States in a common bond of amity
Commission on Elections at best serve merely to notify the Commission on Constitution. Here it did not do so. With Congress not and union, must necessarily be a compromise of as many dissimilar
Elections about said resolution, but not to direct said body to supervise the being in session, could the President, by the decree interests and inclinations. How can perfection spring from such materials?"
plebiscite. The calling as well as conduct of the plebiscite was left to the under question, call for such a plebiscite? Under such (The Federalist, Modern Library Ed., pp. xx-xxi).
discretion of the President, who, because he is in possession of all the facts circumstances, a negative answer certainly could result
funnelled to him by his intelligence services, was in the superior position to in the work of the Convention being rendered nugatory. (2) The 1973 Constitution is likewise impugned on the ground that it
decide when the plebiscite shall be held, how it shall be conducted and The view has been repeatedly expressed in many contains provisions which are ultra vires or beyond the power of the
who shall oversee it. American state court decisions that to avoid such Constitutional Convention to propose.
undesirable consequence the task of submission
It should be noted that in approving said Resolution No. 29, the becomes ministerial, with the political branches devoid
This objection relates to the wisdom of changing the form of government
Constitutional Convention itself recognized the validity of, or validated of any discretion as to the holding of an election for
from Presidential to Parliamentary and including such provisions as Section
Presidential Proclamation No. 1081 placing the entire country under that purpose. Nor is the appropriation by him of the
3 of Article IV, Section 15 of Article XIV and Sections 3(2) and 12 of Article
martial law by resolving to "propose to President Ferdinand E. Marcos that amount necessary to be considered as offensive to the
XVII in the 1973 Constitution.
a decree be issued calling a plebiscite ... ." The use of the term "decree" is Constitution. If it were done by him in his capacity as
significant for the basic orders regulating the conduct of all inhabitants are President, such an objection would indeed have been
formidable, not to say insurmountable. If the Article IV —
issued in that form and nomenclature by the President as the Commander
in Chief and enforcer of martial law. Consequently, the issuance by the appropriation were made in his capacity as agent of the
President of Presidential Decree No. 73 on December 1, 1972 setting the Convention to assure that there be submission to the Sec. 3. The right of the people to be secure in their
plebiscite on January 15, 1973 and appropriating funds therefor pursuant people, then such an argument loses force. The persons, houses, papers, and effects against
to said Resolution No. 29, is a valid exercise of such delegated authority. Convention itself could have done so. It is unreasonable searches and seizures of whatever nature
understandable why it should be thus. If it were and for any purpose shall not be violated, and no
otherwise, then a legislative body, the appropriating search warrant or warrant of arrest shall issue except
Such delegation, unlike the delegation by Congress of the rule-making
arm of the government, could conceivably make use of upon probable cause to be determined by the judge, or
power to the Chief Executive or to any of his subalterns, does not need
such authority to compel the Convention to submit to such other responsible officer as may be authorized by
sufficient standards to circumscribe the exercise of the power delegated,
its wishes, on pain of being rendered financially law, after examination under oath or affirmation of the
and is beyond the competence of this Court to nullify. But even if adequate
distraught. The President then, if performing his role as complainant and the witnesses may produce, and
criteria should be required, the same are contained in the "Whereas"
its agent, could be held as not devoid of such particularly describing the place to be searched, and
clauses of the Constitutional Convention Resolution No. 29, thus:
competence. (pp. 2-3, concurring opinion of J. Fernando the persons or things to be seized.
in L-35925, etc., emphasis supplied).
WHEREAS, the 1971 Constitutional Convention is
Article XIV —
expected to complete its work of drafting a proposed
IV
new Constitution for the Republic by the end of
November, 1972; Sec. 15. Any provision of paragraph one, Section
VAGUENESS OR AMBIGUITY DOES NOT INVALIDATE THE fourteen, Article Eight and of this Article
1973 CONSTITUTION notwithstanding, the Prime Minister may enter into
WHEREAS, in view of the urgency of instituting reforms,
international treaties or agreements as the national
the early approval of the New Constitution has become
(1) Petitions challenge the 1973 draft as vague and incomplete, and alluded welfare and interest may require." (Without the
imperative;
to their arguments during the hearings on December 18 and 19, 1972 on consent of the National Assembly.)
the Plebiscite Cases. But the inclusion of questionable or ambiguous
WHEREAS, it is the desire of the national and local
provisions does not affect the validity of the ratification or adoption of the Article XVII —
leaders that there be continuity in the immediate
1973 Constitution itself (Pope vs. Gray, 104 SO, 2d 841; 7th Dec. pp. 212-
political transition from the old to the New
219, 1956-1966). Sec. 3(2) All proclamations, orders, decrees,
Constitution;" (Annex "1" of Answer, Res. No. 29,
Constitutional Convention). instructions, and acts promulgated, issued, or done by
Alexander Hamilton, one of the leading founders and defenders of the the incumbent President shall be part of the law of the
American Constitution, answering the critics of the Federal Constitution, land, and shall remain valid, legal, binding and effective
As Mr. Justice Fernando, with whom Messrs. Justices Barredo, Antonio and
stated that: "I never expect to see a perfect work from imperfect man. The even after lifting of martial law or the ratification of this
the writer concurred in the Plebiscite Cases, stated:
result of the deliberations of all collective bodies must necessarily be a Constitution, unless modified, revoked, or superseded

by subsequent proclamations, orders, decrees,
instructions, or other acts of the incumbent President,
or unless expressly and explicitly modified or repealed
by the regular National Assembly.
xxx xxx xxx
Sec. 12. All treaties, executive agreements, and
contracts entered into by the Government, or any
subdivision, agency, or instrumentality thereof,
including government-owned or controlled
corporations, are hereby recognized as legal, valid and
binding. When the national interest so requires, the
incumbent President of the Philippines or the interim
Prime Minister may review all contracts, concessions,
permits, or other forms of privileges for the
exploration, development, exploitation, or utilization of
natural resources entered into, granted, issued or
acquired before the ratification of this Constitution.
In the Plebiscite Cases (L-35925, L-35929, L-35940, L-35942, L-35948, L-
35953, L-35961, L-35965, & L-35979), Chief Justice Roberto Concepcion,
concurred in by Justices Fernando, Barredo, Antonio and the writer,
overruled this objection, thus:
... Regardless of the wisdom and
moral aspects of the contested
provisions of the proposed
Constitution, it is my considered
view that the Convention was
legally deemed fit to propose —
save perhaps what is or may be
insistent with what is now known,
particularly in international law,
as Jus Cogens — not only because
the Convention exercised sovereign
powers delegated thereto by the
people — although insofar only as
the determination of the proposals
to be made and formulated by said
body is concerned — but also,
because said proposals cannot be
valid as part of our Fundamental
Law unless and until "approved by
the majority of the votes cast at an
election which" said proposals "are
submitted to the people for their
ratification," as provided in Section
1 of Article XV of the 1935
Constitution. (Pp. 17-18, Decision in
L-35925, etc.).
This Court likewise enunciated in Del Rosario vs. Comelec (L-32476, Oct. 20,
1970, 35 SCRA 367) that the Constitutional Convention has the authority to
"entirely overhaul the present Constitution and propose an entirely new
Constitution based on an ideology foreign to the democratic system ...;
because the same will be submitted to the people for ratification. Once
ratified by the sovereign people, there can be no debate about the validity
of the new Constitution."
Mr. Justice Fernando, concurring in the same Plebiscite Cases, cited the
foregoing pronouncement in the Del Rosario case, supra, and added: "... it
seems to me a sufficient answer that once convened, the area open for
deliberation to a constitutional convention ..., is practically limitless" (citing
Cf. Koehler vs. Hill, 14 NW 738, 60 Iowa 543 [1883]; Hatch Stoneman, 6 P
734, 66 Cal. 632 [1885]; MacMillan v. Blattner, 25 NW 245, 67 Iowa 287
[1895]; State v. Powell, 27 SO 297, 77 Miss. 543 [1900]; Hammond v. Clark,
71 SE 479, 136 Ga. 313 [1911]; Hamilton v. Vaughan, 179 NW 533, 212
Mich. 31 [1920]; State v. Smith, 138 NE 881, 105 Ohio St. 570 [1922];
Looney vs. Leeper, 292 P 365, 145 Okl. 202 [1930]; School District vs. City of
Pontiac, 247 NW 474, 262 Mich. 338 [1933]).
Mr. Justice Barredo, in his concurring opinion in said Plebiscite Cases,
expressed the view "that when the people elected the delegates to the
Convention and when the delegates themselves were campaigning, such
limitation of the scope of their function and objective was not in their
minds."
V
1973 CONSTITUTION DULY ADOPTED AND
PROMULGATED.
Petitioners next claim that the 1971 Constitutional Convention adjourned
on November 30, 1972 without officially promulgating the said
Constitution in Filipino as required by Sections 3(1) of Article XV on General
Provisions of the 1973 Constitution. This claim is without merit because
their Annex "M" is the Filipino version of the 1973 Constitution, like the
English version, contains the certification by President Diosdado Macapagal
of the Constitutional Convention, duly attested by its Secretary, that the
proposed Constitution, approved on second reading on the 27th day of
November, 1972 and on third reading in the Convention's 291st plenary
session on November 29, 1972 and accordingly signed on November 1972
by the delegates whose signatures are thereunder affixed. It should be
recalled that Constitutional Convention President Diosdado Macapagal
Page 119 of 158
was, as President of the Republic 1962 to 1965, then the titular head of the
Liberal Party to which four (4) of the petitioners in L-36165 including their
counsel, former Senator Jovito Salonga, belong. Are they repudiating and
disowning their former party leader and benefactor?
VI
ARTICLE XV OF 1935 CONSTITUTION DOES NOT
PRESCRIBE ANY PROCEDURE FOR RATIFICATION OF
1973 CONSTITUTION.
(1) Article XV of the 1935 Constitution simply provides that "such
amendments shall be valid as part of this Constitution when approved by a
majority of the votes cast at an election at which the amendments are
submitted to the people for ratification."
But petitioners construe the aforesaid provision to read: "Such
amendments shall be valid as part of this Constitution when approved by a
majority of the votes cast at an election called by Congress at which the
amendments are submitted for ratification by the qualified electors defined
in Article V hereof, supervised by the Commission on Elections in
accordance with the existing election law and after such amendments shall
have been published in all the newspapers of general circulation for at least
four months prior to such election."
This position certainly imposes limitation on the sovereign people, who
have the sole power of ratification, which imposition by the Court is never
justified (Wheeler vs. Board of Trustees, supra).
In effect, petitioners and their counsels are amending by a strained and
tortured construction Article XV of the 1935 Constitution. This is a clear
case of usurpation of sovereign power they do not possess — through
some kind of escamotage. This Court should not commit such a grave error
in the guise of judicial interpretation.
In all the cases where the court held that illegal or irregular submission,
due to absence of substantial compliance with the procedure prescribed by
the Constitution and/or the law, nullifies the proposed amendment or the
new Constitution, the procedure prescribed by the state Constitution is so
detailed that it specifies that the submission should be at a general or
special election, or at the election for members of the State legislature only
or of all state officials only or of local officials only, or of both state and
local officials; fixes the date of the election or plebiscite limits the
submission to only electors or qualified electors; prescribes the publication
of the proposed amendment or a new Constitution for a specific period
prior to the election or plebiscite; and designates the officer to conduct the
plebiscite, to canvass and to certify the results, including the form of the

ballot which should so state the substance of the proposed amendments to
enable the voter to vote on each amendment separately or authorizes
expressly the Constitutional Convention or the legislature to determine the
procedure or certain details thereof. See the State Constitutions of
Alabama [1901]; Arizona [1912]; Arkansas [1874]; Colorado [1976];
Connecticut [1818]; Florida [1887]; Georgia [1945]; Illinois [1970]; Indiana
[1851]; Iowa [1857]; Kansas [1861]; Kentucky [1891]; Louisiana [1921];
Maryland [1867]; Massachusetts [1790]; Michigan [1909]; Minnesota
[1857]; Mississippi [1890]; and Missouri [1945]).
As typical examples:
Constitution of Alabama (1901):
Article XVIII. Mode of Amending the Constitution
Sec. 284. Legislative Proposals. Amendments may be
proposed to this Constitution by the legislature in the
manner following: The proposed amendments shall be
read in the house in which they originate on three
several days, and, if upon the third reading, three-fifths
of all the members elected to that house shall vote in
favor thereof, the proposed amendments shall be sent
to the other house, in which they shall likewise be read
on three several days, and if upon the third reading,
three-fifths of all the members elected that house shall
vote in favor of the proposed amendments,
the legislature shall order an election by the qualified
electors of the state upon such proposed amendments,
to be held either at the general election next succeeding
the session of the legislature at which the amendments
are proposed or upon another day appointed by the
legislature, not less than three months after the final
adjournment of the session of the legislature at which
the amendments were proposed. Notice of such
election, together with the proposed amendments,
shall be given by proclamation of the governor, which
shall be published in every county in such manner as
the legislature shall direct, for at least eight successive
weeks next preceding the day appointed for such
election. On the day so appointed an election shall be
held for the vote of the qualified electors of the state
upon the proposed amendments. If such election be
held on the day of the general election, the officers of
such general election shall open a poll for the vote of
the qualified electors upon the proposed amendments;
if it be held on a day other than that of a general
election, officers for such election shall be appointed;
and the election shall be held in all things in accordance
Page 120 of 158
with the law governing general elections. In all Constitution; but no more than three amendments shall
elections upon such proposed amendments, the votes be proposed or submitted at the same time. They shall
cast thereat shall be canvassed, tabulated, and returns be so submitted as to enable the electors to vote on
thereof be made to the secretary of state, and counted, each amendment separately.
in the same manner as in elections for representatives
to the legislature; and if it shall thereupon appear that Constitution of Kansas (1861):
a majority of the qualified electors who voted at such
election upon the proposed amendments voted in
Article XIV. Amendments.
favor of the same, such amendments shall be valid to
all intents and purposes as parts of this Constitution.
The result of such election shall be made known by Sec. 1. Proposal of amendments; publications;
proclamation of the governor. Representation in the elections. Propositions for the amendment of this
legislature shall be based upon population, and such constitution may be made by either branch of the
basis of representation shall not be changed by legislature; and if two thirds of all the members elected
to each house shall concur therein, such proposed
constitutional amendments.
amendments, together with the yeas and nays, shall be
entered on the journal; and the secretary of state shall
Sec. 285. Form of ballot for amendment. Upon the
cause the same to be published in at least one
ballots used at all elections provided for in section 284
newspaper in each county of the state where a
of this Constitution, the substance or subject matter of
newspaper is published, for three months preceding
each proposed amendment shall be so printed that the
the next election for representatives, at which time, the
nature thereof shall be clearly indicated. Following
same shall be submitted to the electors, for their
each proposed amendment on the ballot shall be
approval or rejection; and if a majority of the electors
printed the word "Yes" and immediately under that
voting on said amendments, at said election, shall
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
shall be submitted at the same time, they shall be so
desire, and no amendment shall be adopted unless it
submitted as to enable the electors to vote on each
receives the affirmative vote of a majority of all the
amendments separately; and not more than three
qualified electors who vote at such election.
propositions to amend shall be submitted at the same
election.
Constitution of Arkansas (1874):
Constitution of Maryland (1867):
Article XIX. Miscellaneous Provisions.
Article XIV. Amendments to the Constitution.
Sec. 22. Constitutional amendments. Either branch of
the General Assembly at a regular session thereof may
Sec. 1. Proposal in general assembly; publication;
propose amendments to this Constitution, and, if the
submission to voters; governor's proclamation. The
same be agreed to by a majority of all the members,
General Assembly may propose Amendments to this
elected to each house, such proposed
Constitution; provided that each Amendment shall be
amendments shall be entered on the journal with the
embraced in a separate bill, embodying the Article or
yeas and nays, and published in at least one newspaper
Section, as the same will stand when amended and
in each county, where a newspaper is published, for six
passed by three fifths of all the members elected to
months immediately preceding the next general
each of the two Houses, by yeas and nays, to be
election for Senators and Representatives, at which
entered on the Journals with the proposed
time the same shall be submitted to the electors of the
Amendment. The bill or bills proposing amendment or
State for approval or rejection, and if a majority of the
amendments shall be published by order of the
electors voting at such election adopt such
Governor, in at least two newspapers, in each County,
amendments, the same shall become a part of this

where so many may be published, and where not more
than one may be published, then in the newspaper, and
in three newspapers published in the City of Baltimore,
once a week for four weeks immediately preceding the
next ensuing general election, at which the proposed
amendment or amendments shall be submitted, in a
form to be prescribed by the General Assembly, to the
qualified voters of the State for adoption or rejection.
The votes cast for and against said proposed
amendment or amendments, severally, shall be
returned to the Governor, in the manner prescribed in
other cases, and if it shall appear to the Governor that
a majority of the votes cast at said election on said
amendment or amendments, severally, were cast in
favor thereof, the Governor shall, by his proclamation,
declare the said amendment or amendments having
received said majority of votes, to have been adopted
by the people of Maryland as part of the Constitution
thereof, and henceforth said amendment or
amendments shall be part of the said Constitution.
When two or more amendments shall be submitted in
the manner aforesaid, to the voters of this State at the
same election, they shall be so submitted as that each
amendment shall be voted on separately.
Constitution of Missouri (1945):
Article XII. Amending the Constitution.
Sec. 2(b). Submission of amendments proposed by
general assembly or by the initiative. All amendments
proposed by the general assembly or by the initiative
shall be submitted to the electors for their approval or
rejection by official ballot title as may be provided by
law, on a separate ballot without party designation, at
the next general election, or at a special election called
by the governor prior thereto, at which he may submit
any of the amendments. No such proposed
amendment shall contain more than one amended and
revised article of this constitution, or one new article
which shall not contain more than one subject and
matters properly connected therewith. If possible, each
proposed amendment shall be published once a week
for two consecutive weeks in two newspapers of
different political faith in each county, the last
publication to be not more than thirty nor less than
fifteen days next preceding the election. If there be but
one newspaper in any county, publication of four
consecutive weeks shall be made. If a majority of the
votes cast thereon is in favor of any amendment, the
same shall take effect at the end of thirty days after the
election. More than one amendment at the same
election shall be so submitted as to enable the electors
to vote on each amendment separately.
Article XV of the 1935 Constitution does not require a specific procedure,
much less a detailed procedure for submission or ratification. As
heretofore stated, it does not specify what kind of election at which the
new Constitution shall be submitted; nor does it designate the Commission
on Elections to supervise the plebiscite. Neither does it limit the ratification
to the qualified electors as defined in Article V of the 1935 Constitution.
Much less does it require the publication of the proposed Constitution for
any specific period before the plebiscite nor does it even insinuate that the
plebiscite should be supervised in accordance with the existing election
law.
(2) As aforequoted, Article XV does not indicate the procedure for
submission of the proposed Constitution to the people for ratification. It
does not make any reference to the Commission on Elections as the body
that shall supervise the plebiscite. And Article XV could not make any
reference to the Commission on Elections because the original 1935
Constitution as ratified on May 14, 1935 by the people did not contain
Article X on the Commission on Elections, which article was included
therein pursuant to an amendment by that National Assembly proposed
only about five (5) years later — on April 11, 1940, ratified by the people
on June 18, 1940 as approved by the President of the United States on
December 1940 (see Sumulong vs. Commission, 70 Phil. 703, 713, 715;
Gonzales, Phil. Const. Law, 1966 ed., p. 13). So it cannot be said that the
original framers of the 1935 Constitution as ratified May 14, 1935 intended
that a body known as the Commission on Elections should be the one to
supervise the plebiscite, because the Commission on Elections was not in
existence then as was created only by Commonwealth Act No. 607
approved on August 22, 1940 and amended by Commonwealth Act No. 657
approved on June 21, 1941 (see Tañada & Carreon, Political Law of the
Philippines, Vol. I, 1961 ed., pp. 475-476; Sumulong vs. Commission, 170
Phil. 703, 708-715; 73 Phil. 288, 290-300; Tañada & Fernando, Constitution
of the Philippines, 1953 ed., Vol. I, p. 5, Vol. II,
pp. 11-19).
Because before August, 1940 the Commission on Election was not yet in
existence, the former Department of Interior (now Department of Local
Governments and Community Development) supervised the plebiscites on
the 1937 amendment on woman's suffrage, the 1939 amendment to the
Ordinance appended to the 1935 Constitution (Tydings-Kocialkowski Act of
the U.S. Congress) and the three 1940 amendments on the establishment
of a bicameral Congress, the re-election of the President and the Vice-
Page 121 of 158
President, and the creation of the Commission on Elections (ratified on
June 18, 1940). The supervision of said plebiscites by the then Department
of Interior was not automatic, but by virtue of an express authorization in
Commonwealth Act Nos. 34, 49 and 517.
If the National Assembly then intended that the Commission on Elections
should also supervise the plebiscite for ratification of constitutional
amendments or revision, it should have likewise proposed the
corresponding amendment to Article XV by providing therein that the
plebiscite on amendments shall be supervised by the Commission on
Elections.
3) If the framers of the 1935 Constitution and the people in ratifying the
same on May 14, 1935 wanted that only the qualified voters under Article
V of the 1935 Constitution should participate in the referendum on any
amendment or revision thereof, they could have provided the same in
1935 or in the 1940 amendment by just adding a few words to Article XV
by changing the last phrase to "submitted for ratification to the qualified
electors as defined in Article V hereof," or some such similar phrases.
Then again, the term "people" in Article XV cannot be understood to
exclusively refer to the qualified electors under Article V of the 1935
Constitution because the said term "people" as used in several provisions
of the 1935 Constitution, does not have a uniform meaning. Thus in the
preamble, the term "Filipino people" refer, to all Filipino citizens of all ages
of both sexes. In Section 1 of Article II on the Declaration of Principles, the
term "people" in whom sovereignty resides and from whom all
government authority emanates, can only refer also to Filipino citizens of
all ages and of both sexes. But in Section 5 of the same Article II on social
justice, the term "people" comprehends not only Filipino citizens but also
all aliens residing in the country of all ages and of both sexes. Likewise, that
is the same connotation of the term "people" employed in Section 1(3) of
Article III on the Bill of Rights concerning searches and seizures.
When the 1935 Constitution wants to limit action or the exercise of a right
to the electorate, it does so expressly as the case of the election of
senators and congressmen. Section 2 Article VI expressly provides that the
senators "shall be chosen at large by the qualified electors of the
Philippines as may provided by law." Section 5 of the same Article VI
specifically provides that congressmen shall "be elected by the qualified
electors." The only provision that seems to sustain the theory of petitioners
that the term "people" in Article XV should refer to the qualified electors as
defined in Article V of the 1935 Constitution is the provision that the
President and Vice-President shall be elected "by direct vote of the
people." (Sec. 2 of Art. VII of the 1935 Constitution). But this alone cannot
be conclusive as to such construction, because of explicit provisions of
Sections 2 and 5 of Article VI, which specifically prescribes that the
senators and congressmen shall be elected by the qualified electors.

As aforesaid, most of the constitutions of the various states of the United
States, specifically delineate in detail procedure of ratification of
amendments to or revision of said Constitutions and expressly require
ratification by qualified electors, not by the generic term "people".
The proposal submitted to the Ozamis Committee on the Amending
Process of the 1934-35 Constitutional Convention satisfied that the
amendment shall be submitted to qualified election for ratification. This
proposal was not accepted indicating that the 1934-35 Constitutional
Convention did intend to limit the term "people" in Article XV of the 1935
Constitution to qualified electors only. As above demonstrated, the 1934-35
Constitutional Convention limits the use of the term "qualified electors" to
elections of public officials. It did not want to tie the hands of succeeding
future constitutional conventions as to who should ratify the proposed
amendment or revision.
(4) It is not exactly correct to opine that Article XV of 1935 Constitution on
constitutional amendment contemplates the automatic applicability of
election laws to plebiscites on proposed constitutional amendments or
revision.
The very phraseology of the specific laws enacted by the National Assembly
and later by Congress, indicates that there is need of a statute expressly
authorizing the application of the election laws to plebiscites of this nature.
Thus, Com. Act No. 34 on the woman's suffrage amendment enacted on
September 30, 1936, consists of 12 sections and, aside from providing that
"there shall be held a plebiscite on Friday, April 30, 1937, on the question
of woman's suffrage ... and that said amendment shall be published in the
Official Gazette in English and Spanish for three consecutive issues at least
fifteen (15) days prior to said election, ... and shall be posted in a
conspicuous place in its municipal and provincial office building and in its
polling place not later than April 22, 1937" (Sec. 12, Com. Act No. 34),
specifies that the provisions of the Election Law regarding, the holding of
a special election, insofar as said provisions are not in conflict with it,
should apply to the said plebiscite (Sec. 3, Com. Act No. 34)1; and, that the
votes cast according to the returns of the board of inspectors shall be
counted by the National Assembly (Sec. 10, Com. Act No. 34).
The election laws then in force before 1938 were found in Sections 392-
483 of the Revised Administrative Code.
Sec. 1 of Com. Act No. 357, the previous Election Code enacted on August
22, 1938, makes it expressly applicable to plebiscites. Yet the subsequent
laws, namely, Com. Act Nos. 492 and 517 and Rep. Act No. 73 calling for
the plebiscite on the constitutional amendments in 1939, 1940 and 1946,
including the amendment creating the Commission on Elections,
specifically provided that the provisions of the existing election law shall
apply to such plebiscites insofar as they are not inconsistent with the
aforesaid Com. Act Nos. 492 and 517, as well as Rep. Act No. 73. Thus —
Commonwealth Act No. 492, enacted on September 19, 1939, calling for a
plebiscite on the proposed amendments to the Constitution adopted by
the National Assembly on September 15, 1939, consists of 8 sections and
provides that the proposed amendments to the Constitution adopted in
Resolution No. 39 on September 15, 1939 "shall be submitted to the
Filipino people for approval or disapproval at a general election to be held
throughout the Philippines on Tuesday, October 24, 1939"; that the
amendments to said Constitution proposed in "Res. No. 38, adopted on the
same date, shall be submitted at following election of local officials," (Sec.
1, Com. Act No. 492) that the said amendments shall be published in
English and Spanish in three consecutive issues of the Official Gazette at
least ten (10) days prior to the elections; that copies thereof shall be posted
not later than October 20, 1939 (Sec. 2, Com. Act 492); that the election
shall be conducted according to provisions of the Election Code insofar as
the same may be applicable; that within thirty (30) days after the
election, Speaker of the National Assembly shall request the President to
call a special session of the Assembly for the purpose of canvassing the
returns and certify the results thereof (Sec. 6, Com. Act No. 492).
Commonwealth Act No. 517, consisting of 11 sections, was approved on
April 25, 1940 and provided, among others: that the plebiscite on the
constitutional amendments providing bicameral Congress, re-election of
the President and Vice-President, and the creation of a Commission on
Elections shall be held at a general election on June 18, 1940 (Sec. 1); that
said amendments shall be published in three consecutive issues of the
Official Gazette in English and Spanish at least 20 days prior to the election
and posted in every local government office building and polling place not
later than May 18, 1940 (Sec. 2); that the election shall be conducted in
conformity with the Election Code insofar as the same may be applicable
(Sec. 3) that copies of the returns shall be forwarded to the Secretary of
National Assembly and the Secretary of Interior (Sec. 7); that the National
Assembly shall canvass the returns to certify the results at a special session
to be called by President (Sec. 8).
Republic Act No. 73 approved on October 21, 1946 calling for a plebiscite
on the parity amendment consists of 8 sections provides that the
Amendment "shall be submitted to the people, for approval or
disapproval, at a general election which shall be held on March 11, 1947, in
accordance with the provisions of this Act" (Sec. 1, R.A. No. 73); that the
said amendment shall be published in English and Spanish in three
consecutive issues of the Official Gazette at least 20 days prior to the
election; that copies of the same shall be posted in a conspicuous place and
in every polling place not later than February 11, 1947 (Section 2, R.A. No.
73); that the provisions of Com. Act No. 357 (Election Code) and Com. Act
No. 657 creating the Commission on Elections, shall apply to the election
Page 122 of 158
insofar as they are not inconsistent with this Act (Sec. 3, R.A. No. 73); and
that within 30 days after the election, the Senate and House of
Representatives shall hold a joint session to canvass the returns and certify
the results thereof (Section 6, R.A. No. 73).
From the foregoing provisions, it is patent that Article XV of the 1935
Constitution does not contemplate nor envision the automatic application
of the election law; and even at that, not all the provisions of the election
law were made applicable because the various laws aforecited contain
several provisions which are inconsistent with the provisions of the Revised
Election Code (Com. Act No. 357). Moreover, it should be noted that the
period for the publication of the copies of the proposed amendments was
about 10 days, 15 days or 20 days, and for posting at least 4 days, 8 days or
30 days.
Republic Acts Nos. 180 and 6388 likewise expressly provide that the
Election Code shall apply to plebiscites (See. 2, R.A. No. 180, as amended,
and Section 2, Rep. Act No. 6388).
If the Election Code ipso facto applies to plebiscites under Article XV of the
1935 Constitution, there would be no need for Congress to expressly
provide therefor in the election laws enacted after the inauguration of the
Commonwealth government under the 1935 Constitution.
(5) Article XV of the 1935 Constitution does not specify who can vote and
how they shall vote. Unlike the various State Constitutions of the American
Union (with few exceptions), Article XV does not state that only qualified
electors can vote in the plebiscite. As above-intimated, most of the
Constitutions of the various states of the United States provide for very
detailed amending process and specify that only qualified electors can vote
at such plebiscite or election.
Congress itself, in enacting Republic Act No. 3590, otherwise known as the
Barrio Charter, which was approved on June 17, 1967 and superseded
Republic Act No. 2370, expanded the membership of the barrio assembly
to include citizens who are at least 18 years of age, whether literate or not,
provided they are also residents of the barrio for at least 6 months (Sec. 4,
R.A. No. 3590).
Sec. 4. The barrio assembly. — The barrio assembly
shall consist of all persons who are residents of the
barrio for at least six months, eighteen years of age or
over, citizens of the Republic of the Philippines and who
are duly registered in the list of barrio assembly
members kept by the Barrio Secretary.

The barrio assembly shall meet at least once a year to
hear the annual report of the barrio council concerning
the activities and finances of the barrio.
It shall meet also at the case of the barrio council or
upon written petition of at least One-Tenth of the
members of the barrio assembly.
No meeting of the barrio assembly shall take place
unless notice is given one week prior to the meeting
except in matters involving public safety or security in
which case notice within a reasonable time shall be
sufficient. The barrio captain, or in his absence, the
councilman acting as barrio captain, or any assembly
member selected during the meeting, shall act as
presiding officer at all meetings of the barrio assembly.
The barrio secretary or in his absence, any member
designated by the presiding officer to act as secretary
shall discharge the duties of secretary of the barrio
assembly.
For the purpose of conducting business and taking any
official action in the barrio assembly, it is necessary
that at least one-fifth of the members of the barrio
assembly be present to constitute a quorum. All actions
shall require a majority vote of these present at the
meeting there being a quorum.
Sec. 5. Powers of the barrio assembly. — The powers of
the barrio assembly shall be as follows:
a. To recommend to the barrio
council the adoption of measures
for the welfare of the barrio;
b. To decide on the holding of a
plebiscite as provided for in Section
6 of this Act;
c. To act on budgetary and
supplemental appropriations and
special tax ordinances submitted
for its approval by the barrio
council; and
d. To hear the annual report council
concerning the activities and
finances of the assembly.
Sec. 6. Plebiscite. — A plebiscite may be held in the
barrio when authorized by a majority vote of the
members present in the barrio assembly, there being a
quorum, or when called by at least four members of
the barrio council; Provided, however, That no
plebiscite shall be held until after thirty days from its
approval by either body, and such plebiscite has been
given the widest publicity in the barrio, stating the
date, time, and place thereof, the questions or issues to
be decided, action to be taken by the voters, and such
other information relevant to the holding of the
plebiscite.
All duly registered barrio assembly members qualified
to vote may vote in the plebiscite. Voting procedures
may be made either in writing as in regular election,
and/or declaration by the voters to the board of
election tellers. The board of election tellers shall be
the same board envisioned by section 8, paragraph 2 of
this Act, in case of vacancies in this body, the barrio
council may fill the same.
A plebiscite may be called to decide on the recall of any
member of the barrio council. A plebiscite shall be
called to approve any budgetary, supplemental
appropriations or special tax ordinances.
For taking action on any of the above enumerated
measures, majority vote of all the barrio assembly
members registered in the list of barrio secretary is
necessary.
xxx xxx xxx
Sec 10. Qualifications of voters and candidates. —
Every citizen of the Philippines, twenty-one years of
age or over, able to read and write, who has been a
resident of the barrio during the six months
immediately preceding the election, duly registered in
the list of voters kept by the barrio secretary, who is
not otherwise disqualified, may vote or be a candidate
in the barrio elections.
Page 123 of 158
The following persons shall not be qualified to vote:
a. Any person who has been
sentenced by final judgment to
suffer one year or more of
imprisonment, within two years
after service of his sentence;
b. Any person who has violated his
allegiance to the Republic of the
Philippines; and
c. Insane or feeble-minded persons.
All these barrio assembly members, who are at least 18 years of age,
although illiterate, may vote at the plebiscite on the recall of any member
of the barrio council or on a budgetary, supplemental appropriation, or
special ordinances, a valid action on which requires "a majority vote of all
of the barrio assembly members registered in the list of the barrio
secretary" (par. 5, Sec. 6, R.A. No. 3590). Such plebiscite may be authorized
by a majority vote of the members present in the barrio assembly, there
being a quorum (par. 1, Sec. 6).
However, in the case of election of barrio officials, only Filipino citizens,
who are at least 21 years of age, able to read and write, residents of the
barrio during the 6 months immediately preceding the election and duly
registered in the list of voters kept by the barrio secretary, not otherwise
disqualified, may vote (Sec. 10, R.A. No. 3590).
Paragraph 2 of Section 6 likewise authorizes open voting as it provides that
"voting procedures may be made ... either in writing as in regular elections,
and/or declaration by the voters to the board of election tellers."
That said paragraph 2 of Section 6 provides that "all duly registered barrio
assembly members qualified to vote may vote in the plebiscite," cannot
sustain the position of petitioners in G.R. No. L-36165 that only those who
are 21 years of age and above and who possess all other qualifications of a
voter under Section 10 of R.A. No. 3590, can vote on the plebiscites
referred to in Section 6; because paragraph 3 of Section 6 does not
expressly limit the voting to those with the qualifications under Section 10
as said Section 6 does not distinguish between those who are 21 or above
on the one hand and those 18 or above but below 21 on the other, and
whether literate or not, to constitute a quorum of the barrio assembly.
Consequently, on questions submitted for plebiscite, all the registered
members of the barrio assembly can vote as long as they are 18 years of

age or above; and that only those who are 21 years of age or over and can
read and write, can vote in the elections of barrio officials.
Otherwise there was no sense in extending membership in the barrio
assembly to those who are at least 18 years of age, whether literate or not.
Republic Act No. 3590 could simply have restated Section 4 of Republic Act
No. 2370, the old Barrio Charter, which provided that only those who are
21 and above can be members of the barrio assembly.
Counsels Salonga and Tañada as well as all the petitioners in L-36165 and
two of the petitioners in L-36164 participated in the enactment of Republic
Act No. 3590 and should have known the intendment of Congress in
expanding the membership of the barrio assembly to include all those 18
years of age and above, whether literate or not.
If Congress in the exercise of its ordinary legislative power, not as a
constituent assembly, can include 18-year olds as qualified electors for
barrio plebiscites, this prerogative can also be exercised by the Chief
Executive as delegate of the Constitutional Convention in regard to the
plebiscite on the 1973 Constitution.
As heretofore stated, the statement by the President in Presidential
Proclamation No. 1102 that the 1973 Constitution was overwhelmingly
ratified by the people through the Citizens' Assemblies in a referendum
conducted from January 10 to 15, 1973, should be accorded the
presumption of correctness; because the same was based on the
certification by the Secretary of the Department of Local Government and
Community Development who tabulated the results of the referendum all
over the country. The accuracy of such tabulation and certification by the
said Department Secretary should likewise be presumed; because it was
done in the regular performance of his official functions aside from the fact
that the act of the Department Secretary, as an alter ego of the President,
is presumptively the act of the President himself unless the latter
disapproves or reprobates the same (Villena vs. Secretary of Interior, 67
Phil. 451 ). The truth of the certification by the Department Secretary and
the Chief Executive on the results of the referendum, is further
strengthened by the affidavits and certifications of Governor Isidro
Rodriguez of Rizal, Mayor Norberto S. Amoranto of Quezon City and
Councilor Eduardo T. Parades of Quezon City.
The procedure for the ratification of the 1937 amendment on woman
suffrage, the 1939 amendment to the ordinance appended to the 1935
Constitution, the 1940 amendments establishing the bicameral Congress,
creating the Commission on Elections and providing for two consecutive
terms for the President, and the 1947 parity amendment, cannot be
invoked; because those amendments were proposed by the National
Assembly as expressly authorized by Article V of the 1935 Constitution
respecting woman suffrage and as a constituent assembly in all the other
amendments aforementioned and therefore as such, Congress had also the
authority to prescribe the procedure for the submission of the proposed
amendments to the 1935 Constitution.
In the cases at bar, the 1973 Constitution was proposed by an independent
Constitutional Convention, which as heretofore discussed, has the equal
power to prescribe the modality for the submission of the 1973
Constitution to the people for ratification or delegate the same to the
President of the Republic.
The certification of Governor Isidro Rodriguez of Rizal and Mayor Norberto
Amoranto could be utilized as the basis for the extrapolation of the
Citizens' Assemblies in all the other provinces, cities and municipalities in
all the other provinces, cities and municipalities, and the affirmative votes
in the Citizens' Assemblies resulting from such extrapolation would still
constitute a majority of the total votes cast in favor of the 1973
Constitution.
As claimed by petitioners in L-36165, against the certification of the
Department of Local Government and Community Development that in
Rizal there were 1,126,000 Yes votes and 100,310 No votes, the
certification of Governor Isidro Rodriguez of Rizal, shows only 614,157 Yes
votes against 292,530 No votes. In Cavite province, there were 249,882 Yes
votes against 12,269 No votes as disclosed in Annex 1-A of respondents'
Compliance (the certification by the Department of Local Government and
Community Development), while the alleged certification of Governor Lino
Bocalan of Cavite shows only 126,163 Yes votes and 5,577 No votes. If such
a ratio is extended by way of extrapolation to the other provinces, cities
and towns of the country, the result would still be an overwhelming vote in
favor of the 1973 Constitution.
The alleged certification by Governor Lino Bocalan of Cavite, is not true;
because in his duly acknowledged certification dated March 16, 1973, he
states that since the declaration of martial law and up to the present time,
he has been under house arrest in his residence in Urdaneta Village,
Makati, Rizal; that he never participated in the conduct of the Citizens'
Assemblies on January 10 15, 1973 in the province of Cavite; that the
acting chairman and coordinator of the Citizens' Assemblies at that time
was Vice-Governor Dominador Camerino; and that he was shown a letter
for his signature during the conduct of the Citizens' Assemblies, which he
did not sign but which he referred to Vice-Governor Camerino (Annex 1-
Rejoinder of the Sol. Gen. dated March 20, 1973).
Mayor Pablo Cuneta likewise executed an affidavit dated March 16, 1973
stating that on January 15, 1973, he caused the preparation of a letter
addressed to Secretary Jose Roño of the Department of Local Government
and Community Development showing the results of the referendum in
Pasay City; that on the same day, there were still in any Citizens'
Page 124 of 158
Assemblies holding referendum in Pasay City, for which reason he did not
send the aforesaid letter pending submittal of the other results from the
said Citizens' Assemblies; and that in the afternoon of January 15, 1973, he
indorsed the complete certificate of results on the referendum in Pasay
City to the Office of the President (Annex 5-Rejoinder of Sol. Gen. dated
March 20, 1973).
Pablo F. Samonte, Assistant City Treasurer and Officer in Charge of Pasay
City also issued an affidavit dated March 15, 1973 stating that a certain
Atty. Delia Sutton of the Salonga Law Office asked him for the results of the
referendum; that he informed her that he had in his possession unsigned
copies of such results which may not be considered official as they had
then no knowledge whether the original thereof had been signed by the
mayor; and that in spite of his advice that said unsigned copies were not
official, she requested him if she could give her the unofficial copies
thereof, which he gave in good faith (Annex C-Rejoinder to the Sol. Gen.).
There were 118,010 Yes votes as against 5,588 No votes in the Citizens'
Assemblies of Quezon city (Annex V to Petitioners' Notes in L-36165). The
fact that a certain Mrs. Remedio Gutierrez, wife of alleged barrio treasurer
Faustino Gutierrez, of barrio South Triangle, Quezon City, states that "as far
as we know, there has been no Citizens' Assembly meeting in our Area,
particularly in January of this year," does not necessarily mean that there
was no such meeting in said barrio; for she may not have been notified
thereof and as a result she was not able to attend said meeting. Much less
can it be a basis for the claim that there was no meeting at all in the other
barrios of Quezon City. The barrio captain or the secretary of the barrio
assembly could have been a credible witness.
Councilor Eduardo T. Paredes, chairman of the Secretariat of Quezon City
Ratification and Coordinating Council, certified on March 12, 1973 that as
such chairman he was in charge of the compilation and tabulation of the
results of the referendum among the Citizens' Assemblies in Quezon City
based on the results submitted to the Secretariat by the different Citizens'
Assemblies; but many results of the referendum were submitted direct to
the national agencies having to do with such activity and all of which he has
no knowledge, participation and control (Annex 4 Rejoinder of the Sol.
Gen.).
Governor Isidro Rodriguez of Rizal issued a certification dated March 16,
1973 that he prepared a letter to the President dated January 15, 1973
informing him of the results of the referendum in Rizal, in compliance with
the instruction of the National Secretariat to submit such letter 2 or 3 days
from January 10 to show the trend of voting in the Citizens' Assemblies;
that the figures 614,157 and 292,530 mentioned in said letter were based
on the certificates of results in his possession as of January 14, 1973, which
results were made the basis of the computation of the percentage of
voting trend in the province; that his letter was never intended to show the

final or complete result in the referendum in the province as said
referendum was then still going on from January 14-17, 1973, for which
reason the said letter merely stated that it was only a "summary
result"; and that after January 15, 1973, he sent to the National Secretariat
all the certificates of results in 26 municipalities of Rizal for final tabulation
(Annex 3-Rejoinder of the Sol. Gen.; emphasis supplied).
Lydia M. Encarnacion, acting chief of the Records Section, Department of
Local Government and Community Development, issued a certificate dated
March 16, 1973 that she was shown xerox copies of unsigned letters
allegedly coming from Governor Lino Bocalan dated January 15, 1973 and
marked "Rejoinder Annex Cavite" addressed to the President of the
Philippines through the Secretary of the Department of Local Government
and Community Development and another unsigned letter reportedly from
Mayor Pablo Cuneta dated January 15, 1973 and marked "Rejoinder Annex
Pasay City" addressed to the Secretary of the Department of Local
Government and Community Development; that both xerox copies of the
unsigned letters contain figures showing the results of the referendum of
the Citizens' Assemblies in those areas; and that the said letters were not
received by her office and that her records do not show any such
documents received by her office (Annex 2-Rejoinder of the Sol. Gen.).
Thus it would seem that petitioners in L-36165 have attempted to deceive
this Court by representing said unsigned letters and/or certificates as duly
signed and/or containing the complete returns of the voting in the Citizens'
Assemblies.
The observation We made with respect to the discrepancy between the
number of Yes votes and No votes contained in the summary report of
Governor Rodriguez of Rizal as well as those contained in the alleged
report of Governor Lino Bocalan of Cavite who repudiated the same as not
having been signed by him for he was then under house arrest, on the one
hand, and the number of votes certified by the Department of Local
Government and Community Development, on the other, to the effect that
even assuming the correctness of the figures insisted on by counsel for
petitioners in L-36165, if they were extrapolated and applied to the other
provinces and cities of the country, the Yes votes would still be
overwhelmingly greater than the No votes, applies equally to the alleged
discrepancy between the figures contained in the certification of the
Secretary of the Department of Local Government and Community
Development and the figures furnished to counsel for petitioners in L-
36165 concerning the referendum in Camarines Sur, Bataan and Negros
Occidental.
The fact that the referendum in the municipality of Pasacao, Camarines
Sur, shows that there were more votes in favor of the plebiscite to be held
later than those against, only serve to emphasize that there was freedom
of voting among the members of the Citizens' Assemblies all over the
country during the referendum from January 10 to 15, 1973 (Annex-6
Camarines Sur to Rejoinder of Petitioners in L-36165). If there was no such
freedom of choice, those who wanted a plebiscite would not outnumber
those against holding such plebiscite.
The letter of Governor Felix O. Alfelor, Sr. dated January 1973 confirms the
"strong manifestation of approval of the new Constitution by almost 97%
by the members of the Citizens' Assemblies in Camarines Sur" (Annex-
Camarines Sur to Rejoinder of Petitioners in L-36165).
The report of Governor Efren B. Pascual of Bataan shows that the members
of the Citizens' Assemblies voted overwhelmingly in favor of the new
Constitution despite the fact that the second set of questions including the
question "Do you approve of the new Constitution?" was received only on
January 10. Provincial Governor Pascual stated that "orderly conduct and
favorable results of the referendum" were due not only to the coordinated
efforts and cooperation of all teachers and government employees in the
area but also to the enthusiastic participation by the people, showing
"their preference and readiness to accept this new method of government
to people consultation in shaping up government policies." (Annex-Bataan
to Rejoinder of Petitioners in L-36165).
As heretofore stated, it is not necessary that voters ratifying the new
Constitution are registered in the book of voters; it is enough that they are
electors voting on the new Constitution (Bott vs. Wurts, 40 A 740 [1898];
43 A 744, 881 [1899]; 45 LRA 251). The fact that the number of actual
voters in the referendum in certain localities may exceed the number of
voters actually registered for the 1971 elections, can only mean that the
excess represents the qualified voters who are not yet registered including
those who are at least 15 years of age and the illiterates. Although ex-
convicts may have voted also in the referendum, some of them might have
been granted absolute pardon or were sentenced to less than one year
imprisonment to qualify them to vote (Sec. 201, 1971 Rev. Election Code).
At any rate, the ex-convicts constitute a negligible number, discounting
which would not tilt the scale in favor of the negative votes.
Similarly, the fact that Mayor Marcial F. Samson of Caloocan City, who
belongs to the Liberal Party, stated in his letter dated March 13, 1973 that
he does not "feel authorized by the proper authorities to confirm or deny
the data" concerning the number of participants, the Yes votes and No
votes in the referendum on the new Constitution among the members of
the Citizens' Assemblies in Caloocan City, does not necessarily give rise to
the inference that Mayor Samson of Caloocan City is being intimidated,
having been recently released from detention; because in the same letter
of Mayor Samson, he suggested to counsel for petitioners in L-36165 that
he can secure "the true and legitimate results of the referendum" from the
Office of the President (Annex Caloocan-B to Rejoinder of Petitioners in L-
36165). Why did not learned and eminent counsel heed such suggestion?
Page 125 of 158
Counsel for petitioners in L-36165, to sustain their position, relies heavily
on the computation of the estimated turnover in the Citizens' Assemblies
referendum on January 10 to 15, 1973 by a certain Professor Benjamin R.
Salonga, of the Mapua Institute of Technology, ostensibly a close relative of
former Senator Jovito R. Salonga, eminent counsel for petitioners in L-
36165 (Annex M-as amended, to Consolidated Rejoinder of petitioners in L-
36165 to the Notes of Arguments and Memorandum of respondents).
Professor Salonga is not a qualified statistician, which all the more impairs
his credibility. Director Tito A. Mijares of the Bureau of Census and
Statistics, in his letter dated March 16, 1973 address to the Secretary of the
Department of Local Government and Community Development, refutes
the said computation of Professor Benjamin R. Salonga, thus:
1) I do not quite understand why (Problem 1) all
qualified registered voters and the 15-20-year-old
youths (1972) will have to be estimated in order to give
a 101.9% estimate of the percentage participation of
the "15-20 year old plus total number of qualified
voters" which does not deem to answer the problem.
This computation apparently fails to account for some
5.6 million persons "21 years old and over" who were
not registered voters (COMELEC), but who might be
qualified to participate at the Citizen's Assembly.
2) The official population projection of this office
(medium assumption) for "15 year olds and over" as of
January 1, 1973 is 22.506 million. If total number of
participants at the Citizens' Assembly Referendum held
on January 10-15, 1973 was 16.702 million,
participation rate will therefore be the ratio of the
latter figure to the former which gives 74.2%.
3) 1 cannot also understand c-2 "Solution to Problem
11." The "difference or implied number of 15-20 year
olds" of 5,039,906 would represent really not only all
15-year olds and over who participated at the Citizens'
Assembly but might not have been registered voters at
the time, assuming that all the 11,661,909 registered
voted at Citizens' Assembly. Hence, the "estimate
percentage participation of 15-20 years olds" of 105.6%
does not seem to provide any meaningful information.
To obtain the participation rate of "15-20 years old"
one must divide the number in this age group, which
was estimated to be 4.721 million as of January 1, 1973
by the population of "15 years old and over" for the
same period which was estimated to be 22.506 million,
giving 21.0%.

In Problem III, it should be observed that registered
voters also include names of voters who are already
dead. It cannot therefore be assumed that all of them
participated at the Citizens' Assembly. It can therefore
be inferred that "a total number of persons 15 and over
unqualified/disqualified to vote" will be more than
10,548,197 and hence the "difference or implied
number of registered voters that participated" will be
less than 6,153,618.
I have reservations on whether an "appropriate
number of qualified voters that supposedly voted"
could be meaningfully estimated.
5) The last remark will therefore make the ratio (a)
[Solution to Problem] more than 1.71 and that for (b),
accordingly, will also be less than 36.8%." (Annex F
Rejoinder).
From the foregoing analysis of the Director of Census and Statistics as of
January 21, 1973, the official population projection for 15-year olds and
over is 22,506,000. If 16,702,000 voted in the referendum, the
participation ratio would be 74.2% of 22,506,000.
If the registered electors as of the election of November 8, 1971 numbered
11,661,909, the difference between 16,702,000 who participated in the
referendum and the registered electors of 11,661,909 for the November 8,
1971 elections, is 5,040,091, which may include not only the 15-year olds
and above but below 21 but also the qualified electors who were not
registered before the November 8, 1971 elections as well as illiterates who
are 15 years old and above but below 21.
Moreover, in the last Presidential election in November, 1969, We found
that the incumbent President obtained over 5,000,000 votes as against
about 3,000,000 votes for his rival LP Senator Sergio Osmeña, Jr., garnering
a majority of from about 896,498 to 1,436,118 (Osmeña, Jr. vs. Marcos,
Presidential Election Contest No. 3, Jan. 8, 1973).
The petitioners in all the cases at bar cannot state with justification that
those who voted for the incumbent President in 1969 did not vote in favor
of the 1973 Constitution during the referendum from January 10 to 15,
1973. It should also be stressed that many of the partisans of the President
in the 1969 Presidential elections, have several members in their families
and relatives who are qualified to participate in the referendum because
they are 15 years or above including illiterates, which fact should
necessarily augment the number of votes who voted for the 1973
Constitution.
(6) It is also urged that martial law being the rule of force, is necessarily
inconsistent with freedom of choice, because the people fear to disagree
with the President and Commander-in-Chief of the Armed Forces of the
Philippines and therefore cannot voice views opposite to or critical of the
position of the President on the 1973 Constitution and on the mode of its
ratification.
It is also claimed or urged that there can be no free choice during martial
law which inevitably generates fear in the individual. Even without martial
law, the penal, civil or administrative sanction provided for the violation of
ordinarily engenders fear in the individual which persuades the individual
to comply with or obey the law. But before martial law was proclaimed,
many individuals fear such sanctions of the law because of lack of effective
equal enforcement or implementation thereof — in brief,
compartmentalized justice and extraneous pressures and influences
frustrated the firm and just enforcement of the laws. The fear that is
generated by martial law is merely the fear of immediate execution and
swift enforcement of the law and therefore immediate infliction of the
punishment or sanction prescribed by the law whenever it is transgressed
during the period of martial law. This is not the fear that affects the voters'
freedom of choice or freedom to vote for or against the 1973 Constitution.
Those who cringe in fear are the criminals or the law violators. Surely,
petitioners do not come under such category.
(7) Petitioners likewise claim that open voting by viva voce or raising of
hands violates the secrecy of the ballot as by the election laws. But the
1935 Constitution does not require secret voting. We search in vain for
such guarantee or prescription in said organic law. The Commission on
Elections under the 1940 Amendment, embodied as Article X is merely
mandated to insure "free, orderly and honest election." Congress, under its
plenary law-making authority, could have validly prescribed in the election
law open voting in the election of public officers, without trenching upon
the Constitution. Any objection to such a statute concerns its wisdom or
propriety, not its legality or constitutionality. Secret balloting was
demanded by partisan strife in elections for elective officials. Partisanship
based on party or personal loyalties does not generally obtain in a
plebiscite on proposed constitutional amendments or on a new
Constitution. We have seen even before and during martial law that voting
in meetings of government agencies or private organizations is usually
done openly. This is specially true in sessions of Congress, provincial
boards, city councils, municipal boards and barrio councils when voting on
national or local issues, not on personalities.
Then again, open voting was not a universal phenomenon in the Citizens'
Assemblies. It might have been true in certain areas, but that does not
necessarily mean that it was done throughout the country.
Page 126 of 158
The recent example of an open voting is the last election on March 3, 1973
of the National Press Club officers who were elected by acclamation
presided over by its former president, petitioner Eduardo Monteclaro in L-
36236 (see Bulletin Today, p. 8, March 3, 1973 issue). There can be no
more hardboiled group of persons than newspapermen, who cannot say
that voting among them by acclamation was characterized by fear among
the members of the National Press Club.
Moreover, petitioners would not be willing to affirm that all the members
of the citizenry of this country are against the new Constitution. They will
not deny that there are those who favor the same, even among the
400,000 teachers among whom officers of the Department of Education
campaigned for the ratification of the new Constitution.
Not one of the petitioners can say that the common man — farmer,
laborer, fisherman, lowly employee, jeepney driver, taxi driver, bus driver,
pedestrian, salesman, or salesgirl — does not want the new Constitution,
or the reforms provided for therein.
(8) Petitioners likewise claim that there was no sufficient publicity given to
the new Constitution. This is quite inaccurate; because even before the
election in November, 1970 of delegates to the Constitutional Convention,
the proposed reforms were already discussed in various forums and
through the press as well as other media of information. Then after the
Constitutional Convention convened in June, 1971, specific reforms
advanced by the delegates were discussed both in committee hearings as
well as in the tri-media — the press, radio and television. Printed materials
on the proposed reforms were circulated by their proponents. From June,
1971 to November 29, 1972, reforms were openly discussed and debated
except for a few days after the proclamation of martial law on September
21, 1972. From the time the Constitutional Convention reconvened in
October, 1972 until January 7, 1973, the provisions of the new Constitution
were debated and discussed in forums sponsored by private organizations
universities and debated over the radio and on television. The Philippines is
a literate country, second only to Japan in the Far East, and more literate
perhaps than many of mid-western and southern states of the American
Union and Spain. Many residents in about 1,500 towns and 33,000 barrios
of the country have radios. Even the illiterates listened to radio broadcasts
on and discussed the provisions of the 1973 Constitution.
As reported by the eminent and widely read columnist, Teodoro Valencia in
his column in Bulletin Today, March 4, 1973 issue, "Otto Lang, Hollywood
producer director (Tora, Tora, Tora) went around the country doing a 30-
minute documentary on the Philippines for American television stated that
what impressed him most in his travel throughout the country was the
general acceptance of the New Society by the people which he saw in his 6-
week travel from Aparri to Jolo."

The report of Frank Valeo (Bulletin Today, March 3 and 4, 1973 and Daily
Express, March 3, and Sunday Express, March 4), Secretary of the United
States Senate, who conducted a personal survey of the country as delegate
of Senator Mike Mansfield, Chairman, Committee on US-Philippine
relations, states:
Martial law has paved the way for a re-ordering of the
basic social structure of the Philippines. President
Marcos has been prompt and sure-footed in using the
power of presidential decree under martial law for this
purpose. He has zeroed in on areas which have been
widely recognized as prime sources of the nation's
difficulties — land tenancy, official corruption, tax
evasion and abuse of oligarchic economic power.
Clearly, he knows the targets. What is not yet certain is
how accurate have been his shots. Nevertheless, there
is marked public support for his leadership and tangible
alternatives have not been forthcoming. That would
suggest that he may not be striking too far from the
mark.
The United States business community in Manila seems
to have been re-assured by recent developments ... .
(Emphasis supplied.)
Petitioners cannot safely assume that all the peaceful citizens of the
country, who constitute the majority of the population, do not like the
reforms stipulated in the new Constitution, as well as the decrees, orders
and circulars issued to implement the same. It should be recalled, as
hereinbefore stated, that all these reforms were the subject of discussion
both in the committee hearings and on the floor of the Constitutional
Convention, as well as in public forums sponsored by concerned citizens or
civic organizations at which Con-Con delegates as well as other
knowledgeable personages expounded their views thereon and in all the
media of information before the proclamation of martial law on September
21, 1972. This is the reason why the Constitutional Convention, after
spending close to P30 million during the period from June 1, 1971 to
November 29, 1972, found it expedient to accelerate their proceedings in
November, 1972 because all views that could possibly be said on the
proposed provisions of the 1973 Constitution were already expressed and
circulated. The 1973 Constitution may contain some unwise provisions. But
this objection to such unwise or vague provisions, as heretofore stated,
refers to the wisdom of the aforesaid provisions, which issue is not for this
Court to decide; otherwise We will be substituting Our judgment for the
judgment of the Constitutional Convention and in effect acting as a
constituent assembly.
VI
PRESIDENT AS COMMANDER IN CHIEF EXERCISES
LEGISLATIVE POWERS DURING MARTIAL LAW.
The position of the respondent public officers that undermartial law, the
President as Commander-in-Chief is vested with legislative powers, is
sustained by the ruling in the 1949 case of Kuroda vs. Jalandoni, et al. (83
Phil. 171, 177-178) which reiterates the 1945 case of Yamashita vs.
Styer (75 Phil. 563, 571-72). The trial of General Kuroda was after the
surrender of Japan on October 2, 1945 (23 Encyc. Brit. 1969 ed., p. 799)
and hence no more martial law in the Philippines.
... Consequently, in the promulgation and enforcement
of Executive Order No. 68, the President of the
Philippines has acted in conformity with the generally
accepted principles and policies of international law
which are part of our Constitution.
The promulgation of said executive order is an exercise
by the President of his powers as Commander in Chief
of all our armed forces, as upheld by this Court in the
case of Yamashita vs. Styver (L-129, 42 Off. Gaz., 664)
when we said —
"War is not ended simply because
hostilities have ceased. After
cessation of armed hostilities,
incidents of war may remain
pending which should be disposed
of as in time of war. "An important
incident to a conduct of war is the
adoption measures by the military
command not only to repel and
defeat the enemies but to seize and
subject to disciplinary measures
those enemies who in their attempt
to thwart or impede our military
effort have violated the law of war."
(Ex parte Quirin, 317 U.S., 1; 63 Sup.
Ct., 2.) Indeed, the power to create
a military commission for the trial
and punishment of war criminals is
an aspect of waging war. And, in
the language of a writer, a military
commission "has jurisdiction so
long as the technical state of war
continues. This includes the period
of an armistice, or military
occupation, up to the effective date
Page 127 of 158
of treaty of peace, and may extend
beyond, by treaty agreement."
(Cowles, Trial of War Criminals by
Military Tribunals, American Bar
Association Journal, June, 1944).
Consequently, the President as Commander-in-Chief is
fully empowered to consummate this unfinished aspect
of war, namely the trial and punishment of war
criminals, through the issuance and enforcement of
Executive Order No. 68. (83 Phil. 177-178; emphasis
supplied).
Chief Justice Stone of the United States Supreme Court likewise appears to
subscribe to this view, when, in his concurring opinion in Duncan vs.
Kahanamoku (327 U.S. 304 [1946]), he defined martial law as "the exercise
of the power which resides in the executive branch of the government to
preserve order and insure the public safety in times of emergency, when
other branches of the government are unable to function, or their
functioning would itself threaten the public safety." (Emphasis supplied).
There is an implied recognition in the aforesaid definition of martial law
that even in places where the courts can function, such operation of the
courts may be affected by martial law should their "functioning ... threaten
the public safety." It is possible that the courts, in asserting their authority
to pass upon questions which may adversely affect the conduct of the
punitive campaign against rebels, secessionists, dissidents as well as
subversives, martial law may restrict such judicial function until the danger
to the security of the state and of the people shall have been decimated.
The foregoing view appears to be shared by Rossiter when he stated:
Finally, this strong government, which in some
instances might become an outright dictatorship, can
have no other purposes than the preservation of the
independence of the state, the maintenance of the
existing constitutional order, and the defense of the
political and social liberties of the people. It is
important to recognize the true and limited ends of any
practical application of the principle of constitutional
dictatorship. Perhaps the matter may be most clearly
stated in this way: the government of a free state is
proceeding on its way and meeting the usual problems
of peace and normal times within the limiting
framework of its established constitutional order. The
functions of government are parceled out among a
number of mutually independent offices and
institutions; the power to exercise those functions is
circumscribed by well-established laws, customs, and

constitutional prescriptions; and the people for whom
this government was instituted are in possession of a
lengthy catalogue of economic, political, and social
rights which their leaders recognize as inherent and
inalienable. A severe crisis arises — the country is
invaded by a hostile power, or a dissident segment of
the citizenry revolts, or the impact of a world-wide
depression threatens to bring the nation's economy in
ruins. The government meets the crisis by assuming
more powers and respecting fewer rights. The result is a
regime which can act arbitrarily and even dictatorially
in the swift adaption of measures designed to save the
state and its people from the destructive effects of the
particular crisis. And the narrow duty to be pursued by
this strong government, this constitutional
dictatorship? Simply this and nothing more: to end the
crisis and restore normal times. The government
assumes no power and abridges no right unless plainly
indispensable to that end; it extends no further in time
than the attainment of that end; and it makes no
alteration in the political, social and economic structure
of the nation which cannot be eradicated with the
restoration of normal times. In short, the aim of
constitutional dictatorship is the complete restoration
of the status quo ante bellum. This historical fact does
not comport with philosophical theory, that there never
has been a perfect constitutional dictatorship, is an
assertion that can be made without fear of
contradiction. But this is true of all institutions of
government, and the principle of constitutional
dictatorship remains eternally valid no matter how
often and seriously it may have been violated in
practice. (Constitutional Dictatorship, 1948 ed., by
Clinton L. Rossiter, p. 7; emphasis supplied.)
Finally, Rossiter expressly recognizes that during martial law, the Chief
Executive exercises legislative power, whether of temporary or permanent
character, thus:
The measures adopted in the prosecution of a
constitutional dictatorship should never be permanent
in character or effect. Emergency powers are strictly
conditioned by their purpose and this purpose is the
restoration of normal conditions. The actions directed
to this end should therefore be provisional. For
example, measures of a legislative nature which work a
lasting change in the structure of the state or constitute
permanent derogations from existing law should not be
adopted under an emergency enabling act, at least not
without the positively registered approval of the
legislature. Permanent laws, whether adopted in
regular or irregular times, are for parliaments to enact.
By this same token, the decisions and sentences of
extraordinary courts should be reviewed by the regular
courts after the termination of the crisis.
But what if a radical act of permanent character, one
working lasting changes in the political and social
fabric, is indispensable to the successful prosecution of
the particular constitutional dictatorship? The only
answer can be: it must be resolutely taken and openly
acknowledged. President Lincoln found it necessary to
proceed to the revolutionary step of emancipation in
aid of his conservative purpose of preserving the Union;
as a constitutional dictator he had a moral right to take
this radical action. Nevertheless, it is imperative that
any action with such lasting effects should eventually
receive the positive approval of the people or of their
representatives in the legislature. (P. 303, emphasis
supplied).
From the foregoing citations, under martial law occasioned by severe crisis
generated by revolution, insurrection or economic depression or
dislocation, the government exercises more powers and respects fewer
rights in order "to end the crisis and restore normal times." The
government can assume additional powers indispensable to the
attainment of that end — the complete restoration of peace. In our
particular case, eradication of the causes that incited rebellion and
subversion as secession, is the sine qua non to the complete restoration of
normalcy. Exercise of legislative power by the President as Commander in
Chief, upon his proclamation of martial law, is justified because, as he
professes, it is directed towards the institution of radical reforms essential
to the elimination of the causes of rebellious, insurgent or subversive
conspiracies and the consequent dismantling of the rebellious, insurgent or
subversive apparatus.
Hence, the issuance of Presidential Decree Nos. 86 and 86-A as well as
Proclamation No. 1102 is indispensable to the effectuation of the reforms
within the shortest possible time to hasten the restoration of normalcy.
"Must the government be too strong for the liberties of the people; or
must it be too weak to maintain its existence?" That was the dilemma that
vexed President Lincoln during the American Civil War, when without
express authority in the Constitution and the laws of the United States, he
suspended one basic human freedom — the privilege of the writ of habeas
corpus — in order to preserve with permanence the American Union, the
Page 128 of 158
Federal Constitution of the United States and all the civil liberties of the
American people. This is the same dilemma that presently confronts the
Chief Executive of the Republic of the Philippines, who, more than the
Courts and Congress, must, by express constitutional mandate, secure the
safety of our Republic and the rights as well as lives of the people against
open rebellion, insidious subversion secession. The Chief Executive
announced repeatedly that in choosing to proclaim martial law, the power
expressly vested in him by the 1935 Constitution (Sec. 10[2], Art. VII, 1935
Constitution) to insure our national and individual survival in peace and
freedom, he is in effect waging a peaceful, democratic revolution from the
center against the violent revolution and subversion being mounted by the
economic oligarchs of the extreme right, who resist reforms to maintain
their economic hegemony, and the communist rebels a Maoist oriented
secessionists of the extreme left who demand swift institution of reforms.
In the exercise of his constitutional and statutory powers, to save the state
and to protect the citizenry against actual and threatened assaults from
insurgents, secessionists and subversives, doctrinaire concepts and
principles, no matter how revered they may be by jurisprudence and time,
should not be regarded as peremptory commands; otherwise the dead
hand of the past will regulate and control the security and happiness of the
living present. A contrary view would be to deny the self-evident
proposition that constitutions and laws are mere instruments for the well-
being, peace, security and prosperity of the country and its citizenry. The
law as a means of social control is not static but dynamic. Paraphrasing Mr.
Justice Frankfurter, the Constitution is neither a printed finality nor the
imprisonment of the past, but the enfolding of the future. In the vein of
Mr. Justice Holmes, the meaning of the words of the Constitution is not to
be determined by merely opening a dictionary. Its terms must be
construed in the context of the realities in the life of a nation it is intended
to serve. Because experience may teach one generation to doubt the
validity and efficacy of the concepts embodied in the existing Constitution
and persuade another generation to abandon them entirely, heed should
be paid to the wise counsel of some learned jurists that in the resolution of
constitutional questions — like those posed before Us — the blending of
idealism and practical wisdom or progressive legal realism should be
applied (see Alexander M. Bickel, the Supreme Court and the Idea of
Progress, 1970 ed., pp. 19-21). To Justice Frankfurter, law is "a vital agency
for human betterment" and constitutional law "is applied politics using the
word in its noble sense." (Frankfurter, Law and Politics, 1939 ed., pp. 3 & 6;
emphasis supplied). Justice Brandeis gave utterance to the truth that "Our
Constitution is not a straight jacket. It is a living organism. As such, it is
capable of growth — or expansion and adaptation to new conditions.
Growth implies changes, political, economic and social." (Brandeis Papers,
Harvard Law School; emphasis supplied). Harvard Professor Thomas Reed
Powell emphasizes "practical wisdom," for "the logic of constitutional law is
the common sense of the Supreme Court." (Powell, the Validity of State
Legislation, under the Webb-Kenyon Law, 2 Southern Law Quarterly, pp.
112, 138-139, cited in Bickel's Opus, supra; emphasis supplied).

The eternal paradox in this finite world of mortal and fallible men is that
nothing is permanent except change. Living organisms as well as man-
made institutions are not immutable. Civilized men organize themselves
into a State only for the purpose of serving their supreme interest — their
welfare. To achieve such end, they created an agency known as the
government. From the savage era thru ancient times, the Middle Ages, the
Dark Ages and the Renaissance to this era of sophisticated electronics and
nuclear weaponry, states and governments have mutated in their search
for the magic instrument for their well-being. It was trial and error then as
it is still now. Political philosophies and constitutional concepts, forms and
kinds of government, had been adopted, overturned, discarded, re-
adopted or modified to suit the needs of a given society at a particular
given epoch. This is true of constitutions and laws because they are not
"the infallible instruments of a manifest destiny." No matter how we want
the law to be stable, it cannot stand still. As Mr. Justice Holmes aptly
observed, every "constitution is an experiment as all life is an experiment,"
(Abrahms vs. U.S., 250 US 616, 631) for "the life of the law is not logic, but
experience." In the pontifical tones of Mr. Justice Benjamin Nathan
Cardozo, "so long as society is inconstant, there can be no constancy in
law," and "there will be change whether we will it or not." As Justice Jose P.
Laurel was wont to say, "We cannot, Canute-like, command the waves of
progress to halt."
Thus, political scientists and jurists no longer exalt with vehemence a
"government that governs least." Adherents there are to the poetic dictum
of Alexander Pope: "For forms of government let fools contest; whatever is
best administered is best." (Poems of Pope, 1931 Cambridge ed., p. 750). In
between, the shades vary from direct democracy, representative
democracy, welfare states, socialist democracy, mitigated socialism, to
outright communism which degenerated in some countries into
totalitarianism or authoritarianism.
Hence, even the scholar, who advances academic opinions unrelated to
factual situations in the seclusion of his ivory tower, must perforce submit
to the inexorable law of change in his views, concepts, methods and
techniques when brought into the actual arena of conflict as a public
functionary — face to face with the practical problems of state,
government and public administration. And so it is that some learned
jurists, in the resolution of constitutional issues that immediately affect the
lives, liberties and fortunes of the citizens and the nation, recommend the
blending of idealism with practical wisdom which legal thinkers prefer to
identify as progressive legal realism. The national leader, who wields the
powers of government, must and has to innovate if he must govern
effectively to serve the supreme interests of the people. This is especially
true in times of great crises where the need for a leader with vision,
imagination, capacity for decision and courageous action is greater, to
preserve the unity of people, to promote their well-being, and to insure the
safety and stability of the Republic. When the methods of rebellion and
subversion have become covert, subtle and insidious, there should be a
recognition of the corresponding authority on the part of the Commander-
in-Chief of the Armed Forces to utilize all the available techniques to
suppress the peril to the security of the government and the State.
Over a century and a half ago, Thomas Jefferson, one of the founding
fathers of the American Constitution and former President of the United
States, who personifies the progressive liberal, spoke the truth when he
said that some men "ascribe men of the preceding age a wisdom more
than human, and suppose what they did to be beyond amendment. ... But I
know also, that laws and institutions must go hand in hand with the
progress of the human mind. As that becomes more developed, more
enlightened, as new discoveries are made, new truths disclosed and
manners and opinions change, with the change of circumstances,
institutions must also advance, and keep pace with the times." (Vol. 12,
Encyclopedia Britanica, 1969 ed., p. 989).
The wisdom of the decision of the Chief Executive can only be judged in the
perspective of history. It cannot be adequately and fairly appraised within
the present ambience, charged as it is with so much tension and emotion,
if not partisan passion. The analytical, objective historians will write the
final verdict in the same way that they pronounced judgment on President
Abraham Lincoln who suspended the privilege of the writ of habeas
corpuswithout any constitutional or statutory authority therefor and of
President Franklin Delano Roosevelt who approved the proclamation of
martial law in 1941 by the governor of Hawaii throughout the Hawaiian
territory. President Lincoln not only emancipated the Negro slaves in
America, but also saved the Federal Republic of the United States from
disintegration by his suspension of the privilege of the writ of habeas
corpus, which power the American Constitution and Congress did not then
expressly vest in him. No one can deny that the successful defense and
preservation of the territorial integrity of the United States was due in part,
if not to a great extent, to the proclamation of martial law over the
territory of Hawaii — main bastion of the outer periphery or the outpost of
the American defense perimeter in the Pacific — which protected the
United States mainland not only from actual invasion but also from aerial
or naval bombardment by the enemy. Parenthetically, the impartial
observer cannot accurately conclude that the American Supreme Court
acted with courage in its decision in the cases of Ex parte Milligan and
Duncan vs. Kahanamoku (filed on May 10, 1865 argued on March 5 to 13,
1866, decided on April 3, 1866, and opinion delivered on December 17,
1866) after the lifting of the proclamation suspending the privilege of the
writ of habeas corpus, long after the Civil War and the Second World ended
respectively on April 9 or 26, 18-65 (Vol. 1, Encyclopedia Britannica, 1969
ed., pp. 730, 742) and on September 2, 1945 (Vol. 23, Encyclopedia
Britannica, 1969 ed., p. 799). Was the delay on the part of the American
Supreme Court in deciding these cases against the position of the United
States President — in suspending the privilege of the writ of habeas
Page 129 of 158
corpus in one case and approving the proclamation of martial law in the
other — deliberate as an act of judicial statesmanship and recognition on
their part that an adverse court ruling during the period of such a grave
crisis might jeopardize the survival of the Federal Republic of the United
States in its life-and-death struggle against an organized and well armed
rebellion within its own borders and against a formidable enemy from
without its territorial confines during the last global armageddon?
VIII
DOCTRINE OF SEPARATION OF POWERS PRECLUDES
MANDAMUS AGAINST SENATORS.
In G.R. No. L-36165, mandamus will not lie to compel respondents Gil
Puyat and Jose Roy to convene the Senate of the Philippines even on the
assumption that the 1935 Constitution still subsists; because pursuant to
the doctrine of separation of powers under the 1935 Constitution, the
processes of this Court cannot legally reach a coordinate branch of the
government or its head. This is a problem that is addressed to the Senate
itself for resolution; for it is purely an internal problem of the Senate. If a
majority of the senators can convene, they can elect a new Senate
President and a new Senate President Pro Tempore. But if they have no
quorum, those present can order the arrest of the absent members (Sec.
10[2], Art. VI, 1935 Constitution). If this fails, then there is no remedy
except an appeal to the people. The dictum ubi jus, ubi remedium, is not
absolute and certainly does not justify the invocation of the power of this
Court to compel action on the part of a co-equal body or its leadership.
This was emphasized with sufficient clarity by this Court in the 1949 case of
Avelino vs. Cuenco (83 Phil. 17, 22,24), with which the distinguished
counsels for the petitioners in L-36164 and L-36165 are familiar. We stress
that the doctrine of separation of powers and the political nature of the
controversy such as this, preclude the interposition of the Judiciary to
nullify an act of a coordinate body or to command performance by the
head of such a co-ordinate body of his functions..
Mystifying is the posture taken by counsels for petitioners in referring to
the political question doctrine — almost in mockery — as a magic formula
which should be disregarded by this Court, forgetting that this magic
formula constitutes an essential skein in the constitutional fabric of our
government, which, together with other basic constitutional precepts,
conserves the unity of our people, strengthens the structure of the
government and assures the continued stability of the country against the
forces of division, if not of anarchy.
Moreover, if they have a quorum, the senators can meet anywhere.
Validity of the acts of the Senate does not depend on the place of session;
for the Constitution does not designate the place of such a meeting.
Section 9 of Article VI imposes upon Congress to convene in regular session

every year on the 4th Monday of January, unless a different date is fixed by
law, or on special session called by the President. As former Senator Arturo
Tolentino, counsel for respondents Puyat and Roy in L-36165, stated, the
duty to convene is addressed to all members of Congress, not merely to its
presiding officers. The fact that the doors of Congress are padlocked, will
not prevent the senators — especially the petitioners in L-36165 — if they
are minded to do so, from meeting elsewhere — at the Sunken Gardens, at
the Luneta Independence Grandstand, in any of the big hotels or theaters,
in their own houses, or at the Araneta Coliseum, which is owned by the
father-in-law of petitioner Gerardo Roxas in L-36165.
However, a session by the Senate alone would be purely an exercise in
futility, for it cannot validly meet without the lower House (Sec. 10[5], Art.
VI, 1935 Constitution). Hence, this petition by five former senators
for mandamus in L-36165 is useless.
And as pointed out by former Senator Arturo Tolentino, counsel for
respondents Puyat and Roy, mandamus will lie only if there is a law
imposing on the respondents the duty to convene the body. The rule
imposing such a duty invoked by petitioners in L-36165 is purely an internal
rule of the Senate; it is not a law because it is not enacted by both Houses
and approved by the President.
The Constitutional provision on the convening of Congress, is addressed to
the individual members of the legislative body (Sec. 9, Art. VI of 1935
Constitution).
IX
TO NULLIFY PROCLAMATION NO. 1102 AND 1973
CONSTITUTION REQUIRES EIGHT OR TEN VOTES OF
SUPREME COURT.
The petitioners in L-36164 and L-36236 specifically pray for a declaration
that the alleged ratification of the 1973 Constitution is null and void and
that the said 1973 Constitution be declared unenforceable and inoperative.
As heretofore stated, Proclamation No. 1102 is an enactment of the
President as Commander-in-Chief during martial law as directly delegated
to him by Section 10(2) of Article VII of the 1935 Constitution.
A declaration that the 1973 Constitution is unenforceable and inoperative
is practically deciding that the same is unconstitutional. The proposed
Constitution is an act of the Constitutional Convention, which is co-equal
and coordinate with as well as independent of either Congress or the Chief
Executive. Hence, its final act, the 1973 Constitution, must have the same
category at the very least as the act of Congress itself.
Consequently, the required vote to nullify Proclamation No. 1102 and the
1973 Constitution should be eight (8) under Section 10 of Article VIII of the
1935 Constitution in relation to Section 9 of the Judiciary Act or Republic
Act No. 296, as amended, or should be ten (10) under Section 2(2) of
Article X of the 1973 Constitution. Should the required vote of eight (8) or
ten (10), as the case may be, for the declaration of invalidity or
unconstitutionality be not achieved, the 1973 Constitution must be
deemed to be valid, in force and operative.
X and rebels by effecting the desired reforms in order to eradicate the evils
ARTICLE OF FAITH
WE yield to no man as devotees of human rights and civil liberties. Like
Thomas Jefferson, We swear "eternal hostility towards any form of tyranny
over the mind of man" as well as towards bigotry and intolerance, which
are anathema to a free spirit. But human rights and civil liberties under a
democratic or republican state are never absolute and never immune to
restrictions essential to the common weal. A civilized society cannot long
endure without peace and order, the maintenance of which is the primary
function of the government. Neither can civilized society survive without
the natural right to defend itself against all dangers that may destroy its
life, whether in the form of invasion from without or rebellion and
subversion from within. This is the first law of nature and ranks second to
none in the hierarchy of all values, whether human or governmental. Every
citizen, who prides himself in being a member or a civilized society under
an established government, impliedly submits to certain constraints on his
freedom for the general welfare and the preservation of the State itself,
even as he reserves to himself certain rights which constitute limitations on
the powers of government. But when there is an inevitable clash between
an exertion of governmental authority and the assertion of individual
freedom, the exercise of which freedom imperils the State and the civilized
society to which the individual belongs, there can be no alternative but to
submit to the superior right of the government to defend and preserve the
State. In the language of Mr. Justice Holmes — often invoked by herein
petitioners — "when it comes to a decision involving its (state life, the
ordinary rights of individuals must yield to what he (the President) deems
the necessities of the moment. Public danger warrants the substitution of
executive process for judicial process. (See Keely vs. Sanders, 99 U.S. 441,
446, 25 L ed. 327, 328). This was admitted with regard to killing men in the
actual clash of arms. And we think it is obvious, although it was disputed,
that the same is true of temporary detention to prevent apprehended
harm." (Moyer vs. Peabody, 212 U.S. 77, 85, 53 L ed., 411, 417).
The rhetoric of freedom alone is not enough. It must be the rhetoric of
freedom with order and security for all, that should be the shibboleth; for
freedom cannot be enjoyed in an environment of disorder and anarchy.
Page 130 of 158
The incumbent Chief Executive who was trying to gain the support for his
reform program long before September 21, 1972, realized almost too late
that he was being deceived by his partymates as well as by the opposition,
who promised him cooperation, which promises were either offered as a
bargaining leverage to secure concessions from him or to delay the
institution of the needed reforms. The people have been victimized by such
bargaining and dilly-dallying. To vert a terrifying blood bath and the
breakdown of the Republic, the incumbent President proclaimed martial
law to save the Republic from being overrun by communists, secessionists
that plague our society, which evils have been employed by the
communists, the rebels and secessionists to exhort the citizenry to rise
against the government. By eliminating the evils, the enemies of the
Republic will be decimated. How many of the petitioners and their counsels
have been utilizing the rebels, secessionists and communists for their own
personal or political purposes and how many of them are being used in
turn by the aforesaid enemies of the State for their own purposes?
If the petitioners are sincere in their expression of concern for the greater
mass of the populace, more than for their own selves, they should be
willing to give the incumbent Chief Executive a chance to implement the
desired reforms. The incumbent President assured the nation that he will
govern within the framework of the Constitution and if at any time, before
normalcy is restored, the people thru their Citizens' Assemblies, cease to
believe in his leadership, he will step down voluntarily from the Presidency.
But if, as apprehended by the petitioners, he abuses and brutalizes the
people, then to the battlements we must go to man the ramparts against
tyranny. This, it is believed, he knows only too well; because he is aware
that he who rides the tiger will eventually end inside the tiger's stomach.
He who toys with revolution will be swallowed by that same revolution.
History is replete with examples of libertarians who turned tyrants and
were burned at stake or beheaded or hanged or guillotined by the very
people whom they at first championed and later deceived. The most
bloody of such mass executions by the wrath of a wronged people, was the
decapitation by guillotine of about 15,000 Frenchmen including the leaders
of the French revolution, like Robespierre, Danton, Desmoulins and Marat.
He is fully cognizant of the lessons of history.
HENCE, THE DISMISSAL OF THESE FIVE CASES IS JUSTIFIED.
ESGUERRA, J., concurring:
These petitions seek to stop and prohibit the respondents Executive
Officers from implementing the Constitution signed on November 30,
1972; in L-36165, to compel respondents Gil Puyat and Jose J. Roy,
President and President Pro-Tempore, respectively, of the Senate under
the 1935 Constitution, to convene the Senate in regular session which
should have started on January 22, 1973; to nullify Proclamation No. 1102

of the President, issued on January 17, 1973, which declared the
ratification of the Constitution on November 30, 1972, by the Filipino
people, through the barangays or Citizens Assemblies established under
Presidential Decree No. 86 issued on December 31, 1972, which were
empowered under Presidential Decree No. 86-A, issued on January 5, 1973,
to act in connection with the ratification of said Constitution.
Grounds for the petitions are as follows:
1. That the Constitutional Convention was not a free forum for the making
of a Constitution after the declaration of Martial Law on September 21,
1972.
2. The Convention was not empowered to incorporate certain provisions in
the 1972 Constitution because they are highly unwise and objectionable
and the people were not sufficiently informed about them.
3. The President had no authority to create and empower the Citizens'
Assemblies to ratify the new Constitution at the referendum conducted in
connection therewith, as said assemblies were merely for consultative
purposes, and
4. The provisions of Article XV of the 1935 Constitution prescribing the
manner of amending the same were not duly observed.
The petitions were not given due course immediately but were referred to
the Solicitor General as counsel for the respondents for comment, with
three members of the Court, including the undersigned, voting to dismiss
them outright. The comments were considered motions to dismiss which
were set for hearing and extensively argued. Thereafter both parties
submitted their notes and memoranda on their oral arguments.
I.
The issues raised for determination, on which the resolution of the Motion
to Dismiss hinges, are as follows:
1. Is the question presented political and, hence, beyond the competence
of this Court to decide, or is it justiciable and fit for judicial determination?
2. Was the new Constitution of November 30, 1972, ratified in accordance
with the amending process prescribed by Article XV of the 1935
Constitution?
3. Has the new Constitution been accepted and acquiesced in by the
Filipino people?
4. Is the new Constitution actually in force and effect?
5. If the answers to questions Nos. 3 and 4 be in the affirmative, are
petitioners entitled to the reliefs prayed for?
II.
The pivotal question in these cases is whether the issue raised is highly
political and, therefore, not justiciable. I maintain that this Court should
abstain from assuming jurisdiction, but, instead, as an act of judicial
statesmanship, should dismiss the petitions. In resolving whether or not
the question presented is political, joint discussion of issues Nos. 1, 3 and 4
is necessary so as to arrive at a logical conclusion. For after the acceptance
of a new Constitution and acquiescence therein by the people by putting it
into practical operation, any question regarding its validity should be
foreclosed and all debates on whether it was duly or lawfully ushered into
existence as the organic law of the state become political and not judicial in
character.
The undisputed facts that led to the issuance of Proclamation No. 1102 and
Presidential Decrees Nos. 86 and 86-A are fully set forth in the majority and
dissenting opinions in the Plebiscite cases decided on January 22, 1973,
and need not be repeated here.
Petitioners seek to set at naught Proclamation No. 1102 and Presidential
Decrees Nos. 86 and 86-A, claiming that the ratification of the new
Constitution pursuant to the said decrees is invalid and of no effect.
Presidential Decree No. 86 organized the barangays or Citizens Assemblies
composed of all citizens at least fifteen years of age, and through these
assemblies the proposed 1972 Constitution was submitted to the people
for ratification. Proclamation No. 1102 of the President announced or
declared the result of the referendum or plebiscite conducted through the
Citizens Assemblies, and that 14,976,561 members thereof voted for the
ratification of the new Constitution and 743,869 voted against it.
Petitioners assail these two acts of the President as unauthorized and
devoid of legal effect.
But looking through the veneer of judicial conformity with which the
petitions have been adroitly contrived, what is sought to be invalidated is
the new Constitution itself — the very framework of the present
Government since January 17, 1973. The reason is obvious. The
Presidential decrees set up the means for the ratification and acceptance
of the new Constitution and Proclamation No. 1102 simply announced the
result of the referendum or plebiscite by the people through the Citizens
Assemblies. The Government under the new Constitution has been running
on its tracks normally and apparently without obstruction in the form of
organized resistance capable of jeopardizing its existence and disrupting its
Page 131 of 158
operation. Ultimately the issue is whether the new Constitution may be set
aside by this Court. But has it the power and authority to assume such a
stupendous task when the result of such invalidation would be to subject
this nation to divisive controversies that may totally destroy the social
order which the Government under the new Constitution has been
admirably protecting and promoting under Martial Law? That the new
Constitution has taken deep root and the people are happy and contended
with it is a living reality which the most articulate critics of the new order
cannot deny. 95 out of 108 members of the House of Representatives have
opted to serve in the interim National Assembly provided for under the
new Constitution. 15 out of 24 Senators have done likewise. The members
of the Congress did not meet anymore last January 22, 1973, not because
they were really prevented from so doing but because of no serious effort
on their parts to assert their offices under the 1935 Constitution. In brief,
the Legislative Department under the 1935 Constitution is a thing of the
past. The Executive Department has been fully reorganized; the
appointments of key executive officers including those of the Armed Forces
were extended and they took an oath to support and defend the new
Constitution. The courts, except the Supreme Court by reason of these
cases, have administered justice under the new constitution. All
government offices have dealt with the public and performed their
functions according to the new Constitution and laws promulgated
thereunder.
If the real purpose of the petitions is to set aside the new Constitution,
how can this Court justify its assumption of jurisdiction when no power has
... conferred upon it the jurisdiction to declare the Constitution or any part
thereof null and void? It is the height of absurdity and impudence for a
court to wage open war against the organic act to which it owes its
existence. The situation in which this Court finds itself does not permit it to
pass upon the question whether or not the new Constitution has entered
into force and has superseded the 1935 Constitution. If it declares that the
present Constitution has not been validly ratified, it has to uphold the 1935
Constitution as still the prevailing organic law. The result would be too
anomalous to describe, for then this Court would have to declare that it is
governed by one Constitution or the 1935 Constitution, and the legislative
and executive branches by another or the 1972 Constitution.
If it declares that the 1972 Constitution is now operative, how can it
exercise judicial discretion in these cases when it would have no other
choice but to uphold the new Constitution as against any other one? In the
circumstances it would be bereft of judicial attributes as the matter would
then be not meet for judicial determination, but one addressed to the
sovereign power of the people who have already spoken and delivered
their mandate by accepting the fundamental law on which the government
of this Republic is now functioning. To deny that the new Constitution has
been accepted and actually is in operation would be flying in the face of
reason and pounding one's bare head against a veritable stone wall or a

heavily reinforced concrete, or simply "kicking the deadly pricks" with one's
bare foot in an effort to eliminate the lethal points.
When a Constitution has been in operation for sometime, even without
popular ratification at that, submission of the people thereto by the
organization of the government provided therein and observance of its
prescriptions by public officers chosen thereunder, is indicative of
approval. Courts should be slow in nullifying a Constitution claimed to have
been adopted not in accordance with constitutional or statutory directives
[Miller vs. Johnson, 92 Ky. 589; 189 S.W. 522; Taylor vs Commonwealth,
101; Va. 829; 44 S.E. 754; Smith vs. Good, 34 F 204, 207; Wiston vs. Ryan,
70 Neb. 211; 97 N.W. 347].
In Miller vs. Johnson, supra, the Court said:
... But it is a case where a new constitution has been
formed and promulgated according to the forms of law.
Great interests have already arisen under it; important
rights exist by virtue of it; persons have been convicted
of the highest crimes known to the law, according to its
provisions; the political power of the government has
in many ways recognized it; and, under such
circumstances, it is our duty to treat and regard it as a
valid constitution, and now the organic law of our state.
We need not consider the validity of the amendments
made after the convention reassembled. If the making
of them was in excess of its power, yet as the entire
instrument has been recognized as valid in the manner
suggested, it would be equally an abuse of power by the
judiciary, and violative of the rights of the people, —
who can and properly should remedy the matter, if not
to their liking, — if it were to declare the instrument or
a portion invalid, and bring confusion and anarchy upon
the state. (Emphasis supplied)
In Smith vs. Good, supra, the Court said:
It is said that a state court is forbidden from entering
upon such an inquiry when applied to a new
constitution, and not an amendment, because the
judicial power presupposes an established government,
and if the authority of that government is annulled and
overthrown, the power of its courts is annulled with it;
therefore, if a state court should enter upon such an
inquiry, come to the conclusion that the government
under which it acted had been displaced by an
opposing government, it would cease to be a court, and
it would be incapable of pronouncing a judicial decision
upon the question before it; but, if it decides at all, it
must necessarily affirm the existence of the
government under which it exercises its judicial
powers. (Emphasis supplied)
These rules are all traceable to Luther vs. Borden, 48 U.S (7 How.), 12 L. Ed.
581, 598 (1849) where it was held:
Judicial power presupposes an established government
capable of enacting laws and enforcing their execution,
and appointing judges to expound and administer
them. The acceptance of the judicial office is a
recognition of the authority of government from which
it is derived. And if the authority of the government is
annulled and overthrown, the power of its courts and
other officers is annulled with it. And if a State court
should enter upon the inquiry proposed in this case,
and should come to conclusion that the government
under which it acted had been put aside and displaced
by an opposing government it would cease to be a
court, and be incapable of pronouncing a judicial
decision upon the question it undertook to try. If it
decides at all as a court, it necessarily affirms the
existence and authority of the government under which
it is exercising judicial power.
The foreign relations of the Republic of the Philippines have been normally
conducted on the basis of the new Constitution and no state with which we
maintain diplomatic relations has withdrawn its recognition of our
government. (For particulars about executive acts done under the new
Constitution, see pages 22-25 of the Comments of the Solicitor General,
dated February 3, 1973.)
Certainly the invalidation of Proclamation No. 1102 and Presidential
Decrees Nos. 86 and 86-A by this Court would smack of plain political
meddling which is described by the United States Supreme Court as
"entering a political thicket" in Colegrove vs. Green, 328 U.S. p. 549. At this
juncture it would be the part of wisdom for this Court to adopt the proper
attitude towards political upheavals and realize that the question before Us
is political and not fit for judicial determination. For a political question is
one entrusted to the people for judgment in their sovereign capacity
(Tañada vs. Cuenco, G.R. No. L-10520, Feb. 28,1967; 100 Phil. 1101), or to a
co-equal and coordinate branch of the Government (Vera vs. Arellano, 77
Phil. 192; Mabanag vs. Lopez Vito, 78 Phil. 1; Alejandrino vs. Quezon, 46
Phil. 35; Cabili vs. Francisco, G.R. No. 4638, May 8, 1931). A case involves a
political question when there would be "the impossibility of undertaking
independent resolutions without expressing a lack of respect due to
coordinate branches of government", or when there is "the potentiality of
Page 132 of 158
embarrassment from multifarious pronouncements by various
departments on one question."
To preserve the prestige and eminence that this Court has long enjoyed as
the "ultimate organ of the "Supreme Law of the Land" in that vast range of
legal problems often strongly entangled in popular feeling on which this
Court must pronounce", let us harken to the following admonition of
Justice Frankfurter in his dissent in Baker vs. Carr, 369 U.S. 186; 82 S. Ct.
691; 7 L. Ed. 2d. 663:
The Court's authority — possessed neither of the purse
nor the sword — ultimately rests on sustained public
confidence in its moral sanction. Such feeling must be
nourished by the Court's complete detachment, in fact
and appearance, from political entanglements and
abstention from injecting itself into the clash of political
forces in political settlement. ..." (Emphasis supplied)
The people have accepted and submitted to a Constitution to replace the
1935 Constitution. The new organic law is now in the plenitude of its
efficacy and vigor. We are now living under its aegis and protection and
only the cynics will deny this. This Court should not in the least attempt to
act as a super-legislature or a super-board of canvassers and sow confusion
and discord among our people by pontificating there was no valid
ratification of the new Constitution. The sober realization of its proper role
and delicate function and its consciousness of the limitations on its
competence, especially situations like this, are more in keeping with the
preservation of our democratic tradition than the blatant declamations of
those who wish the Court to engage in their brand of activism and would
not mind plunging it into the whirlpool of passion and emotion in an effort
to capture the intoxicating applause of the multitude.
For all the foregoing, I vote to dismiss all petitions.
ZALDIVAR, J., concurring and dissenting:
In these five cases, the main issue to be resolved by Court is whether or not
the Constitution proposed by the Constitutional Convention of 1971 had
been ratified in accordance with the provisions of Article XV of the 1935
Constitution. In the plebiscite cases, which were decided by this Court on
January 22, 19731, I held the view that this issue could be properly resolved
by this Court, and that it was in the public interest that this Court should
declare then whether or not the proposed Constitution had been validly
ratified. The majority of this Court, however, was of the view that the issue
was not squarely raised in those cases, and so the Court, as a body, did
make any categorical pronouncement on the question of whether or not
the Constitution proposed by the 1971 Convention was validly ratified. I
 Page 133 of 158

was the only one who expressed the opinion that the proposed My study on the subject of whether a question before the court is political Congress of the Philippines Resolution No. 2 calling a
Constitution was not validly ratified and therefore "it should not be given or judicial, based on decisions of the courts in the United States — where, convention to propose amendments to the
force and effect." after all, our constitutional system has been patterned to a large extent — Constitution of the Philippines. Sec. 7 of said Resolution
made me arrive at the considered view that it is in the power of this Court, No. 2 reads as follows:
The Court is now called upon to declare, and to inform the people of this as the ultimate interpreter of the Constitution, to determine the validity of
country, whether or not that proposed Constitution had been validly the proposal, the submission, and the ratification of any change in the "Section 7. The amendments
ratified and had come into effect. Constitution. Ratification or non-ratification of a constitutional amendment proposed by the Convention shall
is a vital element in the procedure to amend the constitution, and I believe be valid and considered part of the
that the Court can inquire into, and decide on, the question of whether or Constitution when approved by a
The Solicitor General, however, contends that this Court has no jurisdiction
not an amendment to the constitution, as in the present cases, has been majority of the votes cast in an
to resolve the issue that we have mentioned because that issue is a
ratified in accordance with the requirements prescribed in the Constitution election at which they are
political question that cannot be decided by this Court. This contention by
that was amended. And so, in the cases now before Us, I believe that the submitted to the people for their
the Solicitor General is untenable. A political question relates to "those
question of whether or not the Constitution proposed by the 1971 ratification pursuant to Article XV of
questions which under the Constitution are to be decided by the people in
Constitutional Convention had been validly ratified or not is a justiciable the Constitution.
their sovereign capacity or in regard to which full discretionary authority
question.
has been delegated to the legislative, or to the executive, branch of the
government.2 The courts have the power to determine whether the acts of It follows that from the very resolution of the Congress
the executive are authorized by the Constitution and the laws whenever The Chief Justice, in his opinion, has discussed lengthily the subject on of the Philippines which called for the 1971
they are brought before the court in a judicial proceeding. The judicial whether or not, the cases, before Us involve a political, or a judicial, Constitutional Convention, there was a clear mandate
department of the government exercises a sort of controlling, or rather question. I fully concur with his conclusion that the question involved in that the amendments proposed by the 1971
restraining, power over the two other departments of the government. these cases is justiciable. Convention, in order to be valid and considered part of
Each of the three departments, within its proper constitutional sphere, acts the Constitution, must be approved by majority of the
independently of the other, and restraint is only placed on one department On the question now of whether or not the Constitution proposed by the votes cast in an election at which they are submitted to
when that sphere is actually transcended. While a court may not restrain 1971 Constitutional Convention has been validly ratified, I am reproducing the people for the ratification as provided in the
the executive from committing an unlawful act, it may, when the legality of herein pertinent portions of my dissenting opinion in the plebiscite cases: Constitution.
such an act is brought before it in a judicial proceeding, declare it to be
void, the same as it may declare a law enacted by the legislature to be The ratification of the Constitution proposed by the This Court, in the case of Tolentino vs. Commission
unconstitutional.3 It is a settled doctrine that every officer under a 1971 Constitutional Convention must be done in Elections, L-35140, October 16, 1971 (41 SCRA 715),
constitutional government must act according to law and subject to its accordance with the provisions of Section 1, Article XV speaking through Mr. Justice Barredo, said:
restrictions, and every departure therefrom, or disregard thereof, must of the 1935 Constitution of the Philippines, which
subject him to the restraining and controlling power of the people, acting reads: "The Constitutional Convention of
through the agency of the judiciary. It must be remembered that the
1971, as any other convention of
people act through the courts, as well as through the executive or the
"Section 1. The Congress in joint the same nature, owes its existence
legislature. One department is just as representative as the other, and
session assembled by a vote of and all its authority and power from
judiciary is the department which is charged with the special duty of
three fourths of all the Members of the existing Constitution of the
determining the limitations which the law places upon all official actions4 .
the Senate and of the House of Philippines. This Convention has not
In the case of Gonzales v. Commission on Elections5, this Court ruled that
Representatives voting separately, been called by the people directly
the issue as to whether or not a resolution of Congress acting as a
may propose amendments to the as in the case of a revolutionary
constituent assembly violates the Constitution is not a political question
Constitution or call a convention for convention which drafts the first
and is therefore subject to judicial review. In the case of Avelino v. Cuenco6,
that purpose. Such amendments Constitution of an entirely new
this Court held that the exception to the rule that courts will not interfere
shall be valid as part of this government born of either a war of
with a political question affecting another department is when such
Constitution when approved by a liberation from a mother country or
political question involves an issue as to the construction and
majority of the votes cast at an of revolution against an existing
interpretation of the provision of the constitution. And so, it has been held
election at which the amendments government or of a bloodless
that the question of whether a constitution shall be amended or not is a
are submitted to the people for seizure of power a la coup d'etat.
political question which is not in the power of the court to decide, but
their ratification." As to such kind of conventions, it is
whether or not the constitution has been legally amended is a justiciable
absolutely true that the convention
question.7
It is in consonance with the abovequoted provision of is completely without restraint and
the 1935 Constitution that on March 16, 1967, the omnipotent all wise, and it as to

such conventions that the remarks
of Delegate Manuel Roxas of the
Constitutional Convention of 1934
quoted by Senator Pelaez refer. No
amount of rationalization can belie
the fact that the current convention
came into being only because it was
called by a resolution of a joint
session of Congress acting as a
constituent assembly by authority
of Section 1, Article XV of the
present Constitution ... ."
xxx xxx xxx
"As to matters not related to its
internal operation and the
performance of its assigned mission
to propose amendments to the
Constitution, the Convention and its
officers and members are all
subject to all the provisions of the
existing Constitution. Now we hold
that even as to its latter task of
proposing amendments to the
Constitution, it is subject to the
provisions of Section 1 of Article
XV."
In Proclamation No. 1102, issued on January 17, 1973,
the President of the Philippines certified that as a result
of the voting before the barangays (Citizens
Assemblies) 14,976,561 members of the barangays
voted for the adoption of the proposed Constitution, as
against 743,869 who voted for its rejection, and on the
basis of the overwhelming majority of the votes cast by
the members of all the barangays throughout the
Philippines, the President proclaimed that the
Constitution proposed by the 1971 Convention has
been ratified and has thereby come into effect.
It is very plain from the very wordings of Proclamation
No. 1102 that the provisions of Section 1 of Article XV
of the Constitution of 1935 were not complied with. It
is not necessary that evidence be produced before this
Court to show that no elections were held in
accordance with the provisions of the Election Code.
Proclamation No. 1102 unequivocally states that the
proposed Constitution of 1972 was voted upon by the
barangays. It is very clear, therefore, that the voting
held in these barangays is not the election
contemplated in the provisions of Section 1, Article XV,
of the 1935 Constitution. The election contemplated in
said constitutional provision is an election held in
accordance with the provisions of the election law,
where only the qualified and registered voters of the
country would cast their votes, where official ballots
prepared for the purpose are used, where the voters
would prepare their ballots in secret inside the voting
booths in the polling places established in the different
election precincts throughout the country, where the
election is conducted by election inspectors duly
appointed in accordance with the election law, where
the votes are canvassed and reported in a manner
provided for in the election law. It was this kind of
election that was held on May 14, 1935, when the
Constitution of 1935 was ratified; on April 30, 1937,
when the amendment to the Constitution providing for
Women's Suffrage was ratified; on June 18, 1940, when
the 1940 Amendments to the Constitution were
ratified; on March 11, 1947 when the Parity
Amendment to the Constitution was ratified; and on
November 14, 1967 when the amendments to the
Constitution to increase the number of Members of the
House of Representatives and to allow the Members of
Congress to run in the elections for Delegates to the
Constitutional Convention of 1971 were rejected.
I cannot see any valid reason why the practice or
procedure in the past, in implementing the
constitutional provision requiring the holding, of an
election to ratify or reject an amendment to the
Constitution, has not been followed in the case of the
Constitution proposed by the 1971 Constitutional
Convention.
It is my view that the President of the Philippines
cannot by decree order the ratification of the proposed
1972 Constitution thru a voting in the barangays and
make said result the basis for proclaiming the
ratification of the proposed constitution. It is very clear,
to me, that Proclamation No. 1102 was issued in
complete disregard or in violation, of the provisions of
Section 1 of Article X of the 1935 Constitution.
Page 134 of 158
Proclamation No. 1102 mentions, furthermore, that on
the question as to whether or not the people would
still like a plebiscite to be called to ratify the new
Constitution, 14,298,814 members of the barangays
answered that there was no need for a plebiscite but
that the vote of the barangays should be considered a
vote in a plebiscite. It would thus appear that the
barangays assumed the power to determine whether a
plebiscite as ordained in the Constitution be held or
not. Indeed, the provision of Section 1, Article XV of the
Constitution was completely disregarded.
The affirmative votes cast in the barangays are not the
votes contemplated in Section 1 of Article XV of the
1935 Constitution. The votes contemplated in said
constitutional provision are votes obtained through the
election processes as provided by law.
"An election is the embodiment of
the popular will, the expression of
the sovereign power of the people.
In common parlance, an election is
the act of casting and receiving the
ballots, counting them, and making
the return." (Hontiveros vs. Altavas,
24 Phil. 632, 637).
"Election" implies a choice by an
electoral body at the time and
substantially in the manner and
with the safeguards provided by
law with respect to some question
or issue. (Leffel v. Brown, Com. P1.,
159 N.E. 2d 807, 808 cited in 29
C.J.S. 13 at footnote 6.5).
"... the statutory method
whereby qualified voters or electors
pass on various public matters
submitted to them — the election
of officers, national, state, county,
township — the passing on various
other questions submitted for their
determination." (29 C.J.S. 13, citing
Iowa-Illinois Gas & Elec. Co. v. City
of Bettendorf, 41 N.W. 2d 1, 5, 241
Iowa 358).

"Election" is expression of choice
by voters of body politic. (Ginsburg
v. Giles, 72 S.W. 2d 438, 254 Ky.
720, in Words and Phrases,
Permanent Edition, p. 234).
"The right to vote may be exercised
only on compliance with such
statutory requirements as have
been set by the legislature."
(People ex rel. Rago v. Lipsky, 63
N.E. 2d 642, 327 III. App. 63;
Rothfels v. Southworth, 356 P. 2d
612, 11 Utah 2d 169 in 29 C.J.S. 38).
(Emphasis supplied).
In this connection I herein quote the pertinent
provisions of the Election Code of 1971:
"Sec. 2. Applicability of this Act. — All elections of
public officers except barrio officials and plebiscites
shall be conducted in the manner provided by this
Code."
"Sec 99. Necessity of registration to be entitled to vote.
— In order that a qualified voter may vote in any
regular or special election or in any plebiscite, he must
be registered in the permanent list of voters for the
city, municipality or municipal district in which he
resides: Provided, that no person shall register more
than once without first applying for cancellation of his
previous registration." (Emphasis supplied). (Please see
also Sections 100-102, Election Code of 1971, R.A. No.
6388)
It is stated in Proclamation No. 1102 that the voting
was done by the members of citizens assemblies who
are 15 years of age or over. Under the provision of
Section I of Article V of the 1935 Constitution, the age
requirement to be a qualified voter is 21 years or over.
But what is more noteworthy is the fact that the voting
in the barangays, except in very few instances, was
done by the raising of hands by the persons
indiscriminately gathered to participate in the voting,
where even children below 15 years of age were
included. This is a matter of common observation, or of
common knowledge, which the Court may take judicial
notice of. To consider the votes in the barangays as
expressive of the popular will and use them as the basis
in declaring whether a Constitution is ratified or
rejected is to resort to a voting by demonstrations,
which is would mean the rule of the crowd, which is
only one degree higher than the rule by the mob.
Certainly, so important a question as to whether the
Constitution, which is the supreme law of the land,
should be ratified or not, must not be decided by
simply gathering people and asking them to raise their
hands in answer to the question of whether the vote
for or against a proposed Constitution. The election as
provided by law should be strictly observed in
determining the will of the sovereign people in a
democracy. In our Republic, the will of the people must
be expressed through the ballot in a manner that is
provided by law.
It is said that in a democracy, the will of the people is
the supreme law. Indeed, the people are sovereign, but
the will of the people must be expressed in a manner as
the law and the demands a well-ordered society
require. The rule of law must prevail even over the
apparent will of the majority of the people, if that will
had not been expressed, or obtained, in accordance
with the law. Under the rule of law, public questions
must be decided in accordance with the Constitution
and the law. This is specially true in the case of
adoption of a constitution or in the ratification of an
amendment to the Constitution.
The following citations are, to me, very relevant in the
effort to determine whether the proposed Constitution
of 1972 had been validly ratified, or not:
"When it is said that "the people"
have the right to alter or amend the
constitution, it must not be
understood that term necessarily
includes all the inhabitants of the
state. Since the question of the
adoption or rejection of a proposed
new constitution or constitutional
amendment must be answered a
vote, the determination of it rests
with those who, by existing
constitution, are accorded the right
Page 135 of 158
of suffrage. But the qualified
electors must be understood in this,
as in many other cases, as
representing those who have not
the right to participate in the ballot.
If a constitution should be
abrogated and a new one adopted,
by the whole mass of people in a
state acting through
representatives not chosen by the
"people" in political sense of the
term, but by the general body of
the populace, the movement would
be extra-legal." (BIack's
Constitutional Law, Second Edition,
pp. 47-48).
"The theory of our political system
is that the ultimate sovereignty is in
the people, from whom springs all
legitimate authority. The people of
the Union created a national
constitution, and conferred upon it
powers of sovereignty on certain
subjects, and the people of each
State created a State government,
to exercise the remaining powers of
sovereignty so far as they were
disposed to allow them to be
exercised at all. By the constitution
which they establish, they not only
tie up the hands of their official
agencies, but their own hands as
well; and neither the officers of the
State, nor the whole people as an
aggregate body, are at liberty to
take action in opposition to this
fundamental law." (Cooley's
Constitutional Limitations, 8th
Edition, Vol. I, p. 81 cited in Graham
v. Jones, 3 So. 2d. 761, 782).
"The theory that a favorable vote
by the electorate, however
unanimous, on a proposal to amend
a constitution, may cure, render
innocuous, all or any antecedent
failures to observe commands of

that Constitution in respect of the
formulation or submission of
proposed amendments thereto,
does not prevail in Alabama, where
the doctrine of the stated theory
was denied, in obvious effect, by
the pronouncement 60 years ago of
broad, wholesome constitutional
principles in Collier v.
Frierson, supra, as quoted in the
original opinion, ante. The people
themselves are bound by the
Constitution; and, being so bound,
are powerless, whatever their
numbers, to change or thwart its
mandates, except through the
peaceful means of a constitutional
convention, or of an amendment
according to the mode therein
prescribed, or through the exertion
of the original right of revolution.
"The Constitution may be set aside
by revolution, but it can only be
amended in the way it provides,"
said Hobson, C.J., in McCreary v.
Speer, 156 Ky. 783, 791, 162 S.W.
99, 103. (Johnson vs. Craft, et al., 87
So. 375, 385, 387, On Rehearing).
"The fact that a majority voted for
the amendment, unless the vote
was taken as provided by the
Constitution, is not sufficient to
make a change in that instrument.
Whether a proposed amendment
has been legally adopted is a
judicial question, for the court must
uphold and enforce the
Constitution as written until it is
amended in the way which it
provides for." Wood v. Tooker, 15
Mont. 8, 37 Pac 840, 25 L.R.A.
560; McConaughty v. State, 106
Minn. 409, 119 N.W. 408; Oakland
Paving Company v. Hilton, 69 Cal.
499, 11 Pac. 3; Utter v. Mosely, 16
Idaho 274, 100 Pac. 1958, 133 Am.
St. Rep. 94, 18 Ann. Cas. 723.
(McCreary v. Speer, 162 S.W. 99,
104).
"Provisions of a constitution
regulating its own amendment, ...
are not merely directory, but are
mandatory; and a strict observance
of every substantial mandatory; and
a strict observance of every
substantial requirement is essential
to the validity of the proposed
amendment. These provisions are
as binding on the people as on the
legislature, and the former are
powerless by vote of acceptance to
give legal sanction to an
amendment the submission of
which was made in disregard of the
limitations contained in the
constitution." (16 C.J.S. 35-36. cited
in Graham v. Jones, 3 So. 2d 761,
782).
"It is said that chaos and confusion
in the government affairs of the
State will result from the Court's
action in declaring the proposed
constitutional amendment void.
This statement is grossly and
manifestly inaccurate. If confusion
and chaos should ensue, it will not
be due to the action of the Court
but will be the result of the failure
of the drafters joint resolution to
observe, follow and obey the plain
essential provisions of the
Constitution. Furthermore, to say
that, the Court disregards its sworn
duty to enforce the Constitution,
chaos and confusion will result, is
an inherently weak argument in
favor of the alleged
constitutionality of the proposed
amendment. It is obvious that, if
the Court were to countenance the
violations of the sacramental
provisions Constitution, those who
would thereafter desire to violate it
Page 136 of 158
disregard its clear mandatory
provisions would resort to the
scheme of involving and confusing
the affairs of the State then simply
tell the Court that it was powerless
to exercise one of its primary
functions by rendering the proper
decree to make the Constitution
effective." (Graham v. Jones, 3 So.
2d. 761, 793-794).
In our jurisprudence I find an instance where this Court
did not allow the will of the majority to prevail, because
the requirements of the law were not complied with. In
the case of Monsale v. Nico, 83 Phil. 758, Monsale and
Nico were both candidates for the office of Municipal
Mayor of Miagao, Iloilo, in the elections of November
11, 1947. Monsale had duly filed his certificate of
candidacy before the expiration of the period for the
filing of the same. However, on October 10, 1947, after
the period for the filing of the certificate of candidacy,
Monsale withdrew his certificate of candidacy. But on
November 7, 1947 Monsale attempted to revive his
certificate of candidacy by withdrawing the withdrawal
of certificate of candidacy. The Commission on
Elections, November 8, 1947, ruled that Monsale could
no longer be a candidate. Monsale nevertheless
proceeded with his candidacy. The boards of inspectors
in Miagao, however, did not count the votes cast for
Monsale upon the ground that the votes cast for him
were stray votes, because he was considered as having
no certificate of candidacy. On the other hand, the
boards of inspectors credited Nico with 2,291 votes,
and Nico was proclaimed elected. Monsale filed a
protest against the election of Nico in the Court of First
Instance of Iloilo. In the count of the ballots during the
proceedings in the trial court, it appeared that Monsale
had obtained 2,877 votes while Nico obtained 2,276
votes, or a margin of 601 votes in favor of Monsale. The
Court of First Instance of Iloilo decided the election
protest in favor of Monsale. Upon appeal by Nico, this
Court reversed the decision of the lower court. This
Court declared that because Monsale withdrew his
certificate of candidacy, his attempt to revive it by
withdrawing his withdrawal of his certificate of
candidacy did not restore the effectiveness of his
certificate of candidacy, and this Court declared Nico
the winner in spite of the fact that Monsale had
obtained more votes than he.

We have cited this Monsale case to show that the will
of the majority of the voters would not be given effect,
as declared by this Court, if certain legal requirements
have not been complied with in order to render the
votes valid and effective to decide the result of an
election.
And so, in the cases now before this Court, the fact that
the voting in the citizens assemblies (barangays) is not
the election that is provided for in the 1935
Constitution for the ratification of the amendment to
the Constitution, the affirmative votes cast in those
assemblies can not be made the basis for declaring the
ratification of the proposed 1972 Constitution, in spite
of the fact that it was reported that 14,976,561
members of the citizens assemblies voted for the
adoption as against 743,869 for the rejection, because
the votes thus obtained were not in accordance with
the provisions of Section 1 of Article XV of the 1935
Constitution of the Philippines. The rule of law mast be
upheld.
My last observation: One of the valid grounds against
the holding of the plebiscite on January 15, 1973, as
provided in Presidential Decree No. 73, is that there is
no freedom on the part of the people to exercise their
right of choice because of the existence of martial law
in our country. The same ground holds true as regards
to the voting of the barangays on January 10 to 15,
1973. More so, because by General Order No. 20,
issued on January 7, 1973, the President of the
Philippines ordered "that the provisions of Section 3 of
Presidential Decree No. 73 in so far as they allow free
public discussion of the proposed constitution, as well
as my order of December 17, 1972 temporarily
suspending the effects of Proclamation No. 1081 for
the purpose of free and open debate on the proposed
constitution, be suspended in the meantime." It is,
therefore, my view that voting in the barangays on
January 10, 1973 was not free, and so this is one added
reason why the results of the voting in the barangays
should not be made the basis for proclamation of the
ratification of the proposed Constitution.
It is my view, therefore, that Proclamation No. 1102
repugnant to the 1935 Constitution, and so it is invalid,
and should not be given effect. The Constitution of
1972 proposed by the 1971 Constitutional Convention
should be considered as not yet ratified by the people
of this Republic, and so it should not be given force and
effect.
It is urged by the Solicitor General, however, that the voting in the citizens
assemblies was a substantial compliance with the provisions of Article XV
of the 1935 Constitution. The Solicitor General maintains that the primary
thrust of the provision of Article XV of the 1935 Constitution is that "to be
valid, amendments must gain the approval of the majority recognition of
the democratic postulate that sovereign resides in the people." It is not
disputed that in a democratic sovereignty resides in the people. But the
term "people" must be understood in its constitutional meaning, and they
are "those persons who are permitted by the Constitution to exercise the
elective franchise."8Thus, in Section 2 of Article VII of the 1935
Constitution, it is provided that "the President shall hold his office during a
term of four years and, together with the Vice-President chosen for the
same term, shall be elected by direct vote of the people..." Certainly under
that constitutional provision, the "people" who elect directly the President
and the Vice-President are no other than the persons who, under the
provisions of the same Constitution, are granted the right to vote. In like
manner the provision in Section 1 of Article II of the 1935 Constitution
which says "Sovereignty resides in the people and all government authority
emanates from them", the "people" who exercise the sovereign power are
no other than the persons who have the right to vote under the
Constitution. In the case of Garchitorena vs. Crescini9, this Court, speaking
through Mr. Justice Johnson, said, "In democracies, the people, combined,
represent the sovereign power of the State. Their sovereign authority is
expressed through the ballot, of the qualified voters, in duly appointed
elections held from time to time, by means of which they choose their
officials for definite fixed periods, and to whom they entrust, for the time
being, as their representatives, the exercise of the powers of government."
In the case of Moya v. Del Fierro, 10 this Court, speaking through Mr. Justice
Laurel, said, "As long as popular government is an end to be achieved and
safeguarded, suffrage, whatever may be the modality and form devised,
must continue to be the means by which the great reservoir of power must
be emptied into the receptacular agencies wrought by the people through
their Constitution in the interest of good government and the common
weal. Republicanism, in so far as it implies the adoption of a representative
type of government, necessarily points to the enfranchised citizen as a
particle of popular sovereignty and as the ultimate source of the
established authority." And in the case of Abanil v. Justice of the Peace of
Bacolod, 11 this Court said: "In the scheme of our present republican
government, the people are allowed to have a voice therein through the
instrumentality of suffrage to be availed of by those possessing certain
prescribed qualifications. The people, in clothing a citizen with the elective
franchise for the purpose of securing a consistent and perpetual
administration of the government they ordain, charge him with the
performance of a duty in the nature of a public trust, and in that
respect constitute him a representative of the whole people. This duty
Page 137 of 158
requires that the privilege thus bestowed exclusively for the benefit of the
citizen or class of citizens professing it, but in good faith and with an
intelligent zeal for the general benefit and welfare of the state. (U.S. v.
Cruikshauk, 92 U.S. 588)..." There is no question, therefore, that when we
talk of sovereign people, what is meant are the people who act through the
duly qualified and registered voters who vote during an election that is
held as provided in the Constitution or in the law.
The term "election" as used in Section 1 of Article XV of the 1935
Constitution should be construed along with the term "election" as used in
the Provisions of Section 4 of the Philippine Independence Act of the
Congress of the United States, popularly known as the Tydings-McDuffie
Law (Public Act No. 127). Said Section 4 of the Tydings-McDuffie Law
provides as follows:
Section 4. After the President of the United States
certified that the constitution conforms with the
provisions of this act, it shall be submitted to the
people of the Philippine Islands for their ratification or
rejection at an election to he held within months after
the date of such certification, on a date to be fixed by
the Philippine Legislature at which election, the
qualified voters of the Philippine Islands shall have an
opportunity to vote directly or against the proposed
constitution and ordinances append thereto. Such
election shall be held in such manner as may prescribed
by the Philippine Legislature to which the return of the
election shall be made. The Philippine Legislature shall
certify the result to the Governor-General of the
Philippine Islands, together with a statement of the
votes cast, and a copy of said constitution ordinances. If
a majority of the votes cast shall be for the
constitution, such vote shall be deemed an expression
of the will of the people of the Philippine
Independence, and the Governor-General shall, within
thirty days after receipt of the certification from the
Philippine Legislature, issue a proclamation for
the election of officers of the government of the
Commonwealth of the Philippine Islands provided for in
the Constitution...
It can safely be said, therefore, that when the framers of the 1935
Constitution used, the word "election" in Section I Article XV of the 1935
Constitution they had no other idea in mind except the elections that were
periodically held in the Philippines for the choice of public officials prior to
the drafting of the 1935 Constitution, and also the "election" mentioned in
the Independence Act at which "the qualified voters of the Philippine
Islands shall have an opportunity to vote directly for or against the

proposed constitution..." It is but logical to expect that the framers of the
1935 Constitution would provide a mode of ratifying an amendment to
that Constitution similar to the mode of ratifying the original Constitution
itself.
It is clear therefore, that the ratification or any amendment to the 1935
Constitution could only be done by holding an election, as the term
"election" was understood, and practiced, when the 1935 Constitution as
drafted. The alleged referendum in the citizens assemblies — participated
in by persons aged 15 years or more, regardless of whether they were
qualified voters or not, voting by raising their hands, and the results of the
voting reported by the barrio or ward captain, to the municipal mayor, who
in turn submitted the report to the provincial Governor, and the latter
forwarding the reports to the Department of Local Governments, all
without the intervention of the Commission on Elections which is the
constitutional body which has exclusive charge of the enforcement and
administration of all laws, relative to the conduct of elections — was not
only a non-substantial compliance with the provisions of Section 1 of
Article XV of the 1935 Constitution but a downright violation of said
constitutional provision. It would be indulging in sophistry to maintain that
the voting in the citizens assemblies amounted to a substantial compliance
with the requirements prescribed in Section 1 of Article XV of the 1935
Constitution.
It is further contended by the Solicitor General, that even if the
Constitution proposed by the 1971 Constitutional Convention was not
ratified in accordance with the provisions of Section 1 of Article XV of the
1935 Constitution, the fact is that after the President of the Philippines had
issued Proclamation No. 1102 declaring that the said proposed
Constitution "has been ratified by overwhelming majority of all the votes
cast by the members of all the barangays (citizens assemblies) throughout
the Philippines and had thereby come into effect" the people have
accepted the new Constitution. What appears to me, however, is that
practically it is only the officials and employees under the executive
department of the Government who have been performing their duties
apparently in observance of the provisions of the new Constitution. It could
not be otherwise, because the President of the Philippines, who is the head
of the executive department, had proclaimed that the new Constitution
had come into effect, and his office had taken the steps to implement the
provisions of the new Constitution. True it is, that some 92 members of the
House of Representatives and 15 members of the Senate, of the Congress
of the Philippines had expressed their option to serve in the interim
National Assembly that is provided for in Section 2 of Article XVII of the
proposed Constitution. It must be noted, however, that of the 15 senators
who expressed their option to serve in the interim National Assembly only
one them took his oath of office; and of the 92 members of the House of
Representatives who opted to serve in the interim National Assembly, only
22 took their oath of office. The fact that only one Senator out of 24, and
only 22 Representative out of 110, took their oath of office, is an indication
that only a small portion of the members of Congress had manifested the
acceptance of the new Constitution. It is in the taking of the oath of office
where the affiant says that he swears to "support and defend the
Constitution" that the acceptance of the Constitution is made manifest. I
agree with counsel petitioners in L-36165 (Gerardo Roxas, et al. v.
Alejandro Melchor, et al.) when he said that the members of Congress who
opted to serve in the interim National Assembly did only ex abundante
cautela, or by way of a precaution, making sure, that in the event the new
Constitution becomes definitely effective and the interim National
Assembly convened, they can participate in legislative work in the capacity
as duly elected representatives of the people, which otherwise they could
not do if they did not manifest their option to serve, and that option had to
be made within 30 day from January 17, 1973, the date when Proclamation
No. 110 was issued. Of course, if the proposed Constitution does not
become effective, they continue to be members of Congress under the
1935 Constitution. Let it be considered that the members of the House of
Representatives were elected in 1969 to serve a term which will yet expire
on December 31, 1973. Whereas, of the Senators who opted to serve in the
interim National Assembly, the term of some of them will yet expire on
December 31, 1973, some on December 31, 1975, and the rest on
December 31, 1977. Let if be noted that 9 Senators did not opt to serve in
the interim National Assembly, and 18 members of the House of
Representatives also did not opt to serve in the interim National Assembly.
Neither can it be said that the people have accepted the new Constitution.
I cannot, in conscience, accept the reported affirmative votes in the
citizens assemblies as a true and correct expression by the people of their
approval, or acceptance, of the proposed Constitution. I have my serious
doubts regarding the freedom of the people to express their views
regarding the proposed Constitution during the voting in the citizens
assemblies, and I have also my serious doubts regarding the truthfulness
and accuracy of the reports of the voting in the citizens assemblies. This
doubt has been engendered in my mind after a careful examination and
study of the records of these cases, particularly with respect to the reports
of the voting in the citizens assemblies. Perhaps, it may be said that the
people, or the inhabitants of this country, have acquiesced to the new
Constitution, in the sense that they have continued to live peacefully and
orderly under the government that has been existing since January 17,
1973 when it was proclaimed that the new Constitution came into effect.
But what could the people do? In the same way that the people have lived
under martial law since September 23, 1972, they also have to live under
the government as it now exists, and as it has existed since the declaration
of martial law on September 21, 1972, regardless of what Constitution is
operative — whether it is the 1935 Constitution or the new Constitution.
Indeed, there is nothing that the people can do under the circumstances
actually prevailing in our country today — circumstances, known to all, and
which I do not consider necessary to state in this opinion. I cannot agree,
therefore, with my worthy colleagues in the Court who hold the view that
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the people have accepted the new Constitution, and that because the
people have accepted it, the new Constitution should be considered as in
force, regardless of the fact that it was not ratified in accordance with the
provisions of Section 1 of Article XV of the 1935 Constitution.
It is my honest view that the Constitution proposed by the 1971
Constitutional Convention has not come into effect. I do not say, however,
that the proposed Constitution is invalid. To me, the validity of the
proposed Constitution is not in issue in the cases before Us. What the
petitioners assail is not the validity of the proposed Constitution but the
validity of Presidential Proclamation No. 1102 which declares the proposed
Constitution as having been ratified and has come into effect. It being my
considered view that the ratification of the proposed Constitution, as
proclaimed in Proclamation No. 1102, is not in accordance with the
provisions of Section 1 of Article XV, of the 1935 Constitution, I hold that
Proclamation No. 1102 is invalid and should not be given force and effect.
Their proposed Constitution, therefore, should be considered as not yet
validly ratified, and so it is not in force. The proposed Constitution may still
be submitted to a plebiscite in conformity with Section 1 of Article XV of
the 1935 Constitution. Incidentally, I must state that the Constitution is still
in force, and this Court is still functioning under the 1935 Constitution.
I sincerely believe that the proposed Constitution may still be submitted to
the people in an election or plebiscite held in accordance with the
provisions of Section 1 of Article XV of the 1935 Constitution. In fact, as we
have adverted to in this opinion, this was the mandate of Congress when,
on March 16, 1967, it passed Resolution No. 2 calling a convention to
propose amendments to the 1935 Constitution. The Court may take judicial
notice of the fact that the President of the Philippines has reassured the
nation that the government of our Republic since the declaration of martial
law is not a revolutionary government, and that he has been acting all the
way in consonance with his powers under the Constitution. The people of
this Republic has reason to be happy because, according to the President,
we still have a constitutional government. It being my view that the 1935
Constitution is still in force, I believe Congress may still convene and pass a
law calling for an election at which the Constitution proposed by the 1971
Constitutional Convention will be submitted to the people their ratification
or rejection. A plebiscite called pursuant to Section 1 of Article XV of the
1935 Constitution is an assurance to our people that we still have in our
country the Rule of Law and that the democratic system of government
that has been implanted in our country by the Americans, and which has
become part of our social and political fabric, is still a reality.
The views that I have expressed in this opinion are inspired by a desire on
my part to bring about stability in democratic and constitutional system in
our country. I feel that if this Court would give its imprimatur to the
ratification of the proposed Constitution, as announced in Proclamation
No. 1102, it being very clear that the provisions of Section 1 of Article XV of

the 1935 Constitution had not been complied with, We will be opening the
gates for a similar disregard of the Constitution in the future. What I mean
is that if this Court now declares that a new Constitution is now in force
because the members of the citizens assemblies had approved the said
new Constitution, although that approval was not in accordance with the
procedure and the requirements prescribed in the 1935 Constitution, it can
happen again in some future time that some amendments to the
Constitution may be adopted, even in a manner contrary to the existing
Constitution and the law, and then said proposed amendment is submitted
to the people in any manner and what will matter is that a basis is claimed
that there was approval by the people. There will not be stability in our
constitutional system, and necessarily no stability in our government. As a
member of this Court I only wish to contribute my humble efforts to
prevent the happening of such a situation in the future.
It appearing to me that the announced ratification of the proposed
Constitution through the voting in the citizens assemblies is a clear
violation of the 1935 Constitution, what I say in this opinion is simply an
endeavor on my part to be true to my oath of office to defend and support
the 1935 Constitution. I am inspired by what the great jurist and
statesman, Jose P. Laurel, said:
Let our judges be as it were the vestal keepers of the
purity and sanctity of our Constitution, and the
protection and vindication of popular rights will be safe
and secure in their reverential guardianship.
I only wish to help prevent, if I can, democracy and the liberties of our
people from vanishing in our land, because, as Justice George Sutherland of
the U. S. Supreme Court said:
(t)he saddest epitaph which can be carved in memory
of a vanished liberty is that it was lost because its
possessors failed to stretch forth a saving hand while
yet there was time.
I concur fully with the personal views expressed by the Chief Justice in the
opinion that he has written in these cases. Along with him, I vote to deny
the motion to dismiss and give due course to the petitions in these cases.
FERNANDO, J., dissenting:
No question more momentous, none impressed with such transcendental
significance is likely to confront this Court in the near or distant future as
that posed by these petitions. For while the specific substantive issue is the
validity of Presidential Proclamation No. 1102, an adverse judgment may
be fraught with consequences that, to say the least, are far-reaching in its
implications. As stressed by respondents, "what petitioners really seek to
invalidate is the new Constitution."1 Strict accuracy would of course qualify
such statement that what is in dispute, as noted in the opinion of the Chief
Justice, goes only as far as the validity of its ratification. It could very well
be though that the ultimate outcome is not confined within such limit, and
this is not to deny that under its aegis, there have been marked gains in the
social and economic sphere, but given the premise of continuity in a
regime under a fundamental law, which itself explicitly recognizes the need
for change and the process for bringing it about,2 it seems to me that the
more appropriate course is this Court to give heed to the plea of
petitioners that the most serious attention be paid to their submission that
the challenged executive act fails to meet the test of constitutionality.
Under the circumstances, with regret and with due respect for the opinion
of my brethren, I must perforce dissent. It would follow therefore that the
legal position taken by the Chief Justice as set forth with his usual lucidity
and thoroughness has, on the whole, my concurrence, subject, of course,
to reservations insofar as it contains views and nuances to which I have in
the past expressed doubts. Nonetheless, I feel that a brief expression of the
reasons for the stand I take would not be amiss.
In coping with its responsibility arising from the function of judicial review,
this Court is not expected to be an oracle given to utterances of eternal
verities, but certainly it is more than just a keen but passive observer of the
contemporary scene. It is, by virtue of its role under the separation of
powers concept, involved not necessarily as a participant in the formation
of government policy, but as an arbiter of its legality. Even then, there is
realism in what Lerner did say about the American Supreme Court as "the
focal point of a set of dynamic forces which [could play] havoc with the
landmarks of the American state and determine the power configuration of
the day."3 That is why there is this caveat. In the United States as here, the
exercise of the power of judicial review is conditioned on the necessity that
the decision of a case or controversy before it so requires. To repeat, the
Justices of the highest tribunal are not, as Justice Frankfurter made clear,
"architects of policy. They can nullify the policy of others, they are
incapable of fashioning their own solutions for social
problems."4 Nonetheless, as was stressed by Professors Black5and
Murphy,6 a Supreme Court by the conclusion it reaches and the decision it
renders does not merely check the coordinate branches, but also by its
approval stamps with legitimacy the action taken. Thus in affirming
constitutional supremacy, the political departments could seek the aid of
the judiciary. For the assent it gives to what has been done conduces to its
support in a regime where the rule of law holds sway. In discharging such a
role, this Court must necessarily take in account not only what the exigent
needs of the present demand but what may lie ahead in the unexplored
and unknown vistas of the future. It must guard against the pitfall of lack of
understanding of the dominant forces at work to seek a better life for all,
especially those suffering from the pangs of poverty and disease, by a blind
determination to adhere to the status quo. It would be tragic, and a clear
case of its being recreant to its trust, if the suspicion can with reason be
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entertained that its approach amounts merely to a militant vigilantism that
is violently opposed to any form of social change. It follows then that it
does not suffice that recourse be had only to what passes for scholarship in
the law that could be marred by inapplicable erudition and narrow
legalism. Even with due recognition, such factors, however, I cannot, for
reasons to be set more lengthily and in the light of the opinion of the Chief
Justice, reach the same result as the majority of my brethren. For, in the
last analysis, it is my firm conviction that the institution of judicial review
speaks too clearly for the point to be missed that official action, even with
due allowance made for the good faith that invariably inspires the step
taken, has to face the gauntlet of a court suit whenever there is a proper
case with the appropriate parties.
1. Respondents are acting in the soundest constitutional tradition when, at
the outset, they would seek a dismissal of these petitions. For them, the
question raised is political and thus beyond the jurisdiction of this Court.
Such an approach cannot be indicted for unorthodoxy. It is implicit in the
concept of the rule of law that rights belong to the people and the
government possesses powers only. Essentially then, unless such an
authority may either be predicated on express or implied grant in the
Constitution or the statutes, an exercise thereof cannot survive an inquiry
as to its validity. Respondents through Solicitor-General Mendoza would
deny our competence to proceed further. It is their view, vigorously
pressed and plausibly asserted, that since what is involved is not merely
the effectivity of an amendment but the actual coming into effect of a new
constitution, the matter is not justiciable. The immediate reaction is that
such a contention is to be tested in the light of the fundamental doctrine of
separation of powers that it is not only the function but the solemn duty of
the judiciary to determine what the law is and to apply it in cases and
controversies that call for decision.7 Since the Constitution pre-eminently
occupies the highest rung in the hierarchy of legal norms, it is in the
judiciary, ultimately this Tribunal, that such a responsibility is vested. With
the 1935 Constitution containing, as above noted, an explicit article on the
subject of amendments, it would follow that the presumption to be
indulged in is that the question of whether there has been deference to its
terms is for this Court to pass upon. What is more, the
Gonzales,8 Tolentino9 and Planas 10 cases speak unequivocally to that
effect. Nor is it a valid objection to this conclusion that what was involved
in those cases was the legality of the submission and not ratification, for
from the very language of the controlling article, the two vital steps are
proposal and ratification, which as pointed out in Dillon v. Gloss, 11 "cannot
be treated as unrelated acts, but as succeeding steps in a single
endeavor." 12 Once an aspect thereof is viewed as judicial, there would be
no justification for considering the rest as devoid of that character. It would
be for me then an indefensible retreat, deriving no justification from
circumstances of weight and gravity, if this Court were to accede to what is
sought by respondents and rule that the question before us is political.

On this point, it may not be inappropriate to refer to a separate opinion of
mine in Lansang v. Garcia. 13 Thus: "The term has been made applicable to
controversies clearly non-judicial and therefore beyond its jurisdiction or to
an issue involved in a case appropriately subject to its cognizance, as to
which there has been a prior legislative or executive determination to
which deference must be paid. It has likewise been employed loosely to
characterize a suit where the party proceeded against is the President or
Congress, or any branch thereof. If to be delimited with accuracy, "political
questions" should refer to such as would under the Constitution be
decided by the people in their sovereign capacity or in regard to full
discretionary authority is vested either in the President or Congress. It is
thus beyond the competence of the judiciary to pass upon. Unless clearly
falling within the formulation, the decision reached by the political
branches whether in the form of a congressional act or an executive order
could be tested in court. Where private rights are affected, the judiciary
has no choice but to look into its validity. It is not to be lost sight of that
such a power comes into play if there be an appropriate proceeding that
may be filed only after each coordinate branch has acted. Even when the
Presidency or Congress possesses plenary powers, its improvident exercise
or the abuse thereof, if shown, may give rise to a justiciable controversy.
For the constitutional grant of authority is usually unrestricted. There are
limits to what may be done and how it is to be accomplished. Necessarily
then, the courts in the proper exercise of judicial review could inquire into
the question of whether or not either of the two coordinate branches has
adhered to what is laid down by the Constitution. The question thus posed
is judicial rather than political." 14 The view entertained by Professor Dodd
is not too dissimilar. For him such a term "is employed to designate certain
types of functions committed to the political organs of government (the
legislative and executive departments, or either of them) and not subject
to judicial investigation." 15 After a thorough study of American judicial
decisions, both federal and state, he could conclude: "The field of judicial
nonenforceability is important, but is not large when contrasted with the
whole body of written constitutional texts. The exceptions from judicial
enforceability fall primarily within the field of public or governmental
interests." 16 Nor was Professor Weston's formulation any different. As was
expressed by him: "Judicial questions, in what may be thought the more
useful sense, are those which the sovereign has set to be decided in the
courts. Political questions, similarly, are those which the sovereign has
entrusted to the so-called political departments of government or has
reserved to be settled by its own extra-governmental action." 17 What
appears undeniable then both from the standpoint of Philippine as well as
American decisions is the care and circumspection required before the
conclusion is warranted that the matter at issue is beyond judicial
cognizance, a political question being raised.
2. The submission of respondents on this subject of political question,
admittedly one of complexity and importance, deserves to be pursued
further. They would derive much aid and comfort from the writings of both
Professor Bickel 18 of Yale and Professor Freund 19 of Harvard, both of
whom in turn are unabashed admirers of Justice Brandeis. Whatever be the
merit inherent in their lack of enthusiasm for a more active and positive
role that must be played by the United States Supreme Court in
constitutional litigation, it must be judged in the light of our own history. It
cannot be denied that from the well nigh four decades of constitutionalism
in the Philippines, even discounting an almost similar period of time dating
from the inception of American sovereignty, there has sprung a tradition of
what has been aptly termed as judicial activism. Such an approach could be
traced to the valedictory address before the 1935 Constitutional
Convention of Claro M. Recto. He spoke of the trust reposed in the
judiciary in these words: "It is one of the paradoxes of democracy that the
people at times place more confidence in instrumentalities of the State
other than those directly chosen by them for the exercise of their
sovereignty." 20 It would thus appear that even then this Court was
expected not to assume an attitude of timidity and hesitancy when a
constitutional question is posed. There was the assumption of course that
it would face up to such a task, without regard to political considerations
and with no thought except that of discharging its trust. Witness these
words Justice Laurel in an early landmark case, People v. Vera, 21 decided in
1937: "If it is ever necessary for us to make vehement affirmance during
this formative period of political history, it is that we are independent of
the Executive no less than of the Legislative department of our government
— independent in the performance of our functions, undeterred by any
consideration, free from politics, indifferent to popularity, and unafraid of
criticism in the accomplishment of our sworn duty as we see it and as we
understand it." 22 The hope of course was that such assertion of
independence impartiality was not mere rhetoric. That is a matter more
appropriately left to others to determine. It suffices to stake that what
elicits approval on the part of our people of a judiciary ever alert to inquire
into alleged breaches of the fundamental law is the realization that to do
so is merely to do what is expected of it and that thereby there is no
invasion of spheres appropriately belonging to the political branches. For it
needs to be kept in kind always that it can act only when there is a suit with
proper parties before it, wherein rights appropriate for judicial
enforcement are sought to be vindicated. Then, too, it does not approach
constitutional questions with dogmatism or apodictic certainty nor view
them from the shining cliffs of perfection. This is not to say though that it is
satisfied with an empiricism untroubled by the search for jural consistency
and rational coherence. A balance has to be struck. So juridical realism
requires. Once allowance made that for all its care and circumspection this
Court manned by human beings fettered by fallibility, nonetheless
earnestly and sincerely striving to do right, the public acceptance of its
vigorous pursuit of the task of assuring that the Constitution be obeyed is
easy to understand. It has not in the past shirked its responsibility to
ascertain whether there has been compliance with and fidelity to
constitutional requirements. Such is the teaching of a host of cases
from Angara v. Electoral
Commission 23 to Planas v. Commission on Elections. 24 It should continue to
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exercise its jurisdiction, even in the face of a plausible but not sufficiently
persuasive insistence that the matter before it is political.
Nor am I persuaded that the reading of the current drift in American legal
scholarship by the Solicitor-General and his equally able associates
presents the whole picture. On the question of judicial review, it is not a
case of black and white; there are shaded areas. It goes too far, in my view,
if the perspective is one of dissatisfaction, with its overtones of distrust.
This expression of disapproval has not escaped Dean Rostow of Yale, who
began one of his most celebrated legal essays. The Democratic Character of
Judicial Review, thus: "A theme of uneasiness, and even of guilt, colors the
literature about judicial review. Many of those who have talked, lectured,
and written about the Constitution have been troubled by a sense that
judicial review is undemocratic." 25 He went on to state: "Judicial review,
they have urged, is an undemocratic shoot on an otherwise respectable
tree. It should be cut off, or at least kept pruned and
inconspicuous." 26 His view was precisely the opposite. Thus: "The power of
constitutional review, to be exercised by some part of the government, is
implicit in the conception of a written constitution delegating limited
powers. A written constitution would promote discord rather than order in
society if there were no accepted authority to construe it, at the least in
case of conflicting action by different branches of government or of
constitutionally unauthorized governmental action against individuals. The
limitation and separation of powers, if they are to survive, require a
procedure for independent mediation and construction to reconcile the
inevitable disputes over the boundaries of constitutional power which arise
in the process of government." 27 More than that, he took pains to
emphasize: "Whether another method of enforcing the Constitution could
have been devised, the short answer is that no such method developed.
The argument over the constitutionality of judicial review has long since
been settled by history. The power and duty of the Supreme Court to
declare statutes or executive action unconstitutional in appropriate cases is
part of the living Constitution. 'The course of constitutional history,' Mr.
Justice Frankfurter recently remarked, 'has cast responsibilities upon the
Supreme Court which it would be "stultification" for it to evade.' " 28 Nor is
it only Dean Rostow who could point Frankfurter, reputed to belong to the
same school of thought opposed to judicial activism, if not its leading
advocate during his long stay in the United States Supreme Court, as one
fully cognizant of the stigma that attaches to a tribunal which neglects to
meet the demands of judicial review. There is a statement of similar
importance from Professor Mason: "In Stein v. New
York Frankfurter remarked, somewhat self-consciously perhaps, that the
'duty of deference cannot be allowed imperceptibly to slide into
abdication.' " 29 Professor Konefsky, like Dean Rostow, could not accept
characterization of judicial review as undemocratic. Thus his study of
Holmes and Brandeis, the following appears: "When it is said that judicial
review is an undemocratic feature of our political system, it ought also to
be remembered that architects of that system did not equate
constitutional government with unbridled majority rule. Out of their

concern for political stability and security for private rights, ..., they
designed a structure whose keystone was to consist of barriers to the
untrammeled exercise of power by any group. They perceived no
contradiction between effective government and constitutional checks. To
James Madison, who may legitimately be regarded as the philosopher of
the Constitution, the scheme of mutual restraints was the best answer to
what he viewed as the chief problem in erecting a system of free
representative government: 'In framing a government which is to be
administered by men over men, the great difficulty lies in this: you must
first enable the government to control the governed; and in the next place
oblige it to control itself.' " 30
There is thus an inevitability to the flowering of judicial review. Could it be
that the tone of discontent apparent in the writings of eminent authorities
on the subject evince at the most fears that the American Supreme Court
might overstep the bounds allotted to the judiciary? It cannot be a denial
of the fitness of such competence being vested in judges and of their being
called upon to fulfill such a trust whenever appropriate to the decision of a
case before them. That is why it has been correctly maintained that
notwithstanding the absence of any explicit provision in the fundamental
law of the United States Constitution, that distinguished American
constitutional historian, Professor Corwin, could rightfully state that
judicial review "is simply incidental to the power of courts to interpret the
law, of which the Constitution is part, in connection with the decision of
cases." 31 This is not to deny that there are those who would place the
blame or the credit, depending upon one's predilection, on Marshall's
epochal opinion in Marbury v. Madison. 32 Curtis belonged to that
persuasion. As he put it: "The problem was given no answer by the
Constitution. A hole was left where the Court might drive in the peg of
judicial supremacy, if it could. And that is what John Marshall did." 33 At any
rate there was something in the soil of American juristic thought resulting
in this tree of judicial power so precariously planted by Marshall striking
deep roots and showing wonderful vitality and hardiness. It now dominates
the American legal scene. Through it, Chief Justice Hughes, before
occupying that exalted position, could state in a lecture: "We are under a
Constitution, but the Constitution is what the judges say it is ... ." 34 The
above statement is more than just an aphorism that lends itself to inclusion
in judicial anthologies or bar association speeches. It could and did provoke
from Justice Jackson, an exponent of the judicial restraint school of
thought, this meaningful query: "The Constitution nowhere provides that it
shall be what the judges say it is. How, did it come about that the
statement not only could be but could become current as the most
understandable comprehensive summary of American Constitutional
law?" 35 It is no wonder that Professor Haines could pithily and succinctly
sum up the place of the highest American tribunal in the scheme of things
in this wise: "The Supreme Court of the United States has come to be
regarded as the unique feature of the American governmental
system." 36Let me not be misunderstood. There is here no attempt to close
one's eyes to a discernible tendency on the part of some distinguished
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faculty minds to look askance at what for them may be inadvisable prerogatives of others. It should not be allowed to grow as a merely
extension of judicial authority. For such indeed is the case as reflected in intellectual plant." 47
two leading cases of recent vintage, Baker v. Carr, 37 decided in 1962
and Powell v. MacCormack, 38 in 1969, both noted in the opinion of the It is difficult for me at least, not to be swayed by appraisal, coming from
Chief Justice. The former disregarded the warning of Justice Frankfurter in such impeccable sources of the worth and significance of judicial review in
Colegrove v. Green 39 about the American Supreme Court declining the United States. I cannot resist the conclusion then that the views
jurisdiction on the question of apportionment as to do so would cut very advanced on this subject by distinguished counsel for petitioners, with
deep into the very being of Congress." 40 For him, the judiciary "ought not Senators Lorenzo M. Tañada and Jovito Salonga at the van, rather than the
to enter this political thicket." Baker has since then been followed; it has advocacy of the Solicitor-General, possess the greater weight and carry
spawned a host of cases. 41 Powell, on the question of the power of a persuasion. So much then for the invocation of the political question
legislative body to exclude from its ranks a person whose qualifications are principle as a bar to the exercise of our jurisdiction.
uncontested, for many the very staple of what is essentially political,
certainly goes even further than the authoritative Philippine decision
3. That brings me to the issue of the validity of the ratification. The crucial
of Vera v. Avelino, 42 It does look then that even in the United States, the
point that had to be met is whether Proclamation No. 1102 manifests
plea for judicial self-restraint, even if given voice by those competent in the
fidelity to the explicit terms of Article XV. There is, of course, the view not
field of constitutional law, has fallen on deaf ears. There is in the
offensive to reason that a sense of the realities should temper the rigidity
comments of respondents an excerpt from Professor Freund quoting from
of devotion to the strict letter of the text to allow deference to its spirit to
one of his essays appearing in a volume published in 1968. It is not without
control. With due recognition of its force in constitutional litigation, 48 if my
interest to note that in another paper, also included therein, he was less
reading of the events and the process that led to such proclamation, so
than assertive about the necessity for self-restraint and apparently mindful
clearly set forth in the opinion of the Chief Justice, is not inaccurate, then it
of the claims of judicial activism. Thus: "First of all, the Court has a
cannot be confidently asserted that there was such compliance. It would
responsibility to maintain the constitutional order, the distribution of
be to rely on conjectural assumptions that did founder on the rock of the
public power, and the limitations on that power." 43 As for Professor Bickel,
undisputed facts. Any other conclusion would, for me, require an
it has been said that as counsel for the New York Times in the famous
interpretation that borders on the strained. So it has to be if one does not
Vietnam papers case, 44 he was less than insistent on the American
lose sight of how the article on amendments is phrased. A word, to
Supreme Court exercising judicial self-restraint. There are signs that the
paraphrase Justice Holmes may not be a crystal, transparent and
contending forces on such question, for some an unequal contest, are now
unchanged, but it is not, to borrow from Learned Hand, that eminent jurist,
quiescent. The fervor that characterized the expression of their respective
a rubber band either. It would be unwarranted in my view then to assert
points of view appears to have been minimized. Not that it is to be
that the requirements of the 1935 Constitution have been met. There are
expected that it will entirely disappear, considering how dearly cherished
American decisions, 49and they are not few in number, which require that
are, for each group, the convictions, prejudices one might even say,
there be obedience to the literal terms of the applicable provision. It is
entertained. At least what once was fitly characterized as the booming
understandable why it should be thus. If the Constitution is the supreme
guns of rhetoric, coming from both directions, have been muted. Of late,
law, then its mandate must be fulfilled. No evasion is tolerated. Submission
scholarly disputations have been centered on the standards that should
to its commands can be shown only if each and every word is given
govern the exercise of the power of judicial review. In his celebrated
meaning rather than ignored or disregarded. This is not to deny that a
Holmes lecture in 1959 at the Harvard Law School, Professor Wechsler
recognition conclusive effect attached to the electorate manifesting its will
advocated as basis for decision what he termed neutral principles of
to vote affirmatively on the amendments proposed poses an obstacle to
constitutional law. 45 It has brought forth a plethora of law review articles,
the judiciary being insistent on the utmost regularity. Briefly stated,
the reaction ranging from guarded conformity to caustic criticism. 46 There
substantial compliance is enough. A great many American State decisions
was, to be sure, no clear call to a court in effect abandoning the
may be cited in support of such a doctrine. 50
responsibility incumbent on it to keep governmental agencies within
constitutional channels. The matter has been put in temperate terms by
Professor Frank thus: "When allowance has been made for all factors, it Even if the assumption be indulged in that Article XV is not phrased in
nevertheless seems to me that the doctrine of political questions ought to terms too clear to be misread, so that this Court is called upon to give
be very sharply confined to where the functional reasons justify it and that meaning and perspective to what could be considered words of vague
in a give involving its expansion there should be careful consideration also generality, pregnant with uncertainty, still whatever obscurity it possesses
of the social considerations which may militate against it. The doctrine has is illumined when the light of the previous legislation is thrown on it. In the
a certain specious charm because of its nice intellectualism and because of first Commonwealth Act, 51 submitting to the Filipino people for approval
the fine deference it permits to expertise, to secret knowledge, and to the or disapproval certain amendments to the original ordinance appended to

the 1935 Constitution, it was made that the election for such purpose was
to "be conducted in conformity with the provisions of the Election Code
insofar as the same may be applicable." 52 Then came the statute, 53 calling
for the plebiscite on the three 1940 amendments providing for the
plebiscite on the three 1930 amendments providing for a bicameral
Congress or a Senate and a House of Representatives to take the place of a
unicameral National Assembly, 54 reducing the term of the President to
four years but allowing his re-election with the limitation that he cannot
serve more than eight consecutive years, 55 and creating an independent
Commission on Elections. 56 Again, it was expressly provided that the
election "shall be conducted in conformity with the provisions of the
Election Code in so far as the same may be applicable." 57 The approval of
the present parity amendment was by virtue of a Republic Act 58 which
specifically made applicable the then Election Code. 59 There is a similar
provision in the
legislation, 60 which in cotemplation of the 1971 Constitutional Convention,
saw to it that there be an increase in the membership of the House of
Representatives a maximum of one hundred eighty and assured the
eligibility of senators and representatives to become members of such
constituent body without forfeiting their seats, as proposed amendments
to be voted on in the 1967 elections. 61 That is the consistent course of
interpretation followed by the legislative branch. It is most persuasive, if
not controlling. The restraints thus imposed would set limits to the
Presidential action taken, even on the assumption that either as an agent
of the Constitutional Convention or under his martial law prerogatives, he
was not devoid of power to specify the mode of ratification. On two vital
points, who can vote and how they register their will, Article XV had been
given a definitive construction. That is why I fail to see sufficient
justification for this Court affixing the imprimatur of its approval on the
mode employed for the ratification of the revised Constitution as reflected
in Proclamation No. 1102.
4. Nor is the matter before us solely to be determined by the failure to
comply with the requirements of Article XV. Independently of the lack of
validity of the ratification of the new Constitution, if it be accepted by the
people, in whom sovereignty resides according to the Constitution, 62 then
this Court cannot refuse to yield assent to such a political decision of the
utmost gravity, conclusive in its effect. Such a fundamental principle is
meaningless if it does not imply, to follow Laski, that the nation as a whole
constitutes the "single center of ultimate reference," necessarily the
possessor of that "power that is able to resolve disputes by saying the last
word." 63 If the origins of the democratic polity enshrined in the 1935
Constitution with the declaration that the Philippines is a republican state
could be traced back to Athens and to Rome, it is no doubt true, as McIver
pointed out, that only with the recognition of the nation as the separate
political unit in public law is there the juridical recognition of the people
composing it "as the source of political authority." 64 From them, as Corwin
did stress, emanate "the highest possible embodiment of human
will," 65 which is supreme and must be obeyed. To avoid any confusion and
in the interest of clarity, it should be expressed in the manner ordained by
law. Even if such is not the case, however, once it is manifested, it is to be
accepted as final and authoritative. The government which is merely an
agency to register its commands has no choice but to submit. Its officials
must act accordingly. No agency is exempt such a duty, not even this Court.
In that sense, the lack of regularity in the method employed to register its
wishes is fatal in its consequences. Once the fact of acceptance by people
of a new fundamental law is made evident, the judiciary is left with no
choice but to accord it recognition. The obligation to render it obeisance
falls on the courts as well.
There are American State decisions that enunciate such a doctrine. While
certainly not controlling, they are not entirely bereft of persuasive
significance. In Miller v. Johnson, 66 decided in 1892, it was set forth in the
opinion of Chief Justice Holt that on May 3, 1890, an act was passed in
Kentucky, providing for the calling of a convention for the purpose of
framing a new constitution and the election of delegates. It provided that
before any form of constitution made by them should become operative, it
should be submitted to the vote of the state and ratified by a majority of
those voting. The constitution then in force authorized the legislature, the
preliminary steps having been taken, to call a convention "for the purpose
of readopting, amending, or changing" it contained no provision giving the
legislature the power to require a submission of its work to a vote of the
people. The convention met in September, 1890. By April, 1891, it
completed a draft of a constitution, submitted it to a popular vote, and
then adjourned until September following. When the convention
reassembled, the delegates made numerous changes in instrument. As
thus amended, it was promulgated by the convention of September 28,
1891, as the new constitution. An action was brought to challenge its
validity. It failed in the lower court. In affirming such judgment dismissing
the action, Chief Justice Holt stated: "If a set of men, not selected by the
people according to the forms of law, were to formulate an instrument and
declare it the constitution, it would undoubtedly be the duty of the courts
to declare its work a nullity. This would be revolution, and this the courts of
the existing government must resist until they are overturned by power,
and a new government established. The convention, however, was the
offspring of law. The instrument which we are asked to declare invalid as a
constitution has been made and promulgated according to the forms of
law. It is a matter of current history that both the executive and legislative
branches of the government have recognized its validity as a constitution,
and are now daily doing so. ... While the judiciary should protect the rights
of the people with great care and jealousy, because this is its duty, and also
because; in times of great popular excitement, it is usually their last resort,
yet it should at the same time be careful not to overstep the proper
bounds of its power, as being perhaps equally dangerous; and especially
where such momentous results might follow as would be likely in this
instance, if the power of the judiciary permitted, and its duty requires, the
overthrow of the work of the convention." 67 In Taylor v.
Commonwealth, 68 a 1903 decision, it was contended that the Virginia
Page 142 of 158
Constitution reclaimed in 1902 is invalid as it was ordained and
promulgated by the convention without being submitted for ratification or
rejection by the people. The Court rejected such a view. As stated in the
opinion of Justice Harrison: "The Constitution of 1902 was ordained and
proclaimed by a convention duly called by direct vote of the people of the
state to revise and amend the Constitution of 1869. The result of the work
of the convention has been recognized, accepted, and acted upon as the
only valid Constitution of the state by the Governor in swearing fidelity to it
and proclaiming it, as directed thereby; by the Legislature in its formal
official act adopting a joint resolution, July 15, 1902, recognizing the
Constitution ordained by the convention which assembled in the city of
Richmond on the 12th day of June, 1901, as the Constitution of Virginia; by
the individual oaths of members to support it, and by enforcing its
provisions; and the people in their primary capacity by peacefully accepting
it and acquiescing in it, by registering as voters under it to the extent of
thousands throughout the state, and by voting, under its provisions, at a
general election for their representatives in the Congress of the United
States. The Constitution having been thus acknowledged and accepted by
the office administering the government and by the people of the state,
and there being no government in existence under the Constitution of
1869 opposing or denying its validity, we have no difficulty in holding that
the Constitution in question, which went into effect at noon on the 10th
day of July, 1902, is the only rightful, valid, and existing Constitution of this
state, and that to it all the citizens of Virginia owe their obedience and loyal
allegiance." 69
It cannot be plausibly asserted then that premises valid in law are lacking
for the claim that the revised Constitution has been accepted by the
Filipino people. What is more, so it has been argued, it is not merely a case
of its being implied. Through the Citizens Assemblies, there was a plebiscite
with the result as indicated in Proclamation No. 1102. From the standpoint
of respondents then, they could allege that there was more than just mere
acquiescence by the sovereign people. Its will was thus expressed formally
and unmistakably. It may be added that there was nothing inherently
objectionable in the informal method followed in ascertaining its
preference. Nor is the fact that Filipinos of both sexes above the age of
fifteen were given the opportunity to vote to be deplored. The greater the
base of mass participation, the more there is fealty to the democratic
concept. It does logically follow likewise that such circumstances being
conceded, then no justifiable question may be raised. This Court is to
respect what had thus received the people's sanction. That is not for me
though whole of it. Further scrutiny even then is not entirely foreclosed.
There is still an aspect that is judicial, an inquiry may be had as to whether
such indeed was the result. This is no more than what the courts do in
election cases. There are other factors to bear in mind. The fact that the
President so certified is well-nigh conclusive. There is in addition the
evidence flowing from the conditions of peace and stability. There thus
appears to be conformity to the existing order of things. The daily course of
events yields such a conclusion. What is more, the officials under the 1935

Constitution, including practically all Representatives and a majority of the
Senators, have signified their assent to it. The thought persists, however,
that as yet sufficient time has not elapsed to be really certain.
Nor is this all. There is for me an obstacle to the petitions being dismissed
for such ascertainment of popular will did take place during a period of
martial law. It would have been different had there been that freedom of
debate with the least interference, thus allowing a free market of ideas. If
it were thus, it could be truly said that there was no barrier to liberty of
choice. It would be a clear-cut decision either way. One could be certain as
to the fact of the acceptance of the new or of adherence to the old. This is
not to deny that votes are cast by individuals with their personal concerns
uppermost in mind, worried about their immediate needs and captive to
their existing moods. That is inherent in any human institution, much more
so in a democratic polity. Nor is it open to any valid objection because in
the final analysis the state exists for the individuals who in their collectivity
compose it. Whatever be their views, they are entitled to respect. It is
difficult for me, however, at this stage to feel secure in the conviction that
they did utilize the occasion afforded to give expression to what was really
in their hearts. This is not to imply that such doubt could not be dispelled
by evidence to the contrary. If the petitions be dismissed however, then
such opportunity is forever lost.
5. With the foregoing legal principles in mind, I find myself unable to join
the ranks of my esteemed brethren who vote for the dismissal of these
petitions. I cannot yield an affirmative response to the plea of respondents
to consider the matter closed, the proceedings terminated once and for all.
It is not an easy decision to reach. It has occasioned deep thought and
considerable soul-searching. For there are countervailing considerations
that exert a compulsion not easy to resist. It can be asserted with truth,
especially in the field of social and economic rights, that with the revised
Constitution, there is an auspicious beginning for further progress. Then
too it could resolve what appeared to be the deepening contradictions of
political life, reducing at times governmental authority to near impotence
and imparting a sense of disillusionment in democratic processes. It is not
too much to say therefore that there had indeed been the revision of a
fundamental law to vitalize the very values out of which democracy grows.
It is one which has all the earmarks of being responsive to the dominant
needs of the times. It represents an outlook cognizant of the tensions of a
turbulent era that is the present. That is why for some what was done
represented an act of courage and faith, coupled with the hope that the
solution arrived at is a harbinger of a bright and rosy future.
It is such a comfort then that even if my appraisal of the situation had
commanded a majority, there is not, while these lawsuits are being further
considered, the least interference, with the executive department. The
President in the discharge of all his functions is entitled to obedience. He
remains commander-in-chief with all the constitutional powers it implies.
Public officials can go about their accustomed tasks in accordance with the
revised Constitution. They can pursue even the tenor of their ways. They
are free to act according to its tenets. That was so these past few weeks,
even petitions were filed. There was not at any time any thought of any
restraining order. So it was before. That is how things are expected to
remain even if the motions to dismiss were not granted. It might be asked
though, suppose the petitions should prevail? What then? Even so, the
decision of this Court need not be executory right away. Such a disposition
of a case before this Court is not novel. That was how it was done in the
Emergency Powers Act controversy. 70 Once compliance is had with the
requirements of Article XV of the 1935 Constitution, to assure that the
coming force of the revised charter is free from any taint of infirmity, then
all doubts are set at rest.
For some, to so view the question before us is to be caught in a web of
unreality, to cherish illusions that cannot stand the test of actuality. What
is more, it may give the impression of reliance on what may, for the
practical man of affairs, be no more than gossamer distinctions and sterile
refinements unrelated to events. That may be so, but I find it impossible to
transcend what for me are the implications of traditional constitutionalism.
This is not to assert that an occupant of the bench is bound to apply with
undeviating rigidity doctrines which may have served their day. He could at
times even look upon them as mere scribblings in the sands to be washed
away by the advancing tides of the present. The introduction of novel
concepts may be carried only so far though. As Cardozo put the matter:
"The judge, even when he is free, is still not wholly free. He is not to
innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of
his own ideal of beauty or of goodness. He is to draw his inspiration from
consecrated principles. He is not to yield to spasmodic sentiment, to vague
and unregulated benevolence. He is to exercise a discretion informed by
tradition, methodized by analogy, disciplined by system, and subordinated
to "the primordial necessity of order in the social life." Wide enough in all
conscience is the field of discretion that remains." 71Moreover what made
it difficult for this Court to apply settled principles, which for me have not
lost their validity, is traceable to the fact that the revised Constitution was
made to take effect immediately upon ratification. If a period of time were
allowed to elapse precisely to enable the judicial power to be exercised, no
complication would have arisen. Likewise, had there been only one or two
amendments, no such problem would be before us. That is why I do not
see sufficient justification for the orthodoxies of constitutional law not to
operate.
Even with full realization then that the approach pursued is not all that it
ought to have been and the process of reasoning not without its
shortcomings, the basic premises of a constitutional democracy, as I
understand them and as set forth in the preceding pages, compel me to
vote the way I did.
Page 143 of 158
TEEHANKEE, J., dissenting:
The masterly opinion of the Chief Justice wherein he painstakingly deals
with the momentous issues of the cases at bar in all their complexity
commands my concurrence.
I would herein make an exposition of the fundamental reasons and
considerations for my stand.
The unprecedented and precedent-setting issue submitted by petitioners
for the Court's resolution is the validity and constitutionality of Presidential
Proclamation No. 1102 issued on January 17, 1973, certifying and
proclaiming that the Constitution proposed by the 1971 Constitutional
Convention "has been ratified by an overwhelming majority of all the votes
cast by the members of all the Barangays (Citizens Assemblies) throughout
the Philippines, and has thereby come into effect."
More specifically, the issue submitted is whether the purported ratification
of the proposed Constitution by means of the Citizens Assemblies has
substantially complied with the mandate of Article XV of the existing
Constitution of 1935 that duly proposed amendments thereto, in toto or
parts thereof, "shall be valid as part of this Constitution when approved by
a majority of the votes cast at an election at which the amendments
are submitted to the peoplefor their ratification."1
A necessary corollary issue is whether the purported ratification of the
proposed Constitution as signed on November 30, 1972 by the 1971
Constitutional Convention may be said also to have substantially complied
with its own mandate that "(T)his Constitution shall take immediately upon
its ratification by a majority of the votes cast in aplebiscite called for the
purpose and except as herein provided, shall supersede the Constitution of
Nineteen hundred and thirty-five and all amendments thereto."2
Respondents contend that "(A)lthough apparently what
is sought to be annulled is Proclamation No. 1102, what
petitioners really seek to invalidate is the new
Constitution", and their actions must be
dismissed, because:
— "the Court may not inquire into the validity of
the procedure for ratification" which is "political in
character" and that "what is sought to be invalidated
is not an act of the President but of the people;
— "(T)he fact of approval of the new Constitution by an
overwhelming majority of the votes cast as declared

and certified in Proclamation No. 1102 is conclusive on
the courts;
— "Proclamation No. 1102 was issued by the President
in the exercise of legislative power under martial law. ...
Alternatively, or contemporaneously, he did so as
"agent" of the Constitutional Convention;"
— "alleged defects, such as absence of secret voting,
enfranchisement of persons less than 21 years, non
supervision (by) the Comelec are matters not
required by Article XV of the 1935 Constitution"; (sic)
— "after ratification, whatever defects there might
have been in the procedure are overcome
and mooted (and muted) by the fact of ratification";
and
— "(A)ssuming finally that Article XV of the 1935
Constitution was not strictly followed, the ratification
of the new Constitution must nonetheless be
respected. For the procedure outlined in Article XV
was not intended to be exclusive of other procedures,
especially one which contemplates popular and direct
participation of the citizenry ... ."3
To test the validity of respondents' submittal that the Court, in annulling
Proclamation No. 1102 would really be "invalidating the new Constitution",
the terms and premises of the issues have to be defined.
— Respondents themselves assert that "Proclamation
No. 1102 ... is plainly merely declaratory of the fact that
the 1973 Constitution has been ratified and has come
into force.4
— The measure of the fact of ratification is Article XV of
the 1935 Constitution. This has been consistently held
by the Court in the Gonzales:5 and Tolentino6 cases.
— In the Tolentino case, this Court emphasized "that
the provisions of Section 1 of Article XV of the
Constitution, dealing with the procedure or manner of
amending the fundamental law are binding upon the
Convention and the other departments of the
government. It must be added that ... they are no
less binding upon the people."7
— In the same Tolentino case, this Court further
proclaimed that "as long as any amendment is
formulated and submitted under the aegis of the
present Charter, any proposal for such amendment
which is not in conformity with
the letter, spirit and intent of the Charter for effecting
amendments, cannot receive the sanction of this
Court."8
— As continues to be held by a majority of this Court,
proposed amendments to the Constitution "should be
ratified in only one way, that is, in an election or
plebiscite held in accordance with law and participated
in only by qualified and duly registered voters"9 and
under the supervision of the Commission on
Elections. 10
— Hence, if the Court declares Proclamation 1102 null
and void because on its face, the purported ratification
of the proposed Constitution has not faithfully nor
substantially observed nor complied with the
mandatory requirements of Article XV of the (1935)
Constitution, it would not be "invalidating" the
proposed new Constitution but would be simply
declaring that the announced fact of ratification
thereof by means of the Citizens Assemblies
referendums does not pass the constitutional test and
that the proposed new Constitution
has not constitutionally come into existence.
— Since Proclamation 1102 is acknowledged by
respondent to be "plainly merely declaratory" of the
disputed fact of ratification, they cannot assume the
very fact to be established and beg the issue by citing
the self-same declaration as proof of the purported
ratification therein declared.
What complicates the cases at bar is the fact that the proposed 1972
Constitution was enforced as having immediately taken effect upon the
issuance on January 17, 1973 of Proclamation 1102 and the question of
whether "confusion and disorder in government affairs would (not) result"
from a judicial declaration of nullity of the purported ratification is raised
by the Solicitor-General on behalf of respondents.
A comparable precedent of great crisis proportions is found in the
Emergency Powers cases, 11 wherein the Court in its Resolution of
September 16, 1949 after judgment was initially not obtained on August
26, 1949 for lack of the required six (6) votes, finally declared in effect that
Page 144 of 158
the pre-war emergency powers delegated by Congress to the President,
under Commonwealth Act 671 in pursuance of Article VI, section 26 of the
Constitution, had ceased and became inoperative at the latest in May,
1946 when Congress met in its first regular session on May 25, 1946.
Then Chief Justice Manuel V. Moran recited the great interests and
important rights that had arisen under executive orders "issued in good
faith and with the best of intentions by three successive Presidents, and
some of them may have already produced extensive effects on the life of
the nation" — in the same manner as may have arisen under the bona fide
acts of the President now in the honest belief that the 1972 Constitution
had been validly ratified by means of the Citizens Assemblies referendums
— and indicated the proper course and solution therefor, which were duly
abided by and confusion and disorder as well as harm to public interest and
innocent parties thereby avoided as follows:
Upon the other hand, while I believe that the
emergency powers had ceased in June 1945, I am not
prepared to hold that all executive orders issued
thereafter under Commonwealth Act No. 671, are per
se null and void. It must be borne in mind that these
executive orders had been issued in good faith and
with the best of intentions by three successive
Presidents, and some of them may have already
produced extensive effects in the life of the nation. We
have, for instance, Executive Order No. 73, issued on
November 12, 1945, appropriating the sum of
P6,750,000 for public works; Executive Order No. 86,
issued on January 7, 1946, amending a previous order
regarding the organization of the Supreme Court;
Executive Order No. 89, issued on January 1, 1946,
reorganizing Courts of First Instance; Executive Order
No. 184, issued on November 19, 1948, controlling rice
and palay to combat hunger; and other executive
orders appropriating funds for other purposes. The
consequences of a blanket nullification of all these
executive orders will be unquestionably serious and
harmful. And I hold that before nullifying them, other
important circumstances should be inquired into, as for
instance, whether or not they have been ratified by
Congress expressly or impliedly, whether their
purposes have already been accomplished entirely or
partially, and in the last instance, to what extent;
acquiescence of litigants; de facto officers; acts and
contracts of parties acting in good faith; etc. It is my
opinion that each executive order must be viewed in
the light of its peculiar circumstances, and, if necessary
and possible, nullifying it, precautionary measures

should be taken to avoid harm to public interest and
innocent parties. 12
Initially, then Chief Justice Moran voted with a majority of the Court to
grant the Araneta and Guerrero petitions holding null and void the
executive orders on rentals and export control but to defer judgment on
the Rodriguez and Barredo petitions for judicial declarations of nullity of
the executive orders appropriating the 1949-1950 fiscal year budget for the
government and P6 million for the holding of the 1949 national elections.
After rehearsing, he further voted to also declare null and void the last two
executive orders appropriating funds for the 1949 budget and elections,
completing the "sufficient majority" of six against four dissenting justices
"to pronounce a valid judgment on that matter." 13
Then Chief Justice Moran, who penned the Court's majority resolution,
explained his vote for annulment despite the great difficulties and possible
"harmful consequences" in the following passage, which bears re-reading:
However, now that the holding of a special session of
Congress for the purpose of remedying the nullity of
the executive orders in question appears remote and
uncertain, I am compelled to, and do hereby, give my
unqualified concurrence in the decision penned by Mr.
Justice Tuason declaring that these two executive
orders were issued without authority of law.
While in voting for a temporary deferment of the
judgment I was moved by the belief that positive
compliance with the Constitution by the other branches
of the Government, which is our prime concern in all
these cases, would be effected, and indefinite
deferment will produce the opposite result because it
would legitimize a prolonged or permanent evasion of
our organic law. Executive orders which are, in our
opinion, repugnant to the Constitution, would be given
permanent life, opening the way or practices which
may undermine our constitutional structure.
The harmful consequences which, as I envisioned in my
concurring opinion, would come to pass should the said
executive orders be immediately declared null and void
are still real. They have not disappeared by reason of
the fact that a special session of Congress is not now
forthcoming. However, the remedy now lies in the
hands of the Chief Executive and of Congress, for the
Constitution vests in the former the power to call a
special session should the need for one arise, and in the
latter, the power to pass a valid appropriations act.
That Congress may again fail to pass a valid
appropriations act is a remote possibility, for under the
circumstances it fully realizes its great responsibility of
saving the nation from breaking down; and
furthermore, the President in the exercise of his
constitutional powers may, if he so desires, compel
Congress to remain in special session till it approves the
legislative measures most needed by the country.
Democracy is on trial in the Philippines, and surely it
will emerge victorious as a permanent way of life in this
country, if each of the great branches of the
Government, within its own allocated sphere, complies
with its own constitutional duty, uncompromisingly and
regardless of difficulties.
Our Republic is still young, and the vital principles
underlying its organic structure should be maintained
firm and strong, hard as the best of steel, so as to
insure its growth and development along solid lines of a
stable and vigorous democracy. 14
The late Justice Pedro Tuason who penned the initial majority judgment
(declaring null and void the rental and export control executive orders)
likewise observed that "(T)he truth is that under our concept of
constitutional government, in times of extreme perils more than in normal
circumstances 'the various branches, executive, legislative, and judicial,'
given the ability to act, are called upon 'to perform the duties discharge the
responsibilities committed to respectively.' " 15
It should be duly acknowledged that the Court's task of discharging its duty
and responsibility has been considerably lightened by the President's public
manifestation of adherence to constitutional processes and of working
within the proper constitutional framework as per his press conference of
January 20,1973, wherein he stated that "(T)he Supreme Court is the final
arbiter of the Constitution. It can and will probably determine the validity
of this Constitution. I did not want to talk about this because actually there
is a case pending before the Supreme Court. But suffice it to say that I
recognize the power of the Supreme Court. With respect to appointments,
the matter falls under a general provision which authorizes the Prime
Minister to appoint additional members to the Supreme Court. Until the
matter of the new Constitution is decided, I have no intention of utilizing
that power." 16
Thus, it is that as in an analogous situation wherein the state Supreme
Court of Mississippi held that the questions of whether the submission of
the proposed constitutional amendment of the State Constitution
providing for an elective, instead of an appointive, judiciary and whether
Page 145 of 158
the proposition was in fact adopted, were justifiable and not political
questions, we may echo the words therein of Chief Justice Whitfield that
"(W)e do not seek a jurisdiction not imposed upon us by the Constitution.
We could not, if we would, escape the exercise of that jurisdiction which
the Constitution has imposed upon us. In the particular instance in which
we are now acting, our duty to know what the Constitution of the state is,
and in accordance with our oaths to support and maintain it in its integrity,
imposed on us a most difficult and embarrassing duty, one which we have
not sought, but one which, like all others, must be discharged." 17
In confronting the issues at bar, then, with due regard for my colleagues'
contrary views, we are faced with the hard choice of maintaining a firm and
strict — perhaps, even rigid — stand that the Constitution is a "superior
paramount law, unchangeable by ordinary means" save in the particular
mode and manner prescribed therein by the people, who, in Cooley's
words, so "tied up (not only) the hands of their official agencies, but their
own hands as well" 18 in the exercise of their sovereign will or a liberal and
flexible stand that would consider compliance with the constitutional
article on the amending process as merely directory rather than
mandatory.
The first choice of a strict stand, as applied to the cases at bar, signifies that
the Constitution may be amended in toto or otherwise exclusively "by
approval by a majority of the votes cast an election at which the
amendments are submitted to the people for their
ratification", 19 participated in only by qualified and
duly registered voters twenty-one years of age or over 20 and
21
duly supervised by the Commission on Elections, in accordance with the
cited mandatory constitutional requirements.
The alternative choice of a liberal stand would permit a disregard of said
requirements on the theory urged by respondents that "the procedure
outlined in Article XV was not intended to be exclusive of other procedures
especially one which contemplates popular and direct participation of the
citizenry", 22 that the constitutional age and literacy requirements and
other statutory safeguards for ascertaining the will of the majority of the
people may likewise be changed as "suggested, if not prescribed, by the
people (through the Citizens Assemblies) themselves", 23 and that the
Comelec is constitutionally "mandated to oversee ... elections (of public
officers) and not plebiscites." 24
To paraphrase U.S. Chief Justice John Marshall who first declared in the
historic 1803 case of Marbury vs. Madison25 the U.S. Supreme Court's
power of judicial review and to declare void laws repugnant to the
Constitution, there is no middle ground between these two alternatives. As
Marshall expounded it: "(T)he Constitution is either a superior paramount
law, unchangeable by ordinary means, or it is on a level with ordinary
legislative acts, and, like other acts, alterable when the legislature shall

please to alter it. If the former part of the alternative be true, then a
legislative act, contrary to the Constitution, is not law; if the latter part be
true, then written constitutions are absurd attempts on the part of a
people, to limit a power, in its own nature, illimitable."
As was to be restated by Justice Jose P. Laurel a century and a third later in
the 1936 landmark case of Angara vs. Electoral Commission, 26 "(T)he
Constitution sets forth in no uncertain language the restrictions and
limitations upon governmental powers and agencies. If these restrictions
and limitations are transcended it would be inconceivable if the
Constitution had not provided for a mechanism by which to direct the
course of government along constitutional channels, for then the
distribution of powers would be mere verbiage, the bill of rights mere
expressions of sentiment, and the principles of good government mere
political apothegms. Certainly, the limitations of good government and
restrictions embodied in our Constitution are real as they should be in any
living Constitution."
Justice Laurel pointed out that in contrast to the United States
Constitution, the Philippine Constitution as "a definition of the powers of
government" placed upon the judiciary the great burden of "determining
the nature, scope and extent of such powers" and stressed that "when the
judiciary mediates to allocate constitutional boundaries, it does not assert
any superiority over the other departments ... but only asserts the solemn
and sacred obligation entrusted to it by the Constitution to determine
conflicting claims of authority under the Constitution and to establish for
the parties in an actual controversy the rights which the instrument
secures and guarantees to them."
II
Marshall was to utter much later in the equally historic 1819 case
of McCulloch vs. Maryland 27 the "climactic phrase," 28 "we must never
forget that it is a constitution we are expounding," — termed by Justice
Frankfurter as "the single most important utterance in the literature of
constitutional law — most important because most comprehensive and
comprehending." 29 This enduring concept to my mind permeated to this
Court's exposition and rationale in the hallmark case of Tolentino, wherein
we rejected the contentions on the Convention's behalf "that the issue ... is
a political question and that the Convention being a legislative body of the
highest order is sovereign, and as such, its acts impugned by petitioner are
beyond the control of Congress and the Courts." 30
This Court therein made its unequivocal choice of strictly
requiring faithful (which really includes substantial) compliance with
the mandatory requirements of the amending process.
1. In denying reconsideration of our judgment of October 16, 1971
prohibiting the submittal in an advance election of 1971 Constitutional
Convention's Organic Resolution No. 1 proposing to amend Article V,
section 1 of the Constitution by lowering the voting age to 18 years (vice 21
years) 30a "without prejudice to other amendments that will be proposed
in the future ... on other portions of the amended section", this Court
stated that "the constitutional provision in question (as proposed) presents
no doubt which may be resolved in favor of respondents and intervenors.
We do not believe such doubt can exist only because it is urged that
the end sought to be achieved is to be desired. Paraphrasing no less than
the President of Constitutional Convention of 1934, Claro M. Recto, let
those who would put aside, invoking grounds at best controversial, any
mandate of the fundamental law purportedly in order to attain some
laudable objective bear in mind that someday somehow others with
purportedly more laudable objectives may take advantage of the
precedent and continue the destruction of the Constitution, making those
who laid down the precedent of justifying deviations from the
requirements of the Constitution the victims of their own folly." 31
2. This Court held in Tolentino that:
... as to matters not related to its internal operation
and the performance of its assigned mission to propose
amendments to the Constitution, the Convention and
its officers and members are all subject to all the
provisions of the existing Constitution. Now We hold
that even as to its latter task of proposing amendments
to the Constitution, it is subject to the provisions of
Section 1 of Article XV. This must be so, because it is
plain to Us that the framers of the Constitution took
care that the process of amending the same
should not be undertaken with the
same ease and facility in changing an ordinary
legislation. Constitution making is the most valued
power, second to none, of the people in a
constitutional democracy such as the one our founding
fathers have chosen for this nation, and which we of
the succeeding generations generally cherish. And
because the Constitution affects the lives,
fortunes,future and every other conceivable aspect of
the lives of all the people within the country and those
subject to its sovereignty, every degree of care is taken
in preparing and drafting it. A constitution worthy of
the people for deliberation and study. It is obvious that
correspondingly, any amendment of the Constitution is
of no less importance than the whole Constitution
itself, and perforce must be conceived and prepared
with as much care and deliberation. From the very
Page 146 of 158
nature of things, the drafters of an original constitution,
as already observed earlier, operate without any
limitations, restraints or inhibitions save those that
they may impose upon themselves. This is not
necessarily true of subsequent conventions called to
amend the original constitution. Generally, the framers
of the latter see to it that their handiwork is not lightly
treated and as easily mutilated or changed, not only for
reasons purely personal but more importantly, because
written constitutions are supposed to be designed so as
to last for some time, if not for ages, or for, at least, as
long as they can be adopted to the needs and
exigencies of the people, hence, they must
be insulated against precipitate and hasty actions
motivated by more or less passing political moods or
fancies. Thus, as a rule, the original constitutions carry
with them limitations and conditions, more or less
stringent, made so by the people themselves, in regard
to the process of their amendment. And when such
limitations or conditions are so incorporated in the
original constitution, it does not lie in the delegates of
any subsequent convention to claim that they may
ignore and disregard such conditions because they are
powerful and omnipotent as their original
counterparts. 32
3. This Court in Tolentino likewise formally adopted the doctrine of proper
submission first advanced in Gonzales vs. Comelec33, thus:
We are certain no one can deny that in order that a
plebiscite for the ratification of an amendment to the
Constitution may be validly held, it must provide the
voter not only sufficient time but ample basisfor
an intelligent appraisal of the nature of
amendment per se as well as its relation to the other
parts of the Constitution with which it has to form a
harmonious whole. In the context of the present state
of things, where the Convention hardly started
considering the merits of hundreds, if not thousands,
proposals to amend the existing Constitution, to
present to people any single proposal or a few of them
cannot comply with this requirement. We are of the
opinion that the present Constitution does not
contemplate in Section 1 of Article XV a plebiscite or
"election" wherein the people are in the dark as to
frame of reference they can base their judgment on.
We reject the rationalization that the present
Constitution is a possible frame of reference, for the

simple reason that intervenors themselves are stating
the sole purpose of the proposed amendment is to
enable the eighteen year olds to take part in the
election for the ratification of the Constitution to be
drafted by the Convention. In brief, under the proposed
plebiscite, there can be, in the language of Justice
Sanchez, speaking for the six members of the Court in
Gonzales, supra, 'no proper submission.' " 34
4. Four other members of the Court 35 in a separate concurrence
in Tolentino, expressed their "essential agreement" with Justice Sanchez'
separate opinion in Gonzales on the need for "fair
submission (and) intelligent rejection" as "minimum requirements that
must be met in order that there can be a proper submission to the people
of a proposed constitutional amendment" thus:
... amendments must be fairly laid before the people
for their blessing or spurning. The people are not to be
mere rubber stamps. They are not to vote blindly. They
must be afforded ample opportunity to mull over the
original provisions, compare them with the proposed
amendments, and try to reach a conclusion as the
dictates of their conscience suggest, free from the
incubus of extraneous or possibly insidious influences.
We believe the word "submitted" can only mean that
the government, within its maximum capabilities,
should strain every effort to inform every citizen of the
provisions to be amended, and the proposed
amendments and the meaning, nature and effects
thereof. By this, we are not to be understood as saying
that, if one citizen or 100 citizens or 1,000 citizens
cannot be reached, then there is no submission within
the meaning of the word as intended by the framers of
the Constitution. What the Constitution in effect directs
is that the government, in submitting an amendment
for ratification, should put every instrumentality or
agency within its structural framework to enlighten the
people, educate them with respect to their act of
ratification or rejection. For as we have earlier stated,
one thing is submission and another is ratification.
There must be fair submission, intelligent consent or
rejection. 36
They stressed further the need for undivided attention, sufficient
information and full debate, conformably to the intendment of Article XV,
section 1 of the Constitution, in this wise:
A number of doubts or misgivings could conceivably
and logically assail the average voter. Why should the
voting age be lowered at all, in the first place? Why
should the new voting age be precisely 18 years, and
not 19 or 20? And why not 17? Or even 16 or 15? Is the
18-year old as mature as the 21-year old, so that there
is no need of an educational qualification to entitle him
to vote? In this age of permissiveness and dissent, can
the 18-year old be relied upon to vote with
judiciousness when the 21-year old, in the past
elections, has not performed so well? If the proposed
amendment is voted down by the people, will the
Constitutional Convention insist on the said
amendment? Why is there an unseemly haste on the
part of the Constitutional Convention in having this
particular proposed amendment ratified at this
particular time? Do some of the members of the
Convention have future political plans which they want
to begin to subserve by the approval this year of this
amendment? If this amendment is approved, does it
thereby mean that the 18-year old should not also
shoulder the moral and legal responsibilities of the 21-
year old? Will he be required to compulsory military
service under the colors? Will the contractual consent
be reduced to 18 years? If I vote against the
amendment, will I not be unfair to my own child who
will be 18 years old, come 1973?
The above are just samplings from here, there and
everywhere — from a domain (of searching questions)
the bounds of which are not immediately ascertainable.
Surely, many more questions can be added to the
already long litany. And the answers cannot except as
the questions are debated fully, pondered upon
purposefully, and accorded undivided attention.
Scanning the contemporary scene, we say that the
people are not, and by election time will not
be, sufficiently informed of the meaning, nature and
effects of the proposed constitutional amendment.
They have not been afforded ample time to deliberate
thereon conscientiously. They have been and are
effectively distracted from a full and dispassionate
consideration of the merits and demerits of the
proposed amendment by their traditional pervasive
involvement in local elections and politics. They cannot
thus weigh in tranquility the need for and the wisdom
Page 147 of 158
proposed
amendment. 37
5. This Court therein dismissed the plea of disregarding mandatory
requirements of the amending process "in favor of allowing the sovereign
people to express their decision on the proposed amendments" as
"anachronistic in the real constitutionalism and repugnant to the essence
of the rule of law," in the following terms:
... The preamble of the Constitution says that the
Constitution has been ordained by the 'Filipino people,
imploring the aid of Divine Providence.' Section 1 of
Article XV is nothing than a part of the Constitution
thus ordained by the people. Hence, in construing said
section, We must read it as if thepeople had said, 'This
Constitution may be amended, but it is our will that the
amendment must beproposed and submitted to Us for
ratification only in the manner herein provided.' ...
Accordingly, the real issue here cannot be whether or
not the amending process delineated by the present
Constitution may be disregarded in favor of allowing
the sovereign people to express their decision on the
proposed amendments, if only because it is evident
that the very idea of departing from the fundamental
law is anachronistic in the realm of
constitutionalism and repugnant to the essence of the
rule of law; rather, it is whether or not the provisional
nature of the proposed amendment and the manner of
its submission to the people for ratification or
rejection conform with the mandate of the
people themselves in such regard, as expressed in, the
Constitution itself. 38
6. This Court, in not heeding the popular clamor, thus stated its position:
"(I)t would be tragic and contrary to the plain compulsion of these
perspectives, if the Court were to allow itself in deciding this case to be
carried astray by considerations other than the imperatives of
the rule of law and of the applicable provisions of the Constitution.
Needless to say, in a larger measure than when it binds other departments
of the government or any other official or entity, the Constitution imposes
upon the Court the sacred duty to give meaning and vigor to the
Constitution, by interpreting and construing its provisions in appropriate
cases with the proper parties and by striking down any act violative
thereof. Here, as in all other cases, We are resolved
to discharge that duty. 39

7. The Chief Justice, in his separate opinion in Tolentino concurring with
this Court's denial of the motion for reconsideration, succinctly restated
this Court's position on the fundamentals, as follows:
— On the premature submission of a partial
amendment proposal, with a "temporary provisional or
tentative character": — "... a partial amendment would
deprive the voters of the context which is usually
necessary for them to make a reasonably intelligent
appraisal of the issue submitted for their ratification or
rejection. ... Then, too, the submission to a plebiscite of
a partial amendment, without a definite frame of
reference, is fraught with possibilities which may
jeopardize the social fabric. For one thing, it opens the
door to wild speculations. It offers ample opportunities
for overzealous leaders and members of opposing
political camps to unduly exaggerate the pros and cons
of the partial amendment proposed. In short, it is apt
to breed false hopes and create wrong impressions. As
a consequence, it is bound to unduly strain the people's
faith in the soundness and validity of democratic
processes and institutions.
— On the plea to allow submission to the sovereign
people of the "fragmentary and incomplete" proposal,
although inconsistent with the letter and spirit of the
Constitution: "The view, has, also, advanced that the
foregoing considerations are not decisive on the issue
before Us, inasmuch as thepeople are sovereign, and
the partial amendment involved in this case is being
submitted to them. The issue before Us is whether or
not said partial amendment may be validly
submitted to the people for ratification "in a plebiscite
coincide with the local elections in November 1971,"
and this particular issue will not be submitted to the
people. What is more, the Constitution does not permit
its submission to the people. The question sought to be
settled in the scheduled plebiscite is whether or not the
people are in favor of the reduction of the voting age.
— On a "political" rather than "legalistic" approach: "Is
this approach to the problem too "legalistic?" This term
has possible connotations. It may mean strict
adherence to the law, which in the case at bar is
the Supreme Law of the land. On point, suffice it to say
that, in compliance with the specific man of such
Supreme Law, the members of the Supreme Court
taken the requisite "oath to support and defend the
Constitution." ... Then, again, the term "legalistic" may
be used to suggest inversely that the somewhat
strained interpretation of the Constitution being urged
upon this Court be tolerated or, at least, overlooked,
upon the theory that the partial amendment on voting
age is badly needed and reflects the will of the people,
specially the youth. This course of action favors, in
effect, adoption of apolitical approach, inasmuch as the
advisability of the amendment and an appraisal of the
people's feeling thereon political matters. In fact, apart
from the obvious message of the mass media, and, at
times, of the pulpit, the Court has been literally
bombarded with scores of handwritten letters, almost
all of which bear the penmanship and the signature of
girls, as well as letterhead of some sectarian
educational institutions, generally stating that the
writer is 18 years of age and urging that she or he be
allowed to vote. Thus, the pressure of public opinion
has brought to bear heavily upon the Court for a
reconsideration of its decision in the case at bar.
As above stated, however, the wisdom of the
amendment and the popularity thereof are political
questions beyond our province. In fact, respondents
and the intervenors originally maintained that We have
no jurisdiction to entertain the petition herein, upon
the ground that the issue therein raised is a political
one. Aside from the absence of authority to pass upon
political question, it is obviously improper and unwise
for the bench to develop into such questions owing to
the danger of getting involved in politics, more likely of
a partisan nature, and, hence, of impairing the image
and the usefulness of courts of justice as objective and
impartial arbiters of justiciable controversies.
Then, too, the suggested course of action, if adopted,
would constitute a grievous disservice to the people
and the very Convention itself. Indeed, the latter and
the Constitution it is in the process of drafting stand
essentially for the Rule of Law. However, as the
Supreme Law of the land, a Constitution would not be
worthy of its name, and the Convention called upon to
draft it would be engaged in a futile undertaking, if we
did not exact faithful adherence to the fundamental
tenets set forth in the Constitution and compliance
with its provisions were not obligatory. If we, in effect,
approved, consented to or even overlooked a
circumvention of said tenets and provisions, because of
Page 148 of 158
the good intention with which Resolution No. 1 is
animated, the Court would thereby become
the Judge of the good or bad intentions of the
Convention and thus be involved in a question
essentially political in nature.
This is confirmed by the plea made in the motions for
reconsideration in favor of the exercise of judicial
statesmanship in deciding the present case. Indeed,
"politics" is the word commonly used to epitomize
compromise, even with principles, for the sake of
political expediency or the advancement of the bid for
power of a given political party. Upon the other hand,
statesmanship is the expression usually availed of to
refer to high politics or politics on the highest level. In
any event, politics, political approach, political
expediency and statesmanship are generally
associated, and often identified, with the dictum that
"the end justifies the means." I earnestly hope that the
administration of justice in this country and the
Supreme Court, in particular, will adhere to or approve
or indorse such dictum." 40
Tolentino, he pointed out that although "(M)ovants' submittal that "(T)he
primary purpose for the submission of the proposed amendment lowering
the voting age to the plebiscite on November 8, 1971 is to enable the youth
18 to 20 years who comprise more than three (3) million of our population
to participate in the ratification of the new Constitution in so far as "to
allow young people who would be governed by the Constitution to be
given a say on what kind of Constitution they will have" is a laudable end,
... those urging the vitality and importance of the proposed constitutional
amendment and its approval ahead of the complete and final draft of the
Constitution must seek a valid solution to achieve it in a manner sanctioned
by the amendatory process ordained by our people in the present
Constitution" 41 — so that there may be "submitted, not piece-meal, but by
way of complete and final amendments as an integrated whole (integrated
either with the subsisting Constitution or with the new proposed
Constitution)..."
9. The universal validity of the vital constitutional precepts and principles
above-enunciated can hardly be gainsaid. I fail to see the attempted
distinction of restricting their application to proposals for amendments of
particular provisions of the Constitution and not to so-called entirely new
Constitutions. Amendments to an existing Constitution presumably may be
only of certain parts or in toto, and in the latter case would rise to an
entirely new Constitution. Where this Court held in Tolentino that
"any amendment of the Constitution is of no less importance than the
whole Constitution itself and perforce must be conceived and prepared

with as much care and deliberation", it would appeal that the reverse
would equally be true; which is to say, that the adoption of a whole new
Constitution would be of no less importance than any particular
amendment and therefore the necessary care and deliberation as well as
the mandatory restrictions and safeguards in the amending process
ordained by the people themselves so that "they (may) be insulated against
precipitate and hasty actions motivated by more or less passing political
moods or fancies" must necessarily equally apply thereto.
III
1. To restate the basic premises, the people provided in Article XV of the
Constitution for the amending process only"by approval by a majority of
the votes cast at an election at which the (duly proposed) amendments are
submitted to the people for their ratification."
The people ordained in Article V, section 1 that only those thereby
enfranchised and granted the right of suffrage may speak the "will of the
body politic", viz, qualified literate voters twenty one years of age or over
with one year's residence in the municipality where they have registered.
The people, not as yet satisfied, further provided by amendment duly
approved in 1940 in accordance with Article XV, for the creation of
an independent Commission on Elections with "exclusive charge" for the
purpose of "insuring free, orderly and honest elections" and ascertaining
the true will of the electorate — and more, as ruled by this Court
in Tolentino, in the case of proposed constitutional amendments,
insuring proper submission to the electorate of such proposals. 42
2. A Massachussets case 43 with a constitutional system and provisions
analogous to ours, best defined the uses of the term "people" as a body
politic and "people" in the political sense who are synonymous with the
qualified voters granted the right to vote by the existing Constitution and
who therefore are "the sole organs through which the will of the body
politic can be expressed."
It was pointed out therein that "(T)he word 'people' may have somewhat
varying significations dependent upon the connection in which it is used. In
some connections in the Constitution it is confined to citizens and means
the same as citizens. It excludes aliens. It includes men, women and
children. It comprehends not only the sane, competent, law-abiding and
educated, but also those who are wholly or in part dependents and charges
upon society by reason of immaturity, mental or moral deficiency or lack of
the common essentials of education. All these persons are secured
fundamental guarantees of the Constitution in life, liberty and property
and the pursuit of happiness, except as these may be limited for the
protection of society."
Page 149 of 158
In the sense of "body politic (as) formed by voluntary association of barrio, stating the date, time and place thereof, the questions or issues to
individuals" governed by a constitution and common laws in a "social be decided, action to be taken by the voters, and such other information
compact ... for the common good" and in another sense of "people" in a relevant to the holding of the plebiscite." 46
"practical sense" for "political purposes" it was therein fittingly stated that
in this sense, "people" comprises many who, by reason of want of years, of As to voting at such barrio plebiscites, the Charter further requires that
capacity or of the educational requirements of Article 20 of the "(A)ll duly registered barrio assembly members qualified to vote may vote
amendments of the Constitution, can have no voice in any government and in the plebiscite. Voting procedures may be made either in writing as in
who yet are entitled to all the immunities and protection established by regular elections, and/or declaration by the voters to the board of election
the Constitution. 'People' in this aspect is coextensive with the body politic. tellers." 47
But it is obvious that 'people' cannot be used with this broad meaning of
political signification. The 'people' in this connection means that part of the
The subjects of the barrio plebiscites are likewise delimited thus: "A
entire body of inhabitants who under the Constitution are intrusted with
plebiscite may be called to decide on the recall of any member of the
the exercise of the sovereign power and the conduct of government.
barrio council. A plebiscite shall be called to approve any budgetary,
The 'people' in the Constitution in a practical sense means those who under
supplemental appropriations or special tax ordinances" and the required
the existing Constitution possess the right to exercise the elective franchise
majority vote is specified: "(F)or taking action on any of the above
and who, while that instrument remains in force unchanged, will be
enumerated measures, majority vote of all the barrio assembly
the sole organs through which the will of the body politic can be expressed.
members registered in the list of the barrio secretary is necessary." 48
'People' for political purposes must be
considered synonymous with qualified voters.' "
The qualifications for voters in such barrio plebiscites and elections of
barrio officials 49 comply with the suffrage qualifications of Article V,
As was also ruled by the U.S. Supreme Court, "... While the people are thus
section 1 of the Constitution and provide that "(S)EC. 10. Qualifications of
the source of political power, their governments, national and state, have
Voters and Candidates. — Every citizen of the Philippines, twenty one
been limited by constitutions, and they have themselves thereby set
years of age or over, able to read and write, who has been a resident of the
bounds to their own power, as against the sudden impulse of mere
barrio during the six months immediately preceding the election, duly
majorities." 44
registered in the list of voters by the barrio secretary, who is not otherwise
disqualified, may vote or be a candidate in the barrio elections." 50
From the text of Article XV of our Constitution, requiring approval of
amendment proposals "by a majority of the votes cast at an election at
IV
which the amendments are submitted to the people for their ratification",
it seems obvious as above-stated that "people" as therein used must be
considered synonymous with "qualified voters" as enfranchised under 1. Since it appears on the face of Proclamation 1102 that the mandatory
Article V, section 1 of the Constitution — since only "people" who are requirements under the above-cited constitutional articles have not been
qualified voters can exercise the right of suffrage and cast their votes. complied with and that no election or plebiscite for ratification as therein
provided as well as in section 16 of Article XVII of the proposed
Constitution itself 51 has been called or held, there cannot be said to have
3. Sound constitutional policy and the sheer necessity of adequate
been a valid ratification.
safeguards as ordained by the Constitution and implementing statutes to
ascertain and record the will of the people in free, orderly and honest
elections supervised by the Comelec make it imperative that there be strict 2. Petitioners raised serious questions as to the veracity and genuineness
adherence to the constitutional requirements laid down for the process of of the reports or certificates of results purportedly showing unaccountable
amending in toto or in part the supreme law of the land. discrepancies in seven figures in just five provinces 52 between the reports
as certified by the Department of Local Governments and the reports as
directly submitted by the provincial and city executives, which latter
Even at barrio level 45 the Revised Barrio Charter fixes certain safeguards
reports respondents disclaimed inter alia as not final and complete or as
for the holding of barrio plebiscites thus: "SEC. 6. Plebiscite. — A plebiscite
not signed; 53whether the reported votes of approval of the proposed
may be held in the barrio when authorized by a majority vote of the
Constitution conditioned upon the non-convening of the interim National
members present in the barrio assembly, there being a quorum, or when
Assembly provided in Article XVII, section 1 thereof, 54 may be considered
called by at least four members of the barrio council: Provided, however,
as valid; the allegedly huge and uniform votes reported; and many others.
That no plebiscite shall be held until after thirty days from its approval by
either body, and such plebiscite has been given the widest publicity in the

3. These questions only serve to justify and show the basic validity of the
universal principle governing written constitutions that proposed
amendments thereto or in replacement thereof may be ratified only in the
particular mode or manner prescribed therein by the people. Under Article
XV, section 1 of our Constitution, amendments thereto may be ratified only
in the one way therein provided, i.e. in an election or plebiscite held in
accordance with law and duly supervised by the Commission on Elections,
and which is participated in only by qualified and duly registered voters. In
this manner, the safeguards provided by the election code generally assure
the true ascertainment of the results of the vote and interested parties
would have an opportunity to thresh out properly before the Comelec all
such questions in pre-proclamation proceedings.
4. At any rate, unless respondents seriously intend to question the very
statements and pronouncements in Proclamation 1102 itself which shows
on its face, as already stated, that the mandatory amending process
required by the (1935) Constitution was not observed, the cases at bar
need not reach the stage of answering the host of questions, raised by
petitioners against the procedure observed by the Citizens Assemblies and
the reported referendum results — since the purported ratification is
rendered nugatory by virtue of such non-observance.
5. Finally, as to respondents' argument that the President issued
Proclamation 1102 "as "agent" of the Constitutional Convention" 55 under
Resolution No. 5844 approved on November 22, 1973, and "as agent of the
Convention the President could devise other forms of plebiscite to
determine the will of the majority vis-a-vis the ratification of the proposed
Constitution." 56
The minutes of November 22, 1972, of the Convention, however, do not at
all support this contention. On the contrary, the said minutes fully show
that the Convention's proposal and "agency" was that the President issue a
decree precisely calling a plebiscite for the ratification of the proposed new
Constitution on an appropriate date, under the charge of the Comelec, and
with a reasonable period for an information campaign, as follows:
12. Upon recognition by the Chair, Delegate Duavit
moved for the approval of the resolution, the
resolution portion of which read as follows:
"RESOLVED, AS IT IS HEREBY
RESOLVED, that the 1971
Constitutional Convention propose
to President Ferdinand E. Marcos
that a decree be issued calling a
plebiscite for the ratification of the
proposed New Constitution on such
appropriate date as he shall
determine and providing for the
necessary funds therefor, and that
copies of this resolution as
approved in plenary session be
transmitted to the President of the
Philippines and the Commission on
Elections for implementation."
He suggested that in view of the expected approval of
the final draft of the new Constitution by the end of
November 1972 according to the Convention's
timetable, it would be necessary to lay the groundwork
for the appropriate agencies of the government to
undertake the necessary preparation for the plebiscite.
xxx xxx xxx
12.2 Interpellating, Delegate Pimentel (V.) contended
that the resolution was unnecessary because section
15, Article XVII on the Transitory Provision, which had
already been approved on second and third readings,
provided that the new constitution should be ratified in
a plebiscite called for the purpose by the incumbent
President. Delegate Duavit replied that the provision
referred to did not include the appropriation of funds
for the plebiscite and that, moreover, the resolution
was intended to serve formal notice to the President
and the Commission on Elections to initiate the
necessary preparations.
xxx xxx xxx
12.4 Interpellating, Delegate Madarang suggested that
a reasonable period for an information campaign was
necessary in order to properly apprise the people of the
implications and significance of the new charter.
Delegate Duavit agreed, adding that this was precisely
why the resolution was modified to give the President
the discretion to choose the most appropriate date for
the plebiscite.
12.5 Delegate Laggui asked whether a formal
communication to the President informing him of the
adoption of the new Constitution would not suffice
considering that under Section 15 of the Transitory
Provisions, the President would be duty-bound to call a
plebiscite for its ratification. Delegate Duavit replied in
Page 150 of 158
the negative, adding that the resolution was necessary
to serve notice to the proper authorities to prepare
everything necessary for the plebiscite.
12.6 In reply to Delegate Britanico, Delegate Duavit
stated that the mechanics for the holding of
theplebiscite would be laid down by the Commission on
Elections in coordination with the President.
12.7 Delegate Catan inquired if such mechanics for the
plebiscite could include a partial lifting of martial law in
order to allow the people to assemble peaceably to
discuss the new Constitution. Delegate Duavit
suggested that the Committee on Plebiscite and
Ratification could coordinate with the COMELEC on the
matter.
12.8 Delegate Guzman moved for the previous
question. The Chair declared that there was one more
interpellant and that a prior reservation had been
made for the presentation of such a motion.
1.8a Delegate Guzman withdrew his motion.
12.9 Delegate Astilla suggested in his interpellation that
there was actually no need for such a resolution in view
of the provision of section 15, Article XVII on the
Transitory Provisions. Delegate Duavit disagreed,
pointing out that the said provision did not provide for
the funds necessary for the purpose.
13. Delegate Ozamiz then moved to close the debate
and proceed to the period of amendment.
13.1 Floor Leader Montejo stated that there were no
reservations to amend the resolution.
13.2 Delegate Ozamiz then moved for the previous
question. Submitted to a vote, the motion was
approved.
Upon request of the Chair, Delegate Duavit restated
the resolution for voting.
14.1. Delegate Ordoñez moved for nominal voting.
Submitted to a vote, the motion was lost.

14.2. Thereupon, the Chair submitted the resolution to
a vote. It was approved by a show of hands. 57
I, therefore, vote to deny respondents' motion to dismiss and to give due
course to the petitions.
ANTONIO, J., concurring:
In conformity with my reservation, I shall discuss the grounds for my
concurrence.
I power, with the added specific grant of power under the "Commander-in-
It is my view that to preserve the independence of the State, the
maintenance of the existing constitutional order and the defense of the
political and social liberties of the people, in times of a grave emergency,
when the legislative branch of the government is unable to function or its
functioning would itself threaten the public safety, the Chief Executive may
promulgate measures legislative in character, for the successful
prosecution of such objectives. For the "President's power as Commander-
in-chief has been transformed from a simple power of military command to
a vast reservoir of indeterminate powers in time of emergency. ... In other
words, the principal canons of constitutional interpretation are ... set aside
so far as concerns both the scope of the national power and the capacity of
the President to gather unto himself all constitutionally available powers in
order the more effectively to focus them upon the task of the hour."
(Corwin, The President: Office & Powers, pp. 317, 318, [1948]).
1. The proclamation of martial rule, ushered the commencement of a crisis
government in this country. In terms of power, crisis government in a
constitutional democracy entails the concentration of governmental
power. "The more complete the separation of powers in a constitutional
system, the more difficult, and yet the more necessary" according to
Rossiter, "will be their fusion in time of crisis... The power of the state in
crisis must not only be concentrated and expanded, it must be freed from
the normal system of constitutional and legal limitations. One of the basic
features of emergency powers is the release of the government from the
paralysis of constitutional restraints" (Rossiter, Constitutional Dictatorship,
p. 290).
It is clearly recognized that in moments of peril the effective action of the
government is channeled through the person of the Chief Executive.
"Energy in the executive," according to Hamilton, "is essential to the
protection of the community against foreign attacks ... to the protection of
property against those irregular and high-handed combinations which
sometimes interrupt the ordinary course of justice; to the security of
liberty against the enterprises and assaults of ambition, of faction, and of
anarchy." (The Federalist, Number 70). "The entire strength of the nation",
said Justice Brewer in the Debs case (158 U.S. 564; 39 L. ed. 1092), "may be
used to enforce in any part of the land the full and free exercise of all
national powers and the security of all rights entrusted by the constitution
to its care." The marshalling and employment of the "strength of the
nation" are matters for the discretion of the Chief Executive. The
President's powers in time of emergency defy precise definition since their
extent and limitations are largely dependent upon conditions and
circumstances.
2. The power of the President to act decisively in a crisis has been
grounded on the broad conferment upon the Presidency of the Executive
Chief" clause of the constitution. The contours of such powers have been
shaped more by a long line of historical precedents of Presidential action in
times of crisis, rather than judicial interpretation. Lincoln wedded his
powers under the "commander-in-chief" clause with his duty "to take care
that the laws be faithfully executed," to justify the series of extraordinary
measures which he took — the calling of volunteers for military service, the
augmentation of the regular army and navy, the payment of two million
dollars from unappropriated funds in the Treasury to persons unauthorized
to receive it, the closing of the Post Office to "treasonable
correspondence", the blockade of southern ports, the suspension of the
writ of habeas corpus, the arrest and detention of persons "who were
represented to him" as being engaged in or contemplating "treasonable
practices" — all this for the most part without the least statutory
authorization. Those actions were justified by the imperatives of his logic,
that the President may, in an emergency thought by him to require it,
partially suspend the constitution. Thus his famous question: "Are all laws
but one to be unexecuted, and the Government itself go to pieces lest that
one be violated?" The actions of Lincoln "assert for the President",
according to Corwin, "an initiative of indefinite scope and legislative in
effect in meeting the domestic aspects of a war emergency." (Corwin, The
President: Office & Powers, p. 280 [1948]). The facts of the civil war have
shown conclusively that in meeting the domestic problems as a
consequence of a great war, an indefinite power must be attributed to the
President to take emergency measures. The concept of "emergency" under
which the Chief Executive exercised extraordinary powers underwent
correlative enlargement during the first and second World Wars. From its
narrow concept as an "emergency" in time of war during the Civil War and
World War I, the concept has been expanded in World War II to include the
"emergency" preceding the war and even after it. "The Second World War"
observed Corwin and Koenig, was the First World War writ large, and the
quasi-legislative powers of Franklin Roosevelt as "Commander-in-Chief in
wartime"... burgeoned correspondingly. The precedents were there to be
sure, most of them from the First World War, but they proliferated
amazingly. What is more, Roosevelt took his first step toward war some
fifteen months before our entrance into shooting war. This step occurred
in September, 1940, when he handed over fifty so-called overage
Page 151 of 158
destroyers to Great Britain. The truth is, they were not overage, but had
been recently reconditioned and recommissioned. ... Actually, what
President Roosevelt did was to take over for the nonce Congress's power to
dispose of property of the United States (Article IV, Section 3) and to repeal
at least two statutes." (Corwin & Koenig, The Presidency Today, New York
University Press, 1956; sf Corwin, The President: Office and Powers, 1948.)
The creation of public offices is a power confided by the constitution to
Congress. And yet President Wilson, during World War I on the basis of his
powers under the "Commander-in-Chief" clause created "offices" which
were copied in lavish scale by President Roosevelt in World War II. In April
1942, thirty-five "executive agencies" were purely of Presidential creation.
On June 7, 1941 on the basis of his powers as "Commander-in-Chief", he
issued an executive order seizing the North American Aviation plant of
Inglewood, California, where production stopped as a consequence of a
strike. This was justified by the government as the exercise of presidential
power growing out of the "duty constitutionally and inherently resting
upon the President to exert his civil and military as well as his moral
authority to keep the defense efforts of the United States a going concern"
as well as "to obtain supplies for which Congress has appropriated money,
and which it has directed the President to obtain." On a similar
justification, other plants and industries were taken over by the
government. It is true that in Youngstown Sheet & Tube vs. Sawyer (343
U.S. 579; 72 S. Ct. 863; 96 L. Ed. 1153, [1952]), the Supreme Court of the
United States did not sustain the claims that the President could, as the
Nation's Chief Executive and Commander-in-Chief of the armed forces,
validly order the seizure of most of the country's steel mills. The Court
however did not face the naked question of the President's power to seize
steel plants in the absence of any congressional enactment or expressions
of policy. The majority of the Court found that this legislative occupation of
the field made untenable the President's claim of authority to seize the
plants as an exercise of inherent executive power or as Commander-in-
Chief. Justice Clark, in his concurrence to the main opinion of the Court,
explicitly asserted that the President does possess, in the absence of
restrictive legislation, a residual or resultant power above or in
consequence of his granted powers, to deal with emergencies that he
regards as threatening the national security. The same view was shared
with vague qualification by Justices Frankfurter and Jackson, two of the
concurring Justices. The three dissenting Justices, speaking through Chief
Justice Vinson, apparently went further by quoting with approval a passage
extracted from the brief of the government in the case of United States vs.
Midwest Oil Co., (236 U.S. 459 59 L. Ed. 673, 35 S. Ct. 309) where the court
sustained the power of the President to order withdrawals from the public
domain not only without Congressional sanction but even contrary to
Congressional statutes.
It is evident therefore that the Steel Seizure Case, cannot be invoked as an
authority to support the view that the President in times of a grave crisis

does not possess a residual power above or in consequence of his granted
powers, to deal with emergencies that he regards as threatening the
national security. The lesson of the Steel Seizure case, according to Corwin
and Koenig, "Unquestionably ... tends to supplement presidential
emergency power to adopt temporary remedial legislation when Congress
has been, in the judgment of the President, unduly remiss in taking
cognizance of and acting on a given situation." (Corwin and Koenig, The
Presidency Today, New York University Press, 1956).
The accumulation of precedents has thus built up the presidential power
under emergency conditions to "dimensions of executive prerogative as
described by John Locke, of a power to wit, to fill needed gaps in the law,
or even to supersede it so far as may be requisite to realize the
fundamental law of nature and government, namely, that as much as may
be all the members of society are to be preserved." (Corwin and Koenig, The
Presidency Today).
In the light of the accumulated precedents, how could it be reasonably
argued therefore, that the President had no power to issue Presidential
Decree Nos. 86 and 86-A as well as Proclamation No. 1102, since these
measures were considered indispensable to effect the desired reforms at
the shortest time possible and hasten the restoration of normalcy? It is
unavailing for petitioners to contend that we are not faced by an actual
"shooting war" for today's concept of the emergency which justified the
exercise of those powers has of necessity been expanded to meet the
exigencies of new dangers and crisis that directly threaten the nation's
continued and constitutional existence. For as Corwin observed: "... today
the concept of 'war' as a special type of emergency warranting the
realization of constitutional limitations tends to spread, as it were, in both
directions, so that there is not only "the war before the war," but the 'war
after the war.' Indeed, in the economic crisis from which the New Deal may
be said to have issued, the nation was confronted in the opinion of the late
President with an 'emergency greater than war'; and in sustaining certain
of the New Deal measures the Court invoked the justification of
'emergency.' In the final result constitutional practices of wartime have
moulded the Constitution to greater or less extent for peacetime as well,
seem likely to do so still more pronouncedly under fresh conditions of
crisis." (Corwin, Ibid. p. 318.)
The same view was expressed by Rossiter thus:
The second crisis is rebellion, when the authority of a
constitutional government is resisted openly by large
numbers of citizens who are engaged in violent
insurrection against enforcement of its laws or are bent
on capturing it illegally or destroying it altogether. The
third crisis, one recognized particularly in modern times
as sanctioning emergency action by constitutional
governments, is economic depression. The economic
troubles which plagued all the countries of the world in
the early thirties involved governmental methods of an
unquestionably dictatorial character in many
democracies. It was thereby acknowledged that an
economic existence as a war or a rebellion. And these
are not the only cases which have justified
extraordinary governmental action in nations like the
United States. Fire, flood, drought, earthquake, riots,
great strikes have all been dealt with by unusual and of
dictatorial methods. Wars are not won by debating
societies, rebellions are not suppressed by judicial
injunctions, reemployment of twelve million jobless
citizens will not be effected through a scrupulous
regard for the tenets of free enterprise, hardships
caused by the eruptions of nature cannot be mitigated
letting nature take its course. The Civil War, the
depression of 1933 and the recent global conflict were
not and could not have been successfully resolved by
governments similar to those of James Buchanan,
William Howard Taft, or Calvin Coolidge. (Rossiter,
Constitutional Dictatorship — Crisis of Government in
the Modern Democracies, p. 6 [1948).
II
We are next confronted with the insistence of Petitioners that the
referendum in question not having been done inaccordance with the
provisions of existing election laws, which only qualified voters who are
allowed to participate, under the supervision of the Commission on
Elections, the new Constitution, should therefore be a nullity. Such an
argument is predicated upon an assumption, that Article XV of the 1935
Constitution provides the method for the revision of the constitution, and
automatically apply in the final approval of such proposed new
Constitution the provisions of the election law and those of Article V and X
of the old Constitution. We search in vain for any provision in the old
charter specifically providing for such procedure in the case of a
total revision or a rewriting of the whole constitution.
1. There is clearly a distinction between revision and amendment of an
existing constitution. Revision may involve a rewriting of
the whole constitution. The act of amending a constitution, on the other
hand, envisages a change of only specific provisions. The intention of an act
to amend is not the change of the entire constitution but only
the improvement of specific parts of the existing constitution of the
addition of provisions deemed essential as a consequence of new
constitutions or the elimination of parts already considered obsolete or
unresponsive to the needs of the times.1 The 1973 Constitution is not a
Page 152 of 158
mere amendment to the 1935 Constitution. It is a completely new
fundamental charter embodying new political, social and economic
concepts.
According to an eminent authority on Political Law, "The Constitution of
the Philippines and that of the United States expressly provide merely for
methods of amendment. They are silent on the subject of revision. But this
is not a fatal omission. There is nothing that can legally prevent a
convention from actually revising the Constitution of the Philippines or of
the United States even were such conventions called merely for the
purpose of proposing and submitting amendments to the people. For in
the final analysis, it is the approval of the people that gives validity to any
proposal of amendment or revision." (Sinco, Philippine Political Law, p. 49).
Since the 1935 Constitution does not specifically provide for the method or
procedure for the revision or for the approval of a new constitution, should
it now be held, that the people have placed such restrictions on themselves
that they are not disabled from exercising their right as the ultimate source
of political power from changing the old constitution which, in their view,
was not responsive to their needs and in adopting a new charter of
government to enable them to rid themselves from the shackles of
traditional norms and to pursue with new dynamism the realization of their
true longings and aspirations, except in the manner and form provided by
Congress for previous plebiscites? Was not the expansion of the base of
political participation, by the inclusion of the youth in the process of
ratification who after all constitute the preponderant majority more in
accord with the spirit and philosophy of the constitution that political
power is inherent in the people collectively? As clearly expounded by
Justice Makasiar, in his opinion, in all the cases cited where the Courts held
that the submission of the proposed amendment was illegal due to the
absence of substantial compliance with the procedure prescribed by the
constitution, the procedure prescribed by the state Constitution, is so
detailed, that specified the manner in which such submission shall be
made, the persons qualified to vote for the same, the date of election and
other definite standards, from which the court could safely ascertain
whether or not the submission was in accordance with the Constitution.
Thus the case of In re McConaughy (119 N.E. 408) relied upon in one of the
dissenting opinions involved in the application of the provisions of the
state Constitution of Minnesota which clearly prescribed in detail the
procedure under which the Constitution may be amended or revised. 2 This
is not true with our Constitution. In the case of revision there are no
"standards meet for judicial judgment."3
The framers of our Constitution were free to provide in the Constitution
the method or procedure for the revision or rewriting of the entire
constitution, and if such was their intention, they could and should have so
provided. Precedents were not wanting. The constitutions of the various

states of the American Union did provide for procedures for
their amendment and methods for their revision.4
Certainly We cannot, under the guise of interpretation, modify, revise,
amend, remodel or rewrite the 1935 Charter. To declare what the law is, or
has been, is a judicial power, but to declare what the law shall be is not
within Our judicial competence and authority.
Upon the other hand, since our fundamental charter has not provided the
method or procedure for the revision or complete change of the
Constitution, it is evident that the people have reserved such power in
themselves. They decided to exercise it not through their legislature, but
through a Convention expressly chosen for that purpose. The Convention
as an independent and sovereign body has drafted not an amendment but
a completely new Constitution, which decided to submit to the people for
approval, not through an act of Congress, but by means of decrees to be
promulgated by the President. In view of the inability of Congress to act, it
was within the constitutional powers of the President, either as agent of
the Constitutional Convention, or under his authority under martial law, to
promulgate the necessary measures for the ratification of the proposed
new Constitution. The adoption the new Charter was considered as a
necessary basis for all the reforms set in motion under the new society, to
root out the causes of unrest. The imperatives of the emergency
underscored the urgency of its adoption. The people in accepting such
procedure and in voting overwhelmingly for the approval of the new
Constitution have, in effect, ratified the method and procedure taken.
"When the people adopt completely revised or new constitution," said the
Court in Wheeler v. Board of Trustees (37 SE 2nd 322, 326-330), "the
framing or submission of the instrument is not what gives it binding force
and effect. The fiat of the people, and only the fiat of the people, can
breathe life into a constitution."
This has to be so because, in our political system, all political power is
inherent in the people and free governments are founded on their
authority and instituted for their benefit. Thus Section 1 of Article II of the
1935 Constitution declares that: "Sovereignty resides in the people and all
government authority emanate from them." Evidently the
term people refers to the entire citizenry and not merely to the electorate,
for the latter is only a fraction of the people and is only an organ of
government for the election of government officials.
III
The more compelling question, however is: Has this Court the authority to
nullify an entire Constitution that is already effective as it has been
accepted and acquiesced in by the people as shown by their compliance
with the decree promulgated thereunder, their cooperation in its
implementation, and is now maintained by the Government that is in
undisputed authority and dominance?
Of course it is argued that acquiescence by the people can be deduced
from their acts of conformity, because under a regime of martial law the
people are bound to obey and act in conformity with the orders of the
President, and has absolutely no other choice. The flaw of this argument
lies in its application of a mere theoretical assumption based on the
experiences of other nations on an entirely different factual setting. Such
an assumption flounders on the rock of reality. It is true that as a general
rule martial law is the use of military forces to perform the functions of civil
government. Some courts have viewed it as a military regime which can be
imposed in emergency situations. In other words, martial rule exists when
the military rises superior to the civil power in the exercise of some or all
the functions of government. Such is not the case in this country. The
government functions thru its civilian officials. The supremacy of the civil
over the military authority is manifest. Except for the imposition of curfew
hours and other restrictions required for the security of the State, the
people are free to pursue their ordinary concerns.
In short, the existing regime in this Country, does not contain the
oppressive features, generally associated with a regime of Martial law in
other countries. "Upon the other hand the masses of our people have
accepted it, because of its manifold blessings. The once downtrodden rice
tenant has at long last been emancipated — a consummation devoutly
wished by every Philippine President since the 1930's. The laborer now
holds his head high because his rights are amply protected and
respected." * A new sense of discipline has swiftly spread beyond the
corridors of government into the social order. Responding to the
challenges of the New Society, the people have turned in half a million
loose firearms, paid their taxes on undeclared goods and income in
unprecedented numbers and amount, lent their labors in massive
cooperation — in land reform, in the repair of dikes, irrigation ditches,
roads and bridges, in reforestation, in the physical transformation of the
environment to make ours a cleaner and greener land. "The entire country
is turning into one vast garden growing food for the body, for thought and
for the soul." * More important the common man has at long last been
freed from the incubus of fear.
"Martial law has paved the way for a re-ordering of the basic social
structure of the Philippines" reported Frank Valeo to the United States
Senate. "President Marcos has been prompt and sure-footed in using the
power of presidential decree under martial law for this purpose. He has
zeroed in on areas which have been widely recognized as prime sources of
the nation's difficulties — land tenancy, official corruption, tax evasion and
abuse of oligarchic economic power. Clearly he knows his targets ... there is
marked public support for his leadership..." (Bulletin Today, March 3 and 4,
1973)..
Page 153 of 158
In a similar vein, C.L. Sulzberger, a foreign affairs columnist wrote, in the
April 11 issue of The New York Times:
During his first Presidential term (1965-1969), Mr.
Marcos was discouraged by the failure of legislators to
approve urgently needed reforms. He found his second
term further frustrated by spread riots, a Maoist
uprising in Luzon and a much more serious Moslem
insurrection in the southern islands from Mindanao
across the Sulu archipelago to the frontier regions of
Malaysia and Indonesia. Manila claims this war is
Maoist-coordinated.
Mr. Marcos has now in effect taken all the reins of
power and makes no promise as to when he will
relinquish them. But, while fettering a free press,
terminating Congress and locking up some opponents
(many of whom were later amnestied), he has hauled
the Philippines out of stagnation.
Sharecropping is being ended as more than three
million acres of arable land are redistributed with state
funds. New roads have been started. The educational
system is undergoing revision, a corruption is
diminished. In non-communist Asia it is virtually
impossible to wholly end it and this disagreeable
phenomenon still reaches very high.
Mr. Marcos, an imaginative, gifted man, hopes to
reshape society by creating an agrarian middle-class to
replace the archaic sharecropper-absentee landlord
relationship. He is even pushing for a birth control
program with the tacit acceptance of the Catholic
Church. He has started labor reforms and increased
wages. (Daily Express, April 15, 1973)
As explained in this writer's opinion of April 24, 1973 on the "Constancia"
and "Manifestation" of counsel for petitioners:
The new Constitution is considered effective "if the norms created in
conformity with it are by and large applied and obeyed. As soon as the old
Constitution loses its effectiveness and the new Constitution has become
effective, the acts that appear with the subjective meaning of creating or
applying legal norms are no longer interpreted by presupposing the old
basic norm, but by presupposing the new one. The statutes issued under
the old Constitution and not taken over are no longer regarded as valid,

and the organs authorized by the old Constitution no longer competent."
(Kelsen, Pure Theory of Law, [1967].)
The essentially political nature of the question is at once made manifest by
understanding that in the final analysis, what is assailed is not merely the
validity of Proclamation No. 1102 of the President, which is merely
declaratory of the fact of approval or ratification, but the legitimacy of the
government. It is addressed more to the framework and political character
of this Government which now functions under the new Charter. It seeks to
nullify a Constitution that is already effective.
In such a situation, We do not see how the question posed by petitioners
could be judicially decided. "Judicial power presupposes an established
government capable of enacting laws and enforcing their execution, and of
appointing judges to expound and administer them. If it decides at all as a
court, it necessarily affirms the existence and authority of the government
under which it is exercising judicial power." (Luther v. Borden, 48 U.S. [7
How.] 1, 12 L. Ed. 598.)
In other words, where a complete change in the fundamental law has been
effected through political action, the Court whose existence is affected by
such change is, in the words of Mr. Melville Fuller Weston, "precluded from
passing upon the fact of change by a logical difficulty which is not to be
surmounted."5 Such change in the organic law relates to the existence of a
prior point in the Court's "chain of title" to its authority and "does not
relate merely to a question of the horizontal distribution of powers." 6 It
involves in essence a matter which "the sovereign has entrusted to the so-
called political departments of government or has reserved to be settled by
its own extra governmental action."7
The non-judicial character of such a question has been recognized in
American law. "From its earliest opinions this Court has consistently
recognized," said Justice Frankfurter, in his illuminating dissent in Baker v.
Carr, 369 U.S. 186, 7 L. Ed. 2d. 633, 722, 726, 727), "a class of controversies
which do not lend themselves to judicial standards and judicial remedies.
To classify the various instances as "political questions" is rather a form of
stating this conclusion than revealing of analysis ... The crux of the matter
is that courts are not fit instruments of decision where what is essentially
at stake is the composition of those large contests of policy traditionally
fought out in non-judicial forums, by which governments and the actions of
governments are made and unmade."
The diversity of views contained in the opinions of the members of this
Court, in the cases at bar, cannot be a case on "right" or "wrong" views of
the Constitution. It is one of attitudes and values. For there is scarcely any
principle, authority or interpretation which has not been countered by the
opposite. At bottom, it is the degree of one's faith — in the nation's
leadership and in the maturity of judgment of our people.
IN VIEW OF THE FOREGOING, the dismissal of these five
cases, and the conclusion of this Court in its judgment
of March question becomes wholly moot except for
this consideration, that, when the judges as individuals
or as a body of individuals come to decide which king or
which constitution they will support and assert to
represent, it may often be good judgment for them to
follow the lead of the men who as a practical matter
are likely to be looked to by the people as more
representative of themselves and conversely are likely
to be more directly in touch with popular sentiment. If,
however, the judges hold too strong views of their own
to be able to take this course, they may follow their
own leads at their own hazard. No question of law is
involved. (Political Questions, 38 Harvard Law Review
[1924-25], pp. 305-309.)
31, 1973 are fully justified.
Barredo, Makasiar and Esguerra, JJ., concur.
APPENDIX TO OPINION
(G.R. Nos. L-36142, 36164, 36165, 36236 & 36283)
PROVISIONS OF STATE CONSTITUTIONS SPECIFICALLY
PROVIDING FOR AMENDMENT AND REVISION @
1. Alaska (1959) — Art. XIII. Amendment and Revision.
Sec. 1. Amendments. Amendments to this constitution may be proposed by
a two-thirds vote of each house of the legislature. The secretary of state
shall prepare a ballot title and proposition summarizing each proposed
amendment, and shall place them on the ballot for the next statewide
election. If a majority of the votes cast on the proposition favor
the amendment, it becomes effective thirty days after the certification of
the election returns by the secretary of state.
Sec. 2. Convention. The legislature may call constitutional conventions at
any time.
Sec. 3. Call by referendum. If during any ten-year period a constitutional
convention has not been held, the secretary of state shall place on the
ballot for the next general election the question: "Shall there be a
Constitutional Convention?" If a majority of the votes cast on the question
are in the negative, the question need not be placed on the ballot until the
end of the next ten-year period. If a majority of the votes cast on the
Page 154 of 158
question are in the affirmative, delegates to the convention shall be chosen
at the next regular statewide election, unless the legislature provides for
the election of the election delegates at a special election. The secretary of
state shall issue the call for the convention. Unless other provisions have
been made by law, the call shall conform as nearly as possible to the act
calling the Alaska Constitutional Convention of 1955, including, but not
limited to, number of members, districts, election and certification of
delegates, and submission and ratification of revisions and ordinances. ... .
Sec. 4. Powers. Constitutional conventions shall have plenary power to
amend or revise the constitution, subject only to ratification by the people.
No call for a constitutional convention shall limit these powers of the
convention.
2. California (1879) — Art. XVIII. Amending and Revising the Constitution.
Sec. 1. Constitutional amendments. Any amendment or amendments to
this Constitution may be proposed in the Senate or Assembly, and if two-
thirds of all the members elected to each of the houses shall vote in favor
thereof, such proposed amendment or amendments shall be entered in
their Journals, with the yeas and nays taken thereon; and it shall be the
duty of the Legislature to submit such proposed amendment or
amendments to the people in such manner, and at such time, and after
such publication as may be deemed expedient. Should more amendments
than one be submitted at the same election they shall be so prepared and
distinguished, by numbers or otherwise, that each can be voted on
separately. If the people shall approve and ratify such amendment or
amendments, or any of them, by a majority of the qualified electors voting
thereon such amendment or amendments shall become a part of this
constitution.
Sec. 2. Constitutional convention. Whenever two-thirds of the members
elected to each branch of the Legislature shall deem it necessary to revise
this Constitution, they shall recommend to the electors to vote at the next
general for or against a Convention for that purpose, and if a majority of
the electors voting at such election on the proposition for a Convention
shall vote in favor thereof, the Legislature shall, at its next session, provide
by law for calling the same. The Convention shall consist of a number of
delegates not to exceed that of both branches of the Legislature, who shall
be chosen in the same manner, and have the same qualifications, as
Members of the Legislature. The delegates so elected shall meet within
three months after their election at such place as the Legislature may
direct. At a special election to be provided for by law, the Constitution that
may be agreed upon by such Convention shall be submitted to the people
for their ratification or rejection, in such manner as the Convention may
determine. The returns of such election shall, in such manner as the
Convention shall direct, be certified to the Executive of the State, who shall
call to his assistance the Controller, Treasurer, and Secretary of State, and

compare the returns so certified to him; and it shall be the duty of the
Executive to declare, by his proclamation, such Constitution, as may have
been ratified by a majority of all the votes cast at such special election, to
be the Constitution of the State of California.
3. Colorado (1876) — Art. XIX. Amendments.
Sec. 1. Constitutional convention; how called. The general assembly may at
any time be a vote of two-thirds of the members elected to each house,
recommend to the electors of the state, to vote at the next general
election for or against a convention to revise, alter and amend this
constitution; and if a majority of those voting on the question shall declare
in favor of such convention, the general assembly shall, at the next session,
provide for the calling thereof. The number of members of the convention
shall be twice that of the senate and they shall be elected in the same
manner, at the same places, and in the same districts. The general
assembly shall, in the act calling the convention, designate the day, hour
and place of its meeting; fix the pay of its members and officers, and
provide for the payment of the same, together with the necessary
expenses of the convention. Before proceeding, the members shall take an
oath to support the constitution of the United States, and of the state of
Colorado, and to faithfully discharge their duties as members of the
convention. The qualifications of members shall be the same as of
members of the senate; and vacancies occurring shall be filled in the
manner provided for filling vacancies in the general assembly.
Said convention shall meet within three months after such election and
prepare such revisions, alterations or amendments to the constitution as
may be deemed necessary; which shall be submitted to the electors for
their ratification or rejection at an election appointed by the convention for
that purpose, not less than two nor more than six months after
adjournment thereof; and unless so submitted and approved by a majority
of the electors voting at the election, no such revision, alteration or
amendment shall take effect.
Sec. 2. Amendments to constitution; how adopted. Any amendment or
amendments to this constitution may be proposed in either house of the
general assembly, and if the same shall be voted for by two-thirds of all the
members elected to each house, such proposed amendment or
amendments, together with the ayes and noes of each house hereon, shall
be entered in full on their respective journals; the proposed amendment or
amendments shall be published with the laws of that session of the general
assembly, and the secretary of state shall also cause the said amendment
or amendments to be published in full in not more than one newspaper of
general circulation in each county, for four successive weeks previous to
the next general election for members of the general assembly; and at said
election the said amendment or amendments shall be submitted to
the qualified electors of the state for their approval or rejection, and such
as are approved by a majority of those voting thereon shall become part of
this constitution.
Provided, that if more than one amendment be submitted at any general
election, each of said amendments shall be voted upon separately and
votes thereon cast shall be separately counted the same as though but one
amendment was submitted. But the general assembly shall have no power
to propose amendments to more than six articles of this constitution at the
same session.
4. Delaware (1897) — Art. XVI. Amendments and Conventions.
Sec. 1. Proposal of constitutional amendments in general assembly;
procedure. Any amendment or amendments to this Constitution may be
proposed in the Senate or House of Representatives; and if the same shall
be agreed to by two-thirds of all the members elected to each House, such
proposed amendment or amendments shall be entered on their journals,
with the yeas and nays taken thereon, and the Secretary of State shall
cause such proposed amendment or amendments to be published three
months before the next general election in at least three newspapers in
each County in which such newspaper shall be published; and if in the
General Assembly next after the said election such proposed amendment
or amendments shall upon yea and nay vote be agreed to by two-thirds of
all the members elected to each House, the same shall thereupon become
part of the Constitution.
Sec. 2. Constitutional conventions; procedure; compensation of delegates;
quorum; powers and duties; vacancies. The General Assembly by a two-
thirds vote of all the members elected to each House may from time to
time provide for the submission to the qualified electors of the State at the
general election next thereafter the question, "Shall there be a Convention
to revise the Constitution and amend the same?;" and upon such
submission, if a majority of those voting on said question shall decide in
favor of a Convention for such purpose, the General Assembly at its next
session shall provide for the election of delegates to such convention at the
next general election. Such Convention shall be composed of forty-one
delegates, one of whom shall be chosen from each Representative District
by the qualified electors thereof, and two of whom shall be chosen from
New Castle County, two from Kent County and two from Sussex County by
the qualified electors thereof respectively. The delegates so chosen shall
convene at the Capital of the State on the first Tuesday in September next
after their election. Every delegate shall receive for his services such
compensation as shall be provided by law. A majority of the Convention
shall constitute a quorum for the transaction of business. The Convention
shall have the power to appoint such officers, employees and assistants as
it may be deem necessary, and fix their compensation, and provide for the
printing of its documents, journals, debates and proceedings. The
Convention shall determine the rules of its proceedings, and be the judge
Page 155 of 158
of the elections, returns and qualifications of its members. Whenever there
shall be a vacancy in the office of delegate from any district or county by
reason of failure to elect, ineligibility, death, resignation or otherwise, a
writ of election to fill such vacancy shall be issued by the Governor, and
such vacancy shall be filled by the qualified electors of such district or
county.
5. Florida (1887) — Art. XVII. Amendments.
Sec. 1. Method of amending constitution. Either branch of the Legislature,
at any regular session, or at any special or extra-ordinary session thereof
called for such purpose either in the governor's original call or any
amendment thereof, may propose the revision or amendment of any
portion or portions of this Constitution. Any such revision or amendment
may relate to one subject or any number of subjects, but no amendment
shall consist of more than one revised article of the Constitution.
If the proposed revision or amendment is agreed to by three-fifths of the
members elected to each house, it shall be entered upon their respective
journals with the yeas and nays and published in one newspaper in each
county where a newspaper is published for two times, one publication to
be made not earlier than ten weeks and the other not later than six weeks,
immediately preceding the election at which the same is to be voted upon,
and thereupon submitted to the electors of the State for approval or
rejection at the next general election, provided, however, that
such revision or amendment may be submitted for approval or rejection in
a special election under the conditions described in and in the manner
provided by Section 3 of Article XVII of the Constitution. If a majority of the
electors voting upon the amendment adopt such amendment the same
shall become a part of this Constitution.
Sec. 2. Method of revising constitution. If at any time the Legislature, by a
vote of two-thirds of all the members of both Houses, shall determine that
a revision of this Constitution is necessary, such determination shall be
entered upon their respective Journals, with yea's and nay's thereon.
Notice of said action shall be published weekly in one newspaper in every
county in which a newspaper is published, for three months preceding the
next general election of Representatives, and in those countries where no
newspaper is published, notice shall be given by posting at the several
polling precincts in such counties for six weeks next preceding said
election. The electors at said election may vote for or against the revision
in question. If a majority of the electors so voting be in favor of revision,
the Legislature chosen at such election shall provide by law for a
Convention to revise the Constitution, said Convention to be held within six
months after the passage of such law. The Convention shall consist of a
number equal to the membership of the House of Representatives, and
shall be apportioned among the several counties in the same manner as
members of said House.

6. Idaho (1890) — Art. XIX. Amendments.
Sec. 1. How amendments may be proposed. Any amendment or
amendments to this Constitution may be proposed in either branch of the
legislature, and if the same shall be agreed to by two-thirds of all the
members of each of the two houses, voting separately, such proposed
amendment or amendments shall, with the yeas and nays thereon, be
entered on their journals, and it shall be the duty of the legislature to
submit such amendment or amendments to the electors of the state at the
next general election, and cause the same to be published without delay
for at least six consecutive weeks, prior to said election, in not less than
one newspaper of the general circulation published in each county; and if a
majority of the electors shall ratify the same, such amendment or
amendments shall become a part of this Constitution.
Sec. 3. Revision or amendments by convention. Whenever two-thirds of the
members elected to each branch of the legislature shall deem it necessary
to call a convention to revise or amend this Constitution, they shall
recommend to the electors to vote at the next general election, for or
against a convention, and if a majority of all the electors voting at said
election shall have voted for a convention, the legislature shall at the next
session provide by law for calling the same; and such convention shall
consist of a number of members, not less than double the number of the
most numerous branch of the legislature.
7. Iowa (1857) — Art. X. Amendments to the Constitution.
Sec. 3. Convention. At the general election to be held in the year one
thousand eight hundred and seventy, and in each tenth year thereafter,
and also at such times as the General Assembly may, by law, provide, the
question, "Shall there be a Convention to revise the Constitution,
and amend the same?" shall be decided by the electors qualified to vote
for members of the General Assembly; and in case a majority of the
electors so qualified, voting at such election, for and against such
proposition, shall decide in favor of a Convention for such purpose, the
General Assembly, at its next session, shall provide by law for the election
of delegates to such Convention.
8. Michigan (1909) — Art. XVII. Amendments and Revision.
Sec. 1. Amendments to constitution; proposal by legislature; submission to
electors. Any amendment or amendments to this constitution may be
proposed in the senate or house of representatives. If the same shall be
agreed to by 2/3 of the members elected to each house,
such amendment or amendments shall be entered on the journals,
respectively, with the yeas and nays taken thereon; and the same shall be
submitted to the electors at the next spring or autumn election thereafter,
as the legislature shall direct; and, if a majority of the electors qualified to
vote for members of the legislature voting thereon shall ratify and approve
such amendment or amendments, the same shall become part of the
constitution.
Sec. 4. General revision; convention; procedure. At the Biennial Spring
Election to be held in the year 1961, in each sixteenth year thereafter and
at such times as may be provided by law, the question of a General
Revision of the Constitution shall be submitted to the Electors qualified to
vote for members of the Legislature. In case a majority of the Electors
voting on the question shall decide in favor of a Convention for such
purpose, at an Election to be held not later than four months after the
Proposal shall have been certified as approved, the Electors of each House
of Representatives District as then organized shall Elect One Delegate for
each Electors of each Senatorial District as then organized shall Elect One
Delegate for each State Senator to which the District is entitled. The
Delegates so elected shall convene at the Capital City on the First Tuesday
in October next succeeding such election, and shall continue their sessions
until the business of the convention shall be completed. A majority of the
delegates elected shall constitute a quorum for the transaction of business.
... No proposed constitution or amendment adopted by such convention
shall be submitted to the electors for approval as hereinafter provided
unless by the assent of a majority of all the delegates elected to the
convention, the yeas and nays being entered on the journal. Any proposed
constitution or amendments adopted by such convention shall be
submitted to the qualified electors in the manner provided by such
convention on the first Monday in April following the final adjournment of
the convention; but, in case an interval of at least 90 days shall not
intervene between such final adjournment and the date of such election.
Upon the approval of such constitution or amendments by a majority of
the qualified electors voting thereon such constitution or amendments
shall take effect on the first day of January following the approval thereof.
9. Minnesota (1857) — Art. XIV. Amendments to the Constitution.
Sec. 1. Amendments to constitution; majority vote of electors voting makes
amendment valid. Whenever a majority of both houses of the legislature
shall deem it necessary to alter or amend this Constitution, they may
proposed such alterations or amendments, which proposed amendments
shall be published with the laws which have been passed at the same
session, and said amendments shall be submitted to the people for their
approval or rejection at any general election, and if it shall appear, in a
manner to be provided by law, that a majority of all the electors voting at
said election shall have voted for and ratified such alterations or
amendments, the same shall be valid to all intents and purposes as a part
of this Constitution. If two or more alterations or amendments shall be
submitted at the same time, it shall be so regulated that the voters shall
vote for or against each separately.
Page 156 of 158
Sec. 2. Revision of constitution. Whenever two-thirds of the members
elected to each branch of the legislature shall think it necessary to call a
convention to revise this Constitution, they shall recommend to the
electors to vote at the next general election for members of the legislature,
for or against a convention; and if a majority of all the electors voting at
said election shall have voted for a convention, the legislature shall, at their
next session, provide by law for calling the same. The convention shall
consist of as many members as the House of Representatives, who shall be
chosen in the same manner, and shall meet within three months after their
election for the purpose aforesaid.
Sec. 3. Submission to people of revised constitution drafted at convention.
Any convention called to revise this constitution shall submit any revision
thereof by said convention to the people of the State of Minnesota for
their approval or rejection at the next general election held not less than 90
days after the adoption of such revision, and, if it shall appear in the
manner provided by law that three-fifths of all the electors voting on the
question shall have voted for and ratified such revision, the same shall
constitute a new constitution of the State of Minnesota. Without such
submission and ratification, said revision shall be of no force or effect.
Section 9 of Article IV of the Constitution shall not apply to election to the
convention.
10. Nevada (1864) — Art. 16. Amendments.
Sec. 1. Constitutional amendments; procedure. Any amendment or
amendments to this Constitution may be proposed in the Senate or
Assembly; and if the same shall be agreed to by a Majority of all the
members elected to each of the two houses, such proposed amendment or
amendments shall be entered on their respective journals, with the Yeas
and Nays taken thereon, and referred to the Legislature then next to be
chosen, and shall be published for three months next preceding the time of
making such choice. And if in the Legislature next chosen as aforesaid, such
proposed amendment or amendments shall be agreed to by a majority of
all the members elected to each house, then it shall be the duty of the
Legislature to submit such proposed amendment or amendments to the
people, in such manner and at such time as the Legislature shall prescribe;
and if the people shall approve and ratify such amendment or amendments
by a majority of the electors qualified to vote for members of the
Legislature voting thereon, such amendment or amendments shall become
a part of the Constitution.
Sec. 2. Convention for revision of constitution; procedure. If at any time the
Legislature by a vote of two-thirds of the Members elected to each house,
shall determine that it is necessary to cause a revision of this entire
Constitution they shall recommend to the electors at the next election for
Members of the Legislature, to vote for or against a convention, and if it
shall appear that a majority of the electors voting at such election, shall

have voted in favor of calling a Convention, the Legislature shall, at its next
session provide by law for calling a Convention to be holden within six
months after the passage of such law, and such Convention shall consist of
a number of Members not less that of both branches of the legislature. In
determining what is a majority of the electors voting such election,
reference shall be had to the highest number of vote cast at such election
for the candidates of any office or on any question.
11. New Hamspire (1784) —
Art. 99. Revision of constitution provided for. It shall be the duty of the
selectmen, and assessors, of the several towns and places in this state, in
warning the first annual meetings for the choice of senators, after the
expiration of seven years from the adoption of this constitution, as
amended, to insert expressly in the warrant this purpose, among the
others for the meeting, to wit, to take the sense of the qualified voters on
the subject of a revision of the constitution; and, the meeting being warned
accordingly, and not otherwise, the moderator shall take the sense of the
qualified voters present as to the necessity of a revision; and a return of
the number of votes for and against such necessity, shall be made by the
clerk sealed up, and directed to the general court at their then next
session; and if, it shall appear to the general court by such return, that the
sense of the people of the state has taken, and that, in the opinion of the
majority of the qualified voters in the state, present and voting at said
meetings, there is a necessity for a revision of the constitution, it shall be
the duty of the general court to call a convention for that purpose,
otherwise the general court shall direct the sense of the people to be
taken, and then proceed in the manner before mentioned. The delegates
to be chosen in the same manner, and proportioned, as the
representatives to the general court; provided that no alterations shall be
made in this constitution, before the same shall be laid before the towns
and unincorporated places, and approved by two thirds of the qualified
voters present and voting on the subject.
12. Oklahoma (1907) — Art. XXIV. Constitutional Amendments.
Sec. 1. Amendments proposed by legislature; a submission to vote.
Any amendment or amendments to this Constitution may be proposed in
either branch of the Legislature, and if the same shall be agreed to by a
majority of all the members elected to each of the two houses, such
proposed amendment or amendments shall, with yeas and nays thereon,
be entered in their journals and referred by the Secretary of State to the
people for their approval or rejection, at the next regular general election,
except when the Legislature, by a two-thirds vote of each house, shall
order a special election for that purpose. If a majority of all
the electors voting at such election shall vote in favor of any amendment
thereto, it shall thereby become a part of this Constitution.
If two or more amendments are proposed they shall be submitted in such
manner that electors may vote for or against them separately.
No proposal for the amendment or alteration of this Constitution which is
submitted to the voters shall embrace more than one general subject and
the voters shall vote separately for or against each proposal submitted;
provided, however, that in the submission of proposals for
the amendment of this Constitution by articles, which embrace one general
subject, each proposed article shall be deemed a single proposals or
proposition
Sec. 2. Constitutional convention to propose amendments or new
constitution. No convention shall be called by the Legislature to
propose alterations, revisions, or amendments to this Constitution, or
to propose a new Constitution, unless the law providing for such
convention shall first be approved by the people on a referendum vote at a
regular or special election, and any amendments, alterations, revisions, or
new Constitution, proposed by such convention, shall be submitted to the
electors of the State at a general or special election and be approved by a
majority of the electors voting thereon, before the same shall become
effective Provided, That the question of such proposed convention shall be
submitted to the people at least once in every twenty years.
13. Oregon (1859) — Art. XVII. Amendments and Revisions.
Sec. 1. Method of amending constitution. Any amendment or amendments
to this Constitution may be proposed in either branch of the legislative
assembly, and if the same shall be agreed to by a majority of all the
members elected to each of the two houses, such proposed amendment or
amendments shall, with the yeas and nays thereon, be entered in their
journals and referred by the secretary of state to the people for their
approval or rejection, at the next regular election, except when the
legislative assembly shall order a special election for that purpose. If a
majority of the electors voting on any such amendment shall vote in favor
thereof, it shall thereby become a part of this Constitution. The votes for
and against such amendment, or amendments, severally, whether
proposed by the legislative assembly or by initiative petition, shall be
canvassed by the secretary of state in the presence of the governor, and if
it shall appear to the governor that the majority of the votes cast at said
election on said amendment, or amendments, severally, are cast in favor
thereof, it shall be his duty forthwith after such canvass, by his
proclamation, to declare the said amendment, or amendments, severally,
having received said majority of votes to have been adopted by the people
of Oregon as part of the Constitution thereof, and the same shall be in
effect as a part of the Constitution from the date of such proclamation.
When two or more amendments shall be submitted in the manner
aforesaid to the voters of this state at the same election, they shall be so
submitted that each amendment shall be voted on separately. No
Page 157 of 158
convention shall be called to amend or propose amendments to this
Constitution, or to propose a new Constitution, unless the law providing for
such convention shall first be approved by the people on a referendum
vote at a regular general election. This article shall not be construed to
impair the right of the people to amend this Constitution by vote upon an
initiative petition therefor.
Sec. 2. Method of revising constitution. (1) In addition to the power to
amend this Constitution granted by section 1, Article IV, and section 1 of
this Article, a revision of all or part of this Constitution may be proposed in
either house of the Legislative Assembly and, if the proposed revision is
agreed to by at least two-thirds of all the members of each house, the
proposed revision shall, with the yeas and nays thereon, be entered in their
journals and referred by the Secretary of State to the people for their
approval or rejection, notwithstanding section 1, Article IV of this
Constitution, at the next regular state-wide primary election, except when
the Legislative Assembly orders a special election for that purpose. A
proposed revision may deal with more than one subject and shall be voted
upon as one question. The votes for and against the proposed revision shall
be canvassed by the Secretary of State in the presence of the Governor
and, if it appears to the Governor that the majority of the votes cast in the
election on the proposed revision are in favor of the proposed revision, he
shall, promptly following the canvass, declare, by his proclamation, that the
proposed revision has received a majority of votes and has been adopted
by the people as the Constitution of the State of Oregon, as the case may
be. The revision shall be in effect as the Constitution or as a part of this
Constitution from the date of such proclamation.
14. Utah (1896) — Art. 23. Amendments.
Sec. 1. Amendments; method of proposal and approval. Any amendments
to his Constitution may be proposed in either house of the Legislature, and
if two-thirds of all the members elected of the two houses, shall vote in
favor thereof, such proposed amendment or amendments shall be entered
on their respective journals with the yeas and nays taken thereon; and the
Legislature shall cause the same to be published in at least one newspaper
in every county of the State, where a newspaper is published, for two
months immediately preceding the next general election, at which time the
said amendment or amendments shall be submitted to the electors of the
State, for their approval or rejection, and if a majority of the electors voting
thereon shall approve the same, such amendment or amendments shall
become part of this Constitution. If two or more amendments are
proposed, they shall be so submitted as to enable the electors to vote on
each of them separately.
Sec. 2. Revision of the Constitution by convention. Whenever two-thirds of
the members, elected to each branch of the Legislature, shall deem it
necessary to call a convention to revise or amend this Constitution, they
 Page 158 of 158

shall recommend to the electors to vote at the next general election, for or
against a convention, and, if a majority of all the electors, voting at such
election, shall vote for a convention. The Legislature, at its next session,
shall provide by law for calling the same. The convention shall consist of
not less than the number of members in both branches of the Legislature.

15. Wyoming (1890) — Art. XX. Amendments.

Sec. 1. Procedure for amendments. Any amendment or amendments to this

Constitution may be proposed in either branch of the legislature, and, if
the same shall be agreed to by two-thirds of all the members of the two
houses, voting separately, such proposed amendment or amendments
shall, with the yeas and nays thereon, be entered on their journals, and it
shall be the duty of the legislature to submit such amendment or
amendments to the electors of the state at the next general election, in at
least one newspaper of general circulation, published in each county, and if
a majority of the electors shall ratify the same, such amendment or
amendments shall become a part of this constitution.

Sec. 2. How voted for. If two or more amendments are proposed, they shall
be submitted in such manner that the electors shall vote for or against
each of them separately.

Sec. 3. Constitutional convention; provision for. Whenever two-thirds of the

members elected to each branch of the legislature shall deem it necessary
to call a convention to revise or amend this constitution, they shall
recommend to the electors to vote at the next general election for or
against a convention, and if a majority of all the electors voting at such
election shall have voted for a convention, the legislature shall at the next
session provide by a law for calling the same; and such convention shall
consist of a number of members, not less than double that of the most
numerous branch of the legislature.

Sec. 4. New constitution. Any constitution adopted by such convention

shall have no validity until it has been submitted to and adopted by the
people.